Electronic Payments Services.
This Addendum is being entered into by JustiFi for itself and on behalf of and as agent of Bank (as
below). Customer engages JustiFi and Bank to provide the Payment Processing Services, including
funds transfer, authorization, processing, and settlement services and gateway and network services for
transactions and other electronic funds transfers (“Transactions“). The Payment
Processing Services include
routing and processing transactions for clearing and settlement through electronic funds transfers
network(s) (“Payment Networks”) owned or licensed by VISA, MasterCard, Discover,
American Express and/or any
other payment network. Customer authorizes JustiFi to submit Transactions to and receive settlement from
each Payment Network on behalf of Customer.
JustiFi and Bank shall follow procedures and time schedules it deems appropriate to timely perform the
Payment Processing Services. JustiFi may establish, modify, or substitute equipment, processing
programs, or procedures as reasonably necessary to accommodate processing demand for the System.
Customer will provide JustiFi any and all data, instructions, and materials (“Customer
Materials”) from time
to time during the term of this Addendum as is required for JustiFi to perform the Payment Processing
Services. Customer will be solely responsible for creating, managing, reviewing, and otherwise
Customer Materials shall be responsible for complying with any and all Applicable Laws applicable to the
use, and the method and manner of disclosure thereof. Customer agrees that JustiFi may store, disclose,
use the Customer Materials provided to JustiFi by Customer under this Addendum to the extent and only in
such manner that such storage, disclosure, and use shall be for purposes of performing the obligations
JustiFi under this Addendum or for purposes permitted under federal, state, or local statutes,
and requirements applicable to JustiFi
From time to time, JustiFi and Bank may make or offer ACH services to Customer subject to the terms of
Attachment 1 and compliance with Nacha rules and regulations and any other rules or requirements
Customer by JustiFi or Bank from time to time.
Compliance with Applicable Law and Operating Regulations.
Customer shall comply with Applicable Law and the Operating Regulations, as
amended from time to time.
Electronic Payments Services.
a. Customer consents to JustiFi and Bank collecting and disclosing Transaction Data, Customer data, and
other information about Customer to Bank and the Payment Networks. Customer consents to Bank and the
Payment Networks using such information to perform their responsibilities in connection with this
Addendum, promote the Payment Networks, perform analytics and create reports, and for any other lawful
business purposes including commercial marketing communication purposes and important transactional or
relationship communications from the Payment Networks.
If Customer desires to opt-out of marketing messages, Customer shall
notify JustiFi of its intent to opt-out. Opting out of marketing
messages will not preclude Customer from receiving important
transactional or relationship communications from a Payment Network,
Bank, and JustiFi.
Customer is responsible to Bank for any losses incurred by Bank in
connection with Transactions submitted to Bank via JustiFi.
- Card Acceptance Procedures.
Visa Chargeback Auto Acceptance Response Service. To the extent JustiFi and Bank make available to
Customer the Visa Chargeback Auto Acceptance Response Service, Customer agrees to comply with Schedule
Card Not Present.
CNP Transactions. Upon prior written approval by JustiFi,
Customer may accept Card Not Present (“CNP”)
transactions. JustiFi reserves the right to terminate CNP transactions
in the event that there is any change to Customer’s business, including
any material change in the customers, products, management, or employees
of the business. If at any time the volume of CNP transactions
substantially exceeds the projected annual volume stated on the
Customer’s application, or if at any time JustiFi or Bank suspect fraud,
money laundering, or violations of any laws, regulations, rules, or
industry standards, JustiFi and Bank may, in its sole and absolute
discretion and in addition to other remedies that JustiFi and Bank may
have: (i) refuse to process the excessive or suspect CNP transactions;
(ii) process the CNP transactions and retain the funds received from
processing until such time as the excess or suspect charges are found to
be valid or invalid and processed in accordance with applicable laws,
regulations, rules, and industry standards; (iii) suspend the CNP
transactions; (iv) terminate or amend this Addendum and/or the
Timing of Charges. You may not submit a Card charge to Bank until
you have shipped the goods or delivered the services that were
purchased. There are some situations in which Payment Network Rules
allow advance payments. Please contact PF Supplier if you have
Procedures. You understand and agree that CNP Transactions: (A) do
not require the Cardholder’s signature on the Sales Draft or sales slip
(with the exception of Order Forms authorizing a Recurring Transaction,
which will be authorized by the Cardholder electronically); (B) require the
Merchant to obtain the valid Expiration Date for each Card used for a CNP
Transaction; and (C) require the Expiration Date of the Card be submitted as
part of the Authorization process.
Authorizations. You understand that Authorizations for CNP
Transactions are subject to Chargeback and such Authorizations do not
guarantee the validity or collectability of the Card Transaction. You agree
to take reasonable additional steps to verify the identity of the authorized
Cardholder on these types of transactions, especially when merchandise is
shipped to a third party. Customer acknowledges and agrees that the receipt
of an Authorization code indicating approval does not guarantee that the CNP
Transaction will not be subject to a Chargeback. Customer is encouraged to
use (when not prohibited under Applicable Law) fraud reduction systems
offered by the Card Networks, such as AVS and CVV2/CVC2 in CNP Transactions.
Document Retrievals. In order to satisfy a Retrieval Request for CNP
Transactions, the following Transaction receipt information must be provided
by Customer: (A) the Cardholder Account number, (B) the Card expiration
date, (C) the Cardholder name, (D) the Transaction date, (E) the Transaction
amount, (F) the Authorization code, (G) the Merchant’s name, (H) the
Merchant’s location, (I) a description of the goods or services, (J) the
“ship to” address, and (K) the AVS response code (if AVS was used), unless
other requirements are specified in Payment Network Rules.
Card Transaction Rules. If Bank authorizes you to accept Electronic
Commerce Transactions, you agree to comply with all the provisions of the
Operating Regulations pertaining to Electronic Commerce Transactions and the
You shall at all times maintain a secure site for the transmission of
data relating to the processing of Electronic Commerce Transactions. You
shall be responsible for ensuring, obtaining and maintaining site
security, for the encryption of all data, and for any and all storage of
data both in electronic and physical form.
You must identify each Electronic Commerce Transaction as such when
submitted by using the appropriate Electronic Commerce Transaction
indicator values specified by the Payment Networks.
You may not submit a request for Authorization for an Electronic
Commerce Transaction that has failed a 3-D Secure Authentication
Request, if you are using 3-D Secure Authentication.
You shall display on your web site in a prominent manner: (a) the
address of the Merchant’s Principal Place of Business, including
Merchant’s country of domicile, located on the same screen view as the
checkout screen used to present the total purchase amount, or within the
sequence of web pages the Cardholder accesses during the checkout
process; (b) a complete and accurate description of the goods or
services offered; (c) your merchandise return and refund policy clearly
displayed on the checkout screen or on the sequence of web pages before
transaction security used to secure cardholder account data during the
ordering and payment process; (e) a customer service contact, including
electronic mail address or telephone number; (f) Transaction currency;
(g) export restrictions (if known); and (h) your delivery/fulfillment
You shall provide Cardholders a secure transaction method, such as
Secure Socket Layer or 3-D Secure.
Each website operated by or for you must display the Marks of the
Payment Networks for the Card types which are accepted by the Customer,
as specified in the Payment Network Rules. You may only accept the Card
types specified in your Customer Application and approved by Bank. If
you accept a different Card type, Bank may process the resulting
Transaction subject to its standard terms for acceptance of such Card
type, but Bank will not be required to process additional Card type
Transactions. You must discontinue accepting such other Card types
unless we and Bank agree in writing to modify this Addendum.
You agree to include, in addition to the other data required under the
Operating Regulations the following data on a Transaction receipt
completed for an Electronic Commerce Transaction: (a) Your Merchant name
most recognizable to the cardholder, such as: Merchant’s “doing business
as” name or Merchant’s “universal resource locator” (URL), or Merchant
name used in the Clearing Record; (b) Customer service contact
information including telephone country code and area code (If you
deliver goods or services internationally, Merchant must list both local
and internationally accessible telephone numbers); (c) Terms and
conditions of sale, if restricted; (d) The exact date any free trial
period ends, if offered; (e) Cancellation policies; (f) Merchant’s
online address; and (g) A unique transaction identification number. For
receipts completed by internet payment service providers, see additional
requirements set forth in the Payment Network Rules.
You will provide a completed copy of the Transaction record to the
Cardholder at the time the purchased goods are delivered or services
performed. You may deliver the Transaction receipt in either of the
following formats: (a) electronic (e.g., e-mail or fax), or (b) paper
(e.g., hand-written or terminal-generated). You shall not transmit the
Cardholder Account number or card expiration date to the Cardholder over
the Internet or on the Transaction receipt. You must include the Payment
Network Mark and the last 4 digits of the Card used for the Transaction.
You must not store a card verification value or similar security code
subsequent to authorization.
You may not store Card Account Numbers or other credentials for future
use without the approval of PF. If approval is granted, you must follow
procedures for collecting, storage and use of the Card credentials as
required by Payment Network Rules, by Bank and PF, including obtaining
the Cardholders Agreement to such storage and future use in the form and
including content as prescribed by Payment Network Rules and disclosure
of applicable return and refund policies.
Authorization. Customer will submit to JustiFi a Transaction only if
the Transaction is made or approved by the Cardholder who is issued the Card
used in the Transaction. Customer will obtain Authorization for the total
amount of the Transaction, including the tip and tax, if appliable, and
shall record the positive Authorization code on the Sales Draft prior to
completing the Transaction. Such Authorization must be obtained for every
Transaction on the transaction date and prior to completing the Transaction,
unless otherwise specified in the Operating Regulations. If Customer
completes a Transaction without Authorization, Customer will be responsible
for any Chargeback of the Transaction and this Addendum and/or the Agreement
shall be subject to immediate termination without notice.
Declines or Illegal Transactions. Customer shall not submit a Card
Transaction for processing that (i) has received a decline response unless
the Card Transaction receives a subsequent approval in accordance with
Operating Regulations or (ii) Customer knows or should have known is illegal
in either the Customer’s jurisdiction or the Cardholder’s jurisdiction.
Recovery of Cards. Customer shall use its best efforts, by reasonable
and peaceful means, to retain or recover any Card (i) if Customer is advised
by the Processor to retain it, (ii) if Customer has reasonable grounds to
believe such Card is counterfeit, fraudulent, or stolen, or (iii) if the
Card’s embossed account number, indent printed account number, and/or
encoded account number do not match, or an unexpired Card does not have the
appropriate hologram on the Card face. The obligation of Customer to retain
or recover a Card imposed by this section does not authorize a breach of the
peace or any injury to persons or property, and Customer will hold JustiFi
and its licensors harmless from any claim arising from any injury to person
or property or other breach of the peace.
Transaction Records. Customer shall record each Card Transaction and
Credit Voucher by following procedures in a format and manner specified by
JustiFi and using records such as Sales Drafts, sales slips, or electronic
processing records and methods, as directed by JustiFi. Customer will
complete each sale as a single Transaction, except as approved by JustiFi
and Bank in writing. Customer will deliver to the Cardholder an accurate and
complete copy of the Transaction, no later than the time of delivery of the
goods or performance of the services, using a format approved by the Payment
Networks. Customer must provide on the Cardholder’s copy of the Transaction
the truncated Card account number (last four digits only) of the Cardholder.
Customer must not request a card verification value or similar security code
from the Cardholder for a card-present Transaction.
Returns; Price Adjustments and Credit Vouchers.
Returns Policy. Customer may limit returned merchandise or limit
price adjustments, to the same extent as for sales not involving a Card,
provided Customer properly discloses its policy to the Cardholder before
the sale, the limits are properly disclosed on the Sales Draft before
the Cardholder signs in, and the purchased goods or services are
delivered to the Cardholder at the time the Card Transaction takes
place. Proper disclosure means the words such as “NO REFUND,” “EXCHANGE
ONLY,” or “IN STORE CREDIT ONLY” (or the applicable policy) are printed
in large letters near the signature line on all copies of the Sales
Draft prior to obtaining the Cardholder’s signature on the Sales Draft.
Customer shall submit any changes to its return policy to JustiFi in
writing at least thirty (30) days before the change and Customer will
not implement any change to which JustiFi objects. JustiFi may retain a
copy of the request, including the new return policy, and the old return
policy. Customer’s policies will not override the Operating Regulations
and will not prevent Chargebacks to Customer under Operating
No Refunds in Cash. Customer shall not make refunds or
adjustments for a Card Transaction in cash (except when required by
Applicable Law), but will submit to JustiFi a Credit Voucher for a
refund or Adjustment to the Cardholder Account within three (3) Business
Days of the refund or Adjustment and deliver to the Cardholder a copy of
the Credit Voucher at the time the refund or Adjustment is made. The
Credit Voucher must include the refund date and amount and a brief
description of the refund or Adjustment in sufficient detail to identify
the Card used and original Charge. The amount of the Credit Voucher must
not exceed the amount of the original except for any amount which
Customer agrees to reimburse the Cardholder for return postage. Customer
may not deliver a Credit Voucher to JustiFi for any refund or Adjustment
of a purchase not originating as a Transaction with the same Cardholder
requesting the refund or Adjustment, a Transaction not made with
Customer, or a Transaction not originally processed by JustiFi. Customer
will not complete a Credit Voucher for a Card issued to it or its
principals or employees except for a valid refund of a Transaction
originating with Customer. Customer may not receive money from a
Cardholder and subsequently deliver to JustiFi a Credit Voucher to make
a deposit to the account of the Cardholder. JustiFi may delay processing
Credit Vouchers on any day to the extent they exceed the total of valid
Charges presented on that day and the balance in the Custodial Account
available to cover the Credit Vouchers, until the sum of valid Charges
and the balance in the Custodial Account is sufficient to cover the
Post-termination Credits. After this Addendum terminates, JustiFi is
not obligated to process any Credit Voucher that Customer submits. All
Chargebacks related to Credit Vouchers will be Customer’s responsibility.
Prepayments. Customer may deposit a Card Transaction for prepayment
if it advises the Cardholder of the immediate billing at the time of the
Transaction, for: (i) prepayment of services, excluding estimates for
services to be provided and (ii) full payment of custom ordered merchandise,
manufactured to the Cardholder’s specifications.
Customer Locations. Customer shall promptly provide JustiFi with the
current address of each of its offices and locations. Customer shall permit
JustiFi and/or its licensors to: (i) identify the location of each Card
Transaction on the Sales Draft; and (ii) include this identification in the
clearing record submitted to JustiFi.
Document Requests. Customer shall respond to all Transaction
Documentation Requests (Retrieval Requests) within the timeframes specified
in the applicable Operating Regulations. If Customer does not respond to a
Transaction Documentation Request or the response is late or incomplete,
Customer shall be subject to Chargeback of the Transaction even if otherwise
Intellectual Property Rights.
Display of Card Brands. Customer shall display Visa, Mastercard,
Discover Network, and American Express, if applicable, other Payment
Network decals, Marks, and advertising and promotional materials in
compliance with the Operating Regulations. Customer shall only display
Visa, Mastercard, Discover Network, or American Express approved decals,
Marks and advertising and promotional materials for the Card type(s)
that Customer selected on the Application as approved by JustiFi.
Customer is prohibited from using each Payment Network’s Marks other
than as expressly authorized in writing by JustiFi. Customer shall not
use the Payment Network Marks other than to display decals, signage,
advertising and other forms depicting the Payment Network Marks in the
forms that are provided to Customer by JustiFi. Customer may use the
Payment Network Marks only to promote the payment services covered by
the Payment Network Marks by using them on decals, indoor and outdoor
signs, websites, advertising materials and marketing materials. Customer
shall not use the Payment Network Marks in any way that may give a
customer the impression that the products or services offered by
Customer are sponsored or guaranteed by the owners of the Payment
Network Marks. Customer shall modify or cease any non-compliant usage of
Payment Network Marks within five (5) Business Days of written notice;
failure to comply with such notice shall be a material breach of this
Addendum and the Agreement. Customer’s use of Payment Network Marks is
subject to the terms herein. Customer shall cease all use of Payment
Network Marks upon termination of this Addendum for any reason.
JustiFi, Bank, Processor, and Payment Network Marks. Customer
shall not use the logo, name, trademark, or service mark of JustiFi, its
licensors, and/or Processor in any manner, including without limitation,
in any advertisements, displays, or press releases, without the prior
written consent of JustiFi, its licensors, or Processor, as applicable.
Customer will not contest the ownership of the Payment Networks’ marks
for any reason. Payment Network may at any time, immediately and without
advance notice, prohibit Customer from suing such Payment Network’s
marks for any reason. Notwithstanding the foregoing, Customer may use
Processor Marks in connection with Optional Services as expressly
permitted in the applicable Schedule to this Addendum.
Non-Bank Card Transactions.
Non-Bank-Cards. Non-Bank Card transactions that are provided to Customer include certain
transactions made using
Discover Network and American Express, as described below. The Payment Processing Services provided,
processed, and other matters contemplated under this Section 6 are subject to all of the terms and
conditions of this
Addendum, as applicable, except to the extent the terms of this Section 5 or the applicable schedule
with another provision of this Addendum, in which case the terms of this Section 5 and the applicable
control. Customer authorizes JustiFi and its licensors to share information from Customer’s Application
Express, Discover Network, and any other non-bank payment networks.
American Express. If Customer accepts American Express, Customer
agrees and understands that if, based upon Customer’s anticipated Card
Transaction volume Customer does not qualify for the OptBlue Program but
has otherwise been approved for accepting American Express transactions,
Customer’s authorizations and settlements will be obtained from and
funded directly by American Express. American Express may provide
Customer with its own agreement that governs those transactions. Any
additional fees charged by American Express for these services will be
billed to Customer. JustiFi and its licensors assume no liability with
regard to any such transactions, including but not limited to the
funding and settlement of American Express transaction.
Customer acknowledges that it may be converted from the OptBlue Program to a direct Card
acceptance relationship with American Express if and when Customer becomes a High CV Merchant.
Upon conversion, Customer expressly agrees (A) the Customer will be bound by American Express’
then current Card Acceptance Agreement, (B) American Express will set pricing and other fees
payable by the Customer for Card Acceptance, and (C) American Express will be responsible for
settlement in accordance with the American Express Card Acceptance Agreement.
American Express is a third-party beneficiary of this Addendum and
may enforce the terms of this Addendum against Customer.
Notwithstanding the foregoing, American Express shall have no
obligations to Customer.
Customer may opt out of accepting American Express Cards at any time without
directly or indirectly affecting its rights to accept any other charge,
credit, debit, stored value or smart cards, account access devices, or other
payment cards, services, or products.
Discover Network. As to Discover Network Cards, Customer may not use,
store, or disclose Card Transaction data or Customer information except as
permitted under the terms of the Discover Operating Regulations, including
the technical specifications and the Dispute Rules Manual. Customer agrees
that it may not require a minimum or maximum purchase amount for use of
Discover Network Card or impose any surcharge or convenience fee on Card
Transactions except as permitted by the Discover Operating Regulations and
JCB; Diner’s Club; UnionPay; DinaCard. If Customer accepts JCB,
Diners Club International, UnionPay, Bccard, and Dinacard Customer agrees to
be bound by the Discover Network provisions of this Addendum as set forth in
this Section 6. Customer acknowledges and agrees that JCB Diners Club
International, and UnionPay transactions will be processed under and subject
to Discover Network Payment Network Rules.
Provisional Payments. All credits to the Custodial Account and
payments to JustiFi are provisional and are subject to collection by JustiFi
and its licensors.
Non-Bank Card Transactions are provided to you by Processor and include certain Transactions made using
Discover Network and American Express, except the American Express OptBlue® Program, as described in
Schedule A to this Addendum. The Payment Processing Services provided, transactions processed, and other
matters contemplated herein are subject to all of the terms and conditions of this Addendum, as
applicable, except to the extent the terms of this subsection or the applicable Schedule directly
conflict with another provision of this Addendum, in which case the terms of this subsection and
applicable Schedule will control. You authorize Bank to share information from your Customer Application
with American Express, Discover Network, and any other Non-Bank Payment Network.
- Settlement Terms.
Settlement Amounts. All settlements received from Card Transactions
will be net of amounts:
That Payment Networks are permitted to deduct pursuant to their
respective Payment Network Rules, including without limitation,
Chargebacks, Credits, interchange fees, other fees, fines and
assessments arising from PF Supplier’s Customer’s Card Transactions,
All Fees and other charges payable to Bank. All credits to the Customer
are provisional and are subject to collection by Bank,
Set off from settlement amounts due Customer of any amounts payable to Bank
or any of its Affiliates pursuant to this Customer Agreement, including
withholding of amounts of any deficiencies in any Reserve Account with
respect of this Addendum, and
Set off from settlement amounts payable to Customer any amounts owed to Bank
or any of its Affiliates not arising out of or related to this Addendum.
Alternatively, Bank may elect, in its sole discretion, to invoice Customer
for any of the amounts listed in this Section 7.a.i.-iv., which invoice
shall be due and payable on the date of issuance.
Customer will have no ownership, security interest or beneficial interest in
any funds held by Bank in respect of Transactions whether or not
attributable to Transactions submitted by or on behalf of Customer or
payable to Customer pursuant to this Addendum, except pursuant to the
deposit Agreement governing the Customer Settlement Account.
Delay in Settlement.
Bank will not be liable for delays in providing Settlement to Customer.
Without limitation of the foregoing, Bank may, in its sole discretion
and without notice to Customer, delay Settlement when Bank determines
that circumstances warrant delay or for regulatory reasons or when fraud
or other malfeasance is suspected.
NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, BANK’S
LIABILITY FOR ANY DELAY IN FUNDING TRANSACTIONS FOR ANY REASON, OTHER
THAN FOR CUSTOMER’S FAILURE TO MEET THE REQUIREMENTS OF THIS ADDENDUM OR
IF A PAYMENT NETWORK CAUSES A DELAY IN SETTLEMENT OR AS OTHERWISE
PROVIDED HEREIN, FOR WHICH BANK SHALL BEAR NO LIABILITY, WILL BE LIMITED
TO INTEREST COMPUTED FROM THE DATE WHEN SETTLEMENT WAS DUE ABSENT
EXCUSED DELAYS TO THE DATE THAT THE TRANSACTION IS FUNDED AT THE RATE OF
THE FEDERAL FUNDS AS SET BY THE FEDERAL RESERVE BANK OF NEW YORK, NEW
YORK, FROM TIME TO TIME, LESS ONE PERCENT (1%), BUT NOT LESS THAN ZERO
Settlement during Default. In addition to any other remedies
available to JustiFi and Bank under this Addendum or the Agreement, Customer
agrees that should any Default Event occur, JustiFi and Bank may, with or
without notice, change processing or payment terms and/or suspend credits or
other payments of any and all funds, money and amounts now due or hereafter
to become due pursuant to the terms of this Agreement, until JustiFi and its
licensors have had reasonable opportunity to investigate such event,
provided that such action shall not delay or waive JustiFi’s or its
licensor’s right to any other remedy available to it or to any of JustiFi’s
or its licensor’s Affiliates under this Addendum, at law, or in equity.
IRS Reporting and Backup Withholding. Each year, a Form 1099-K, which
reports to the IRS and certain state governments the Gross amount of the
reportable payment Card Transactions that were processed during the tax
year. To tile the Form 1099-K, the information provided by Customer
regarding its taxpayer identification number (“TIN”) and
related information must be accurate. JustiFi and Bank will be required to
deduct and withhold income tax from funds if (i) a TIN is not provided; or
(ii) the IRS notifies JustiFi or Bank that the TIN does not match the tax
filing name provided. Accordingly, Customer agrees to provide to JustiFi the
correct name and TIN used by Customer when filings its tax returns that
includes the Card Transactions processed pursuant to this Addendum.
Collection of Amounts Owed. This Addendum is a contract whereby
JustiFi is extending financial accommodations to Customer within the meaning
of Section 365(c) of the U.S. Bankruptcy Code. Customer’s right to receive
any amounts due or to become due from JustiFi or Bank is expressly subject
and subordinate to Chargebacks, setoffs, liens, security interests and
JustiFi’s or its licensors rights to withhold Settlement Funds under this
Addendum, without regard to whether such Chargebacks, setoffs, liens,
security interests, and rights to withhold Settlement Funds are being
applied to claims that are liquidated, unliquidated, fixed, contingent,
matured, or unmatured.
Customer Reserve Accounts.
Reserve Account. If Bank, in its sole discretion requires, Bank
will establish a Reserve Account to be held in and owned exclusively by
Bank, subject to the following terms and a Reserve Account deposit
agreement in a form provided by Bank. Bank, in its sole discretion, may
access and apply funds held in the Reserve Account to satisfy any and
all obligations of Customer under this Addendum, including such
obligations of Customer and Customer’s payment facilitator or PF
Suppliers under their respective agreements pertinent to Customer, under
the Operating Regulations or Applicable Law. Such recourse to the
Reserve Account shall not be Bank’s sole remedy mountt to such
obligations and Bank may exercise any remedies available to Bank under
this Sponsorship Agreement or Applicable Law. Bank may exercise
available remedies in the order and apply proceeds therefrom to the
obligations as it determines in its sole discretion.
Funding. The Reserve Account may be funded by all or any
combination of the following: (i) one or more debits to your Customer
Settlement Account, wherever held, or any other accounts held by Bank or
any of its Affiliates, at any financial institution maintained in the
name of Customer, any of its principals, or any of its guarantors, or if
any of same are authorized signers on such account; (ii) withholding any
payments otherwise due to you, including any amount due arising from
optional services provided by Bank or Processor; (iii) your delivery to
Bank of a letter of credit; or (iv) if we so agree or require, your
pledge to Bank of a freely transferable and negotiable certificate of
deposit. Any such letter of credit or certificate of deposit shall be
issued or established by Bank or a financial institution acceptable to
Bank and shall be in a form satisfactory to Bank. In the event of
termination of this Agreement by any Party, an immediate Reserve Account
may be established without notice and funded in the manner provided
above. Any Reserve Account will be held by Bank for the greater of one
hundred eighty (180) days from the date of the last Card Transaction
processed under the Agreement, plus the period allowed for or of any
Chargeback, warranty, guarantee, and/or return policy on goods and/or
services sold. We will hold funds pursuant to this Section 13.1.22. in
master account(s) which include funds due other Entities, with your
funds allocated to a separate sub-account. Unless specifically required
by Applicable Law, you shall not be entitled to interest on any funds
held by Bank in a Reserve Account.
Insufficient Funds. If your funds in the Reserve Account are not
sufficient to cover the Chargebacks, adjustments, fees and other charges
and amounts due from you, or if the funds in the Reserve Account have
been released, you agree to promptly pay Bank such sums upon request.
Right of Set-Off. For sake of clarification and notwithstanding
anything in the Agreement to the contrary, if Bank deducts, holds back,
suspends, recoups, offsets or sets off any Settlement monies or amounts
otherwise due you pursuant to the terms of this Agreement (collectively
“Set Off Funds”), you acknowledge that such Set Off
Funds may be held in a commingled Reserve Account(s) of Bank.
Calculation of Fees.
Reimbursement of Fees. Fees include a portion based on the
interchange reimbursement fee for which each Card Transaction qualifies
under the applicable Payment Network Rules. If a Card Transaction fails
to qualify for the anticipated interchange levels or if Customer
inadvertently or intentionally accepts a Card Transaction other than the
type anticipated for Customer (including a different Card type), then,
as applicable to the pricing method, Customer will be charged a higher
interchange, discount rate, or Non-Qualified Interchange Fee, as well as
any applicable surcharge for that Card Transaction.
Anticipated Card Transaction Volumes. The fees for the Payment Processing Services set forth in
the Order Form are based upon assumptions associated with the anticipated annual volume and average Card
Transaction size for all Payment Processing Services as set forth in this Addendum and Customer’s
methods of doing business. If the actual volume or average Card Transaction size are not as expected or
if Customer alters its methods of doing business, JustiFi may adjust Customer’s discount fee and
transaction fees without prior notice.
Commercial Card Interchange Service. Visa and MasterCard apply
different interchange rates to commercial Card Transactions based on the
level of transaction detail that Customer provides in its settlement
files. Customer must include the sales tax amount for commercial Card
Transactions to qualify for lower interchange rates and must meet the
qualification requirements set forth by Visa and Mastercard, as may be
updated. If Customer does not report the sales tax amount in a separate
and distinct field in its settlement files, the Commercial Card
Interchange Service (“CCIS”) will be used to calculate
and transmit the sales tax amount for those commercial Card Transactions
that will qualify for lower exchange rates. The fee portion of the
qualifying interchange rate saved will show on Customer’s monthly
statements as “Commercial Card IC Savings Adjustment.” Bank will enroll
Customer for CCIS in accordance with Processor’s then-current set-up
- Confidentiality and Privacy.
Cardholder Data. Customer shall not use, disclose, store, sell, or
disseminate any Cardholder Data obtained in connection with a Card
Transaction (including the names, addresses, and Card account numbers of
Cardholders) except for purposes of authorizing, completing, and settling
Card Transactions and resolving any Chargebacks, Retrieval Requests, or
similar issues involving Card Transactions, other than pursuant to a court
or governmental agency request, subpoena, or order. Customer shall use
proper controls for and limit access to, render unreadable prior to
discarding, all records containing Cardholder account numbers and Card
imprints. Customer shall not retain or store Magnetic Stripe Data or Card
Validation Codes after a transaction has been authorized. If Customer stores
any electronically captured signature or biometric authentication data of
Cardholder, Customer may not reproduce such signature or biometric data
except upon JustiFi’s or its licensor’s specific request.
Card Transaction Ownership. Customer acknowledges that it will not
obtain ownership rights in any information relating to and derived from Card
Transactions. Cardholder Data, including account numbers, personal
information, and other Card Transaction information, including any databases
containing such information, may not be sold or disclosed to an Entity as an
asset upon a bankruptcy, insolvency, or failure of Customer’s business. Upon
a bankruptcy, insolvency, or failure of Customer’s business, all Card
Transaction information and Cardholder Data must be returned to Bank or
proof of the destruction of all Card Transaction information and Cardholder
Data acceptable to Bank must be provided to Bank.
Use of Data. Customer acknowledges that breach of the restrictions on
use or disclosure of any of JustiFi’s or its licensors’ confidential
information would result in immediate and irreparable harm to JustiFi and
its licensors, and money damages would be inadequate to compensate for that
harm. JustiFi and its licensors shall be entitled to equitable relief, in
addition to all other available remedies, to redress any breach.
JustiFi and Licensor Use of Data. JustiFi and its licensors may use
Transaction Data that is collected in performing the Services for the
purpose of providing additional products and services.
- Transaction Processing Requirements.
Transaction Receipts. Customer shall not submit any Transaction that
Customer knows or should know to be fraudulent or not authorized by the
Cardholder, or that Customer knows or should know to have a fraudulent
Quasi Cash Transactions. Customer shall not accept Cards for
Quasi-Cash Transactions or submit any Transactions that result in the
disbursement of any time of cash or quasi cash to a Cardholder.
Audits and Inspections. Customer will provide to JustiFi or
Bank or their designated representatives access to all books and records of
Customer requested by JustiFi for the purpose of determining Customer’s
compliance with its respective obligations pursuant to this Addendum.
Customer will provide such access within three (3) Business Days after
Banks’s notice of such request. Additionally, Customer will provide access
and copying to books and records and to premises as may be requested by any
Payment Network or governmental regulator with authority over JustiFi, Bank,
Processor, or Customer. The rights of access to books and records and
inspection of premises are in addition to any other rights to obtain
information, to audit, and to inspect Customer’s books, records, and
premises provided under this Addendum or under Applicable Laws and Operating
Regulation. You agree that JustiFi and Bank may share information obtained
with Processor and JustiFi’s and Bank’s Affiliates, and with other Persons
as required by Applicable Law or Operating Regulations.
Engagement of Suppliers. Customer may engage a PF Supplier
to provide Merchant Point-of-Sale terminal services subject to the terms
stated in the Data Security Requirements and the following:
Responsibility for Third Party Service Providers. Customer’s use
of the services, equipment, software, systems, materials, supplies or
resources of third parties regarding Customer’s Card Transactions
processing, including, without limitation, PF Suppliers and any
third-party lessors or licensors, will not affect your obligations under
this Addendum to Bank, which will apply to the same extent as if you had
not used them. Bank has no liability or responsibility to Customer or
others regarding these third parties, even if Bank referred them to
Customer. These third parties are Customer’s agents, and Customer is
solely responsible for: (i) determining whether they can meet your needs
and standards, (ii) their actions, inactions and compliance with the
terms of this Addendum, the Operating Regulations and Applicable Law,
and (iii) any and all fees, costs, expenses and other obligations owed
to them by Customer or owed by them to Bank, Processor or Payment
Networks. Bank reserves the right to disapprove any proposed third-party
service providers. Any third-party service providers contracted by
Customer must be registered with Payment Networks if required by Payment
Network Rules. Customer must provide Bank with all information regarding
Customer’s PF Suppliers and Customer consents and represents and
warrants that Customer’s third party service providers consent, to our
providing any such information to Payment Networks as necessary to
register Customer’s service provider or otherwise as a Payment Network
may request. Customer may not use the services of a service provider
until approved by Bank and registered with all applicable Payment
Third-Party Terminal Providers. Customer will immediately notify
Bank if Customer decides to use electronic authorization or data capture
terminals provided by any entity other than Processor or Bank’s
authorized designee (“Third-Party Terminals”) to
process transactions, including leasing a terminal from a third party.
If Customer elects to use Third-Party Terminals, (i) the third party
providing the terminals will be Customer’s agent in the delivery of Card
Transactions to Bank; and (ii) Customer assumes full responsibility and
liability for any failure of that third party to comply with the
requirements of Bank, Processor, the operating Regulations, Applicable
Law or this Addendum. Bank will not be responsible for any losses or
additional fees incurred by Customer as a result of any error by a
third-party agent or third-party service provider or a malfunction in a
Third-Party Terminal. Customer is responsible to ensure that Third-Party
Terminals meet Processor’s certification standards and are PA-DSS
Internet Connectivity Responsibility. The use of agents or
third-party service providers or an agent’s or third party service
provider’s software application that has connectivity to the Internet
poses an increased risk, and Customer assumes all liability for such
increased risks. If Customer utilizes software or hardware with a
connection to the Internet and such hardware or software interacts in
any capacity with the provision of Services provided pursuant to this
Addendum, Customer is solely liable without limitation for any and all
consequences of such interaction.
Customer Data Security Requirements. THE FOLLOWING IS
IMPORTANT INFORMATION REGARDING THE PROTECTION OF CARDHOLDER DATA. PLEASE
REVIEW CAREFULLY AS FAILURE TO COMPLY CAN RESULT IN SUBSTANTIAL FINES,
ASSESSMENTS AND LIABILITIES FOR UNAUTHORIZED DISCLOSURE OF CARDHOLDER DATA
AND TERMINATION OF THIS ADDENDUM.
Applicability. Data security requirements apply to all of
Customer’s systems and locations where Cardholder Data is collected,
processed, transmitted or stored and includes all such functions
performed by Customer and JustiFi and its licensors or any other vendor,
supplier, agent or representative performing such functions or having
access to Cardholder Data (other than Bank), including without
limitation all Merchant Equipment, including: (i) all external
connections into Customer’s network (i.e., employee remote access,
third-party access for processing, and maintenance); (ii) all
connections to and from the authorization and settlement environment
(i.e., connections for employee access or for devices such as firewalls,
and routers); and (iii) any data repository outside of the authorization
and settlement environment. Customer shall not and shall not permit any
PF Supplier provider to store Cardholder or Transaction Data outside the
U.S. or allow access to such data to any Entity located outside the
U.S., including employees, agents and affiliates of Customer, without
the prior written consent of Bank.
Security Measures. At all times during the Term of this Agreement
and thereafter for as long as Customer retains any Cardholder Data,
Customer must: (i) continuously take all reasonable precautionary
measures to safeguard Cardholder Data from unauthorized access,
disclosure and use; (ii) comply with all data security requirements as
prescribed by Operating Regulations and by Bank from time to time; and
(iii) without limitation of the foregoing, at least comply with the
following data security requirements:
Install and maintain a secure network firewall to protect data
across public networks;
Comply with all requirements of the PCI-DSS applicable to Customer,
including protecting stored data, data captured by, held in and
transmitted from Card terminals and data sent across networks by
using methods indicated in the PCI-DSS. See below, for full data
security requirements and links to PCI and Payment Network data
Use and regularly update anti-virus software and keep security patches
Restrict access to data to only individuals who have a “need to know” such
information to perform duties;
Assign a unique ID to each individual with computer access to data and track
access to data by unique ID, and promptly disable access to data for
individuals who no longer should have access;
Not use vendor-supplied defaults for system passwords and other security
- Regularly test security systems and processes;
Maintain a policy that addresses information security for employees and
- Restrict physical access to Cardholder information;
Not send Card account numbers to Cardholders for Internet and/or ecommerce
transactions. Communications with Cardholders that include Card numbers may
only show the last four digits of the Card number;
Not store or retain Card Validation Codes (three-digit values printed in the
signature panel of most Cards, and a four-digit code printed on the front of
an American Express Card) after final transaction authorization;
Not store or retain Magnetic Stripe Data, PIN data, Chip data or AVS data;
only Cardholder account number, Cardholder name and Cardholder expiration
data may be retained subsequent to transaction authorization;
Destroy or purge all Media containing obsolete Cardholder Transaction Data;
Keep all systems and Media containing Card account, Cardholder or
transaction information (whether physical or electronic) in a secure manner
so as to prevent access by, or disclosure to any unauthorized party;
Use only services and Merchant Equipment that have been certified as PCI-DSS
or PA-DSS compliant (as applicable) by the Payment Networks.
Payment Network Security Rules. In addition to compliant with PCI-DSS
requirements, Customer must comply with data security requirements stated in
the Payment Network Rules for each Card that Customer has elected to accept
under this Addendum, or applicable under the Payment Network Rules that
Customer accepts inadvertently or intentionally without having made such
election. Customer must comply with changes and additions to the PCI-DSS and
Operating Regulations as well as notifications from Bank regarding new data
security requirements. The “Account Information Security Program (AISP)” is Visa’s data
security program, the “Site Data Protection (SDP)”
program is Mastercard’s data security program, “Discover Network Information Security and
Compliance (DISC)” is Discover Network’s data security program, and the “Data
Security Operating Policy (DSOP)” is American Express’ data security program, each of
which includes the
PCI-DSS and validation requirements and additional network specific
requirements. Each Payment Network security program imposes associated fines
and assessments for non-compliance, for which Customer will be responsible.
Detailed information about security standards can be found at the following
websites, or other websites designated by the Payment Networks from time to
Discover Networks DISC:
American Express DSOP:
Payment Networks have the right to enforce any provision of their respective
Payment Network Rules and to prohibit Customer and/or JustiFi from engaging
in any conduct that the Payment Network deems could injure or could create a
risk of injury to the Payment Network including injury to reputation, or
that could adversely affect the integrity of the Payment Network, the
Payment Network’s confidential information as defined in the Payment Network
Rules, or both; and Customer will not take any action that could interfere
with or prevent the exercise of this right by the Payment Networks. Each
Payment Network may use the information obtained in the Customer Application
to screen, communicate with, and/or monitor Customer in connection with Card
marketing and administrative purposes.
Non-Compliance. JustiFi, the Payment Networks and/or Bank may impose fines or penalties or
restrict Customer from accepting Cards if it is determined that Customer is not compliant with the
applicable data security requirements. JustiFi or Bank may in its respective sole discretion, suspend or
terminate the Payment Processing Services under this Addendum for any actual or suspected Data
Compromise Event. Customer agrees that it will not request any Authorizations, or submit any Sales
Drafts or Credit Vouchers until it has read and understood the PCI-DSS, AISP, SDP, DISC, and DSOP, for
which Customer acknowledges have provided to it sufficient information to obtain, and Customer will be
deemed to have done so upon JustiFi’s receipt of Customer’s request or Submission of any Authorizations,
Sales Drafts, or Credit Vouchers.
Audits and Reports. Customer must comply with all audit and reporting
requirements of PCI-DSS that are applicable to it, including audits by
Qualified Security Assessors or completion of Self-Assessment Questionnaires
and provide its validation of compliance to JustiFi. Furthermore, JustiFi
retains the right to conduct an audit at Customer’s expense, performed by
Bank or Entity designated by Bank to verify Customer’s compliance, or that
of Customer’s agents or third-party service providers, with security
procedures and the Operating Regulations. Customer shall provide for such
audits by JustiFi or its designated auditors contractually with all of
Customer’s third-party service providers that have access to Cardholder
Notice of Data Compromise. In the event of any known or suspected
Data Compromise Event, including any Data Compromise Event incurred by
Customer’s PF Suppliers, Customer must contact Bank and JustiFi immediately,
and in no event more than twenty-four (24) hours after becoming aware of
such activity or suspected activity.
Investigation. Customer must, at its own expense: (i) perform or
cause to be performed an independent investigation, including a forensics
analysis performed by a certified forensic vendor acceptable to Bank and the
Payment Networks in accordance with Payment Network standards, of any Data
Compromise Event; (ii) provide a copy of the certified forensic vendor’s
final report regarding the incident to Bank and the Payment Networks; (iii)
perform or cause to be performed any remedial actions recommended by any
such investigation; and (iv) cooperate with Bank in the investigation and
resolution of any Data Compromise Event. Notwithstanding the foregoing, if
required by a Payment Network, JustiFi or Bank will engage a forensic vendor
approved by a Payment Network at Customer’s expense. Customer must, and
Customer must cause its PF Suppliers to, cooperate with the forensic vendor
so that it may immediately conduct an examination of Customer’s and its PF
suppliers’ premises, equipment, systems and software, procedures and records
reasonably related to a Data Compromise Event and issue a written report to
JustiFi, Bank and Payment Networks of its findings.
Discover Card Notice Requirements. For any Data Compromise Event
involving Discover Network transactions and/or track data, Customer must
provide JustiFi and/or Discover Network with the following information: (i)
the date of breach; (ii) details concerning the data compromised (e.g.,
account numbers and expiration dates, Cardholder names and addresses, etc.);
(iii) the method of such breach; (iv) Customer’s security personnel
contacts; (v) the name of any person (including law enforcement) assisting
Customer with its investigation of such breach; and (vi) any other
information which JustiFi reasonably requests from Customer concerning such
Data Compromise Event, including forensics reports. Customer shall provide
such information as soon as practicable, and the items listed in (i)–(vi)
shall be provided to JustiFi and Bank in any event within forty-eight (48)
hours of Customer’s initial notification to JustiFi and Bank of the Data
PF Suppliers’ Compliance. Customer must ensure that the data security
standards set forth in this Section 13 also apply to Customer’s PF
Suppliers. Before Customer engages any third-party service providers,
Customer must provide JustiFi and Bank in writing: (i) the third-party
service provider’s legal name, (ii) contact information, and (iii) intended
function. Customer must also provide to JustiFi and Bank ten (10) days’
prior written notice prior to making any changes with respect to any
third-party service providers, including changing an existing third-party
service provider’s function. Customer acknowledges and agrees that it will
not use, or provide Cardholder Data access to, any third-party service
providers until Customer receives JustiFi’s approval and, if required,
confirmation of JustiFi’s registration of that PF Supplier with applicable
Payment Networks. Customer must ensure that it and its PF Supplier: (x)
comply with the registration process which can involve site inspections,
background investigations, provision of financial statements and any other
information required by a Payment Network; (y) comply with the periodic and
other reporting required by a Payment Network; and (z) comply with all
applicable Operating Regulations and Applicable Law, including without
limitation, those requiring security of Cardholder Data. Customer may allow
PF Suppliers access to Cardholder Data only for purposes authorized under
and in conformance with the Operating Regulations and Applicable Law.
Customer is responsible for all JustiFi’s costs and expenses associated with
JustiFi’s review, approval, certification (and recertification as may be
required by Bank or the Operating Regulations) and registration of any
third-party service providers. Bank’s Processor as of the Effective Date is
compliant with PCI-DSS and will provide Customer a current SSAE 16 report
indicating such compliant status upon Customer’s request.
Validation Fee. If JustiFi has not received receipt of Customer’s
validation of compliance with Customer’s PCI-DSS standards within the first
ninety (90) days of the date of this Addendum, Customer will be charged a
monthly non-receipt of PCI validation fee as set forth in the Customer
Application or as otherwise communicated to Customer, for the period
beginning upon expiration of the 90-day period, until such time as Customer
is compliant or this Agreement is terminated, whichever comes first. This
monthly non-receipt of PCI validation fee is in addition to any and all
other fees for which Customer is responsible related to Customer’s failure
to comply with requirements hereunder, including without limitation thereof
termination of this Agreement by JustiFi or Bank.
Data Compromise Losses. If Customer or any of Customer’s PF Suppliers
(or other Entity used by you) is determined by any Payment Network,
regardless of any forensic analysis or report, to be the likely source of
any Data Compromise Event and regardless of Customer’s belief that it has
complied with the Operating Regulations or any other security precautions
and are not responsible for the Data Compromise Event, Customer must
promptly pay any Data Compromise Losses arising from Customer’s operations
or from operations of Customer’s PF Suppliers, without regard to any
limitations of liability stated in the Agreement.
Telecom Data. Customer agrees that JustiFi may obtain relevant
information from any telecommunications provider utilized by Customer as
necessary to investigate any allegation of fraud or other actual or alleged
wrongful act by Customer in connection with the Merchant Services.
- Security Interest and Set Off Rights.
Security Interest. To secure Customer’s obligations to Bank and
Bank’s respective Affiliates under this Addendum and any other agreement for
the provision of equipment, products, or services (including any obligations
for which payments on account of such obligations are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy act, state or federal law, common law or equitable cause),
Customer grants to Bank a first priority lien and security interest in and
to: (i) the Reserve Accounts; (ii) Customer’s Customer Settlement Account;
(iii) any interest Customer may have in the funds held by Bank in its
Custodial Account; (iv) any of Customer’s funds pertaining to the Card
Transactions contemplated by this Addendum now or hereafter in JustiFi’s
possession, whether now or hereafter due or to become due to Customer from
Bank; and (v) any other deposit account of Customer with a financial
institution, whether now existing or established in the future. If Bank
permits Customer to hold its Customer Settlement Account in another
financial institution, Customer must provide a Deposit Account Control
Agreement signed by such financial institution in a form acceptable to Bank
before Bank or JustiFi will transfer any Settlement Funds to your Customer
Settlement Account. Such account must be held at a financial institution
domiciled in the United States. Any such funds, money, or amounts now or
hereafter in Bank’s possession may be commingled with other funds of Bank’s,
or with any other funds of other customers or merchants of Bank’s. In
addition to any rights now or hereafter granted under Applicable Law and not
by way of limitation of any such rights, Bank is hereby authorized by
Customer at any time and from time to time, without notice or demand to
Customer or to any other Entity (any such notice and demand being hereby
expressly waived), to set off, recoup, and to appropriate and to apply any
and all such funds against and on account of Customer’s obligations to Bank
and its respective Affiliates under this Agreement and any other agreement
with Bank or JustiFi’s respective Affiliates for any related equipment or
related services (including any check services), whether such obligations
are liquidated, unliquidated, fixed, contingent, matured or unmatured.
Customer agrees to duly execute and deliver to Bank such instruments and
documents as Bank may reasonably request to perfect and confirm the lien,
security interest, right of set off, recoupment and subordination set forth
in this Agreement. If in replacement of or in addition to the first priority
lien and security interest in the Reserve Account, Customer grants to Bank a
first priority lien and security interest in and to one or more certificates
of deposit, the certificates of deposit shall be uncertificated and shall be
subject to a pledge agreement by, between and among Customer, Bank and the
financial institution that has established and issued the certificate of
deposit (if other than Bank). The form of the pledge agreement and
the financial institution that will establish and issue the certificate of
deposit shall be satisfactory and acceptable to Bank.
Right of Set Off. For clarity and notwithstanding anything in this
Agreement to the contrary, if Bank deducts, holds back, suspends, recoups,
offsets or sets off any settlement monies or amounts otherwise due Customer
pursuant to the terms of this Agreement (collectively “Set Off Funds”),
Customer acknowledges that such Set Off Funds may be applied to
Customer’s obligations to Bank or held in a commingled Reserve Account(s) of
Bank as determined by Bank in its sole discretion.
Cooperation with Enforcement Agencies. Customer must fully
cooperate with law enforcement, the government, the Payment Networks, or
other regulatory bodies in all reasonable investigations.
Chargebacks. Customer is responsible for all Chargebacks. Chargebacks must not be for
excessive dollar amounts and transaction percentages. JustiFi may
immediately terminate this Agreement if Customer has a Chargeback rate
greater than 0.50% and 75 Chargebacks for three (3) consecutive months.
Indemnity. Customer is responsible for its own actions or inactions, those of its
officers, directors, shareholders, employees, and agents, including any
third-party service providers. Customer will defend, indemnify, and hold
JustiFi and Bank harmless from any loss, claim, liability, or expense,
including, without limitation, attorneys’ fees and costs, arising out of or
in connection with Customer’s failure to observe or comply with the
provisions of this Addendum, including any actions or inactions, those of
its officers, directors, shareholders, employees, and agents, including any
third-party service providers. This indemnity shall survive the expiration
or termination of the term of the Agreement.
- Ongoing Review.
Customer will make available for review by JustiFi and Bank, upon request by JustiFi or Bank, the
following: (a) Significant Owners, (b) compliance with Applicable Laws (e.g., UDAAP, UDAP), and other
consumer laws, if applicable), (c) physical site survey, (d) business documentation verification, (e)
financial information, (f) business credit report, (g) tax returns, and (h) bank statements. Further,
Customer agrees that JustiFi may conduct a physical site visit of Customer’s business location(s).
JustiFi and Bank may check Customer against any watch list promulgated
by the U.S. Government, including OFAC’s Specially Designated Nationals
and Blocked Persons List and the U.S. Department of State’s Terrorist
Exclusion List (TEL), and will take any necessary action to comply with
Applicable Laws, including but not limited to providing required
notifications, blocking Transactions or freezing funds, and alerting
Bank of any confirmed positive match.
- Post Termination Rights and Obligations.
Bank’s Remedies. If any Default Event occurs, regardless of whether
such Default Event has been cured, Bank and JustiFi may, in their respective
sole discretion, exercise all of the rights and remedies under Applicable
Law, and this Agreement.
Bankruptcy. If you file for protection under the U.S. Bankruptcy Code
or any other laws relating to bankruptcy, insolvency, assignment for the
benefit of creditors or similar laws, and you continue to use our Services,
it is your responsibility to open new accounts to distinguish pre and post
filing obligations. You acknowledge that as long as you utilize the accounts
you established prior to such filing, we will not be able to systematically
segregate your post-filing transactions or prevent set-off of the
pre-existing obligations. In that event, you will be responsible for
submitting an accounting supporting any adjustments that you may claim.
Merchant Responsibilities. After termination of the Payment
Processing Services and this Addendum for any reason whatsoever, you shall
continue to bear total responsibility for all Chargebacks, fees, Payment
Network fines or assessments imposed on Bank as a result of your acts or
omissions, Credits and adjustments resulting from Card Transactions
processed pursuant to this Addendum, Data Compromise Losses and all other
amounts then due or which thereafter may become due with respect to this
MATCH. Certain Payment Networks maintain merchant lists, such as the
Member Alert to Control High-risk Merchants (“MATCH”),
identifying merchants who have had their merchant agreements or Card
acceptance rights terminated for cause. If this Addendum is terminated for
cause, you acknowledge that we may be required to report your business name
and the names and other information regarding its principals to the Payment
Networks for inclusion on such list(s). You expressly agree and consent to
such reporting if you are terminated as a result of the occurrence of a
Default Event or for any reason specified as cause by Visa, Mastercard,
Discover Network or American Express. Furthermore, you agree to waive and
hold Bank harmless from and against any and all claims which you may have as
a result of such reporting.
Third-Party Beneficiary. Customer is not a third-party beneficiary to
JustiFi’s agreement with Bank or Processor and Customer may not bring any
claims related thereto against Bank or Processor.
Automatic Termination. JustiFi will automatically and immediately
terminate this Addendum if any Payment Network de-registers JustiFi, if Bank
ceases to be a member of any of the Payment Networks for any reason, if Bank
no longer has a license to use a Payment Network’s marks, or if Bank
otherwise requires JustiFi to terminate this Addendum.
Annual Volume over $1,000,000. In the event Customer’s process annual
volume is over one million dollars ($1,000,000) in Visa Transactions or one
million dollars ($1,000,000) in Mastercard Transactions, Bank and Processor
will automatically be added as parties to this Addendum.
Assignment of Payments Due. Customer acknowledges
and agrees it will not assign to any third party any payments due to it
under this Addendum, and all indebtedness arising from Transactions will be
for bona fide sales of goods and services (or both) as its Establishments
and free of liens, claims, and encumbrances other than ordinary sales taxes;
provided, however, that Customer may sell and assign future American Express
Transaction receivables to JustiFi, its affiliated entities and/or any other
cash advance funding source that partners with JustiFi or its affiliated
entities without consent of American Express.
Excessive Activity. If Customer experiences Excessive Activity in
relation to Chargebacks and Retrieval Requests, in addition to Bank’s other
remedies under this Agreement, Bank or PF may do any one or more of the
following: (i) review Customer’s internal procedures relating to acceptance
of Cards and notify Customer of revised procedures that it should adopt that
might reduce future disputes; (ii) notify Customer of a new rate that will
be charged to process Customer’s disputes; (iii) require Customer to replace
any magnetic-stripe-only point of sale terminal or electronic cash register
with an EMV chip-capable terminal, if required under the Payment Network
Rules; (iv) establish a Reserve Account or increase the amount of reserves
required; or (v) terminate the Customer Agreement. Customer understands that
having Excessive Activity may result in assessments, fines, fees, and
penalties by the Payment Networks. Customer agrees to reimburse Bank
immediately for any such assessments, fines, fees, and penalties imposed on
Bank and any related loss, cost, or expense incurred by Bank.
Customer Authentication Credentials. You are responsible for ensuring
your account information is kept confidential. When a change to your
Customer account is required, you will be required to present authentication
prior to our acceptance of a requested change. Customer shall be fully
liable for any changes to its account after proper authentication is
presented. Bank may request from Customer additional information to further
verify Customer’s identity and may delay a change pending completion of such
End user Complaints. Customer agrees to promptly respond to any
complaints from end users communicated to Customer, and to communicate such
complaints and the information surrounding such complaints, to JustiFi.
Use of Data. Customer shall not sell (as that term is defined under
Applicable Law) or disclose, use, or retain for any commercial purpose not
expressly set forth in this Agreement or outside the business relationship
between the parties, any Cardholder Data. Customer acknowledges that breach
of the restrictions on use or disclosure of any confidential information
would result in immediate and irreparable harm to Bank, and money damages
would be inadequate to compensate for that harm. Bank and PF Suppliers shall
be entitled to equitable relief, in addition to all other available
remedies, to redress any breach.
Bank Use of Data. Bank and JustiFi may use Transaction Data that Bank
and/or JustiFi collects in performing Services for you for the purpose of
providing additional products and services to you, other merchants, or third
parties. This includes collecting, using, and de-identifying Cardholder
information, dates, amounts, and other Transaction Data to provide you with
analytic products and services and using Transaction Data anonymized and
aggregated with other merchants’ transaction data for internal purposes and
to provide you, other merchants, and third parties with analytic products
Definitions. As used in this Addendum, the following terms
are defined as follows:
“3-D Secure” means a Visa-approved method for
authentication of Electronic Commerce Transactions.
“Accepted Terms Sheet” means the Payment Facilitator Terms
Sheet attached to and incorporated by reference to the Payment Facilitator
Application submitted by JustiFi and accepted by Bank, as modified from time
to time in accordance with this Agreement.
“Authentication Request” means a request for Cardholder
authentication from a Customer utilizing 3-D Secure to a Card Issuer.
“Account Information Security Program” or
“AISP” means Visa’s data security program as set forth at
- “ACH” means Automated Clearing House.
“Affiliate” means another Entity that, directly or
indirectly, (i) owns or controls such Entity or (ii) is under common
ownership or Control with such Entity.
“Applicable Law” means all applicable federal, state and
local laws, statutes, ordinances and regulations and procedures, and all
applicable orders, judgments, decisions, guidance, recommendations, rules,
policies or guidelines adopted or issued by any regulatory authority or any
competent court, including but not limited to those of the Federal Trade
Commission, the Consumer Financial Protection Bureau, and the Board of
Governors of the Federal Reserve System, as they may be amended from time to
“Application” means the Payment Facilitator Application
submitted by JustiFi and accepted by Bank.
“Authorization” means approval by, or on behalf of, the
Issuer to validate a transaction. An Authorization indicates only the
availability of the Cardholder’s Credit Limit or funds at the time the
Authorization is requested.
- “AVS” means Address Verification Service.
“Bank” means Silicon Valley Bank, a California banking
“Bankruptcy Code” means Title 11 of the United States Code,
as amended from time to time.
“Batch” means a single Submission to Bank of a group of
transactions (sales and Credits) for settlement. A Batch usually represents
a day’s worth of transactions.
“Beneficial Owner” means a person who has 25% or greater
ownership of a legal entity.
“Blocked Person” means (i) an individual, group, or entity
owned or controlled by, or acting on behalf of, a sanctioned country, or
(ii) an individual, group, or entity, such as terrorist or narcotics
trafficker, designated under programs that are not country-specific whose
assets are blocked and with whom United States persons are generally
prohibited from doing business.
“BINs” means Bank Identification Numbers allocated for use
by Payment Networks to route transactions.
“Business Day” means any day other than a Saturday, Sunday,
or legal holiday on which the Federal Reserve Bank of San Francisco is open
to the public for carrying on substantially all of its banking functions.
Any other reference to “days” shall mean calendar days.
“Card” means a payment device issued to a Cardholder,
including a plastic card or electronic representation thereof, bearing a
Mark of a Payment Network, which enables the Cardholder to make payments for
goods or services from Entities that accept such Cards, initiate transfers
of funds or withdraw cash; for purposes of this Agreement, Cards are limited
to Cards bearing the Marks of a Payment Network that is supported by Bank,
made available to Customer by Bank and elected for acceptance by Customer. A
Card may be a Credit Card or Debit Card, including prepaid cards.
“Cardholder” means the Entity to whom a Card has been
issued and any authorized user of such Card, including the Entity that has
entered into an agreement establishing a Card account with an Issuer.
“Cardholder Data” means Transaction Data, Card account
number and other Card information, deposit account information, information
concerning a natural person which because of name, number, personal mark, or
other identifier, can be used to identify that natural person in combination
with any one or more of the following data: (i) social security number; (ii)
driver’s license number or non-driver identification card number; (iii)
mother’s maiden name, financial services account number or code, savings
account number or code, checking account number or code, debit card number
or code, automated teller machine number or code, electronic serial number
or personal identification number (PIN); or (iv) any information subject to
Gramm-Leach-Bliley Act, Fair Credit Reporting Act, and Fair and Accurate
Credit Transactions Act and all Applicable Laws affecting the subject matter
and their respective regulations or guidelines.
“Card Not Present” or “CNP Sale/Transaction” means a
transaction that occurs when the Card is not present at the
point-of-sale, including Internet, mail-order, and telephone-order Card
“Card Transaction” means the acceptance of a Card or
information embossed or recorded on the Magnetic Stripe or Chip on the Card
for payment for goods sold and/or leased or services provided to Cardholders
by Customer and receipt of payment from Bank, whether the Transaction is
approved, declined, or processed as a forced sale. The term
“Transaction” also includes credits, errors, returns and
“Card Validation Code” means a three-digit value printed in
the signature panel of most Cards and a four-digit value printed on the
front of an American Express Card. Visa’s Card Validation Code is known as
CVV2; Mastercard’s Card Validation Code is known as CVC2; the Card
Validation Codes for Discover Network and American Express are known as Card
Identification Numbers (CID).
“Change of Control” means when Control of an Entity is
transferred by any means to another Entity.
“Charge” or “Charges” means the total
price, including all applicable taxes and gratuities, for the purchase of
goods or services at a merchant for which a Cardholder has signed a Sales
Draft or otherwise indicated intent to pay with a Card.
“Chargeback” means a Card Transaction (or disputed portion)
that is returned to Bank by the Issuer pursuant to Payment Network Rules.
“Chip” means an integrated microchip embedded on a Card
containing cardholder and account information.
“Clearing Record” means a record relating to a Card
Transaction in the format necessary for Submission to a Payment Network for
“Client Accounts” means all Custodial Accounts, JustiFi
Accounts, Reserve Accounts and Customer Settlement Accounts maintained in
connection with this Agreement.
“Communications” means payment orders (as defined by the
California Uniform Commercial Code), instructions, requests, automated
clearing house entries, and other communications that request a Service or
“Confidential Information” means, notwithstanding anything
to the contrary in this Addendum, each Party may have access to or receive
disclosure of information relating to the other Party’s business,
technology, marketing objectives and plans, or pricing and any other
information, in any form, furnished or made available directly or indirectly
by one Party to the other that is marked confidential, restricted or with a
similar designation, or is otherwise reasonably understood to be considered
confidential. Confidential Information does not include information that:
(i) is or subsequently becomes publicly available (through no fault of the
recipient); (ii) the recipient lawfully possesses before its disclosure;
(iii) is independently developed without reliance on or use of the
discloser’s Confidential Information; or (iv) is received from a third party
that is not obligated to keep it confidential.
“Control” means, with respect to an Entity, to hold
directly, indirectly or beneficially the majority voting power in the Entity
or the legal power or authority, by contract or otherwise, to direct the
affairs or disposition of the Entity or its assets; with respect to an
asset, the right to direct the use and disposition of such asset.
“Controlling Person” means an individual with significant
responsibility to control, manage, or direct a legal entity customer. For
example, an executive officer or senior manager such as, a CEO, CFO, COO,
General Partner, Managing Member, President, Vice President, or Treasurer or
any individual who performs a similar function. This is a person with
significant managerial control.
“Credit” means a refund or price adjustment given for a
previous purchase transaction.
“Credit Card” means a Card enabling the Cardholder to buy
goods or services on credit pursuant to the Cardholder’s account agreement
with the Card Issuer.
“Credit Limit” means the credit line set by the Issuer for
the Cardholder’s Credit Card account.
“Credit Voucher” means a document evidencing the return of
merchandise by a Cardholder to a Customer, or other refund or price
adjustment made by the Customer to the Cardholder, whether electronic, paper
or other form, all of which must conform to Payment Network Rules and
“Custodial Account” means an account opened by Bank
designated “for the benefit” of Customer to evidence a custodial
relationship, for use as the clearing account.
“Data Compromise Event” means any incident that exposes or
reasonably should be suspected of having exposed Cardholder Data in an
Entity’s possession or under its control, including Cardholder Data in the
possession or under the control of an Entity’s third party service
providers, to unauthorized access, use or misappropriation.
“Data Compromise Losses” means all expenses, claims,
assessments, fines, losses, costs, assessments and penalties and Issuer
reimbursements imposed by the Payment Networks against Bank related to or
arising from a Data Compromise Event and all expenses and claims made by
Issuers or third parties against Bank arising from a Data Compromise Event
apart from any claim procedures administered by the Payment Networks.
“Data Security Operating Policy (DSOP)” means American
Express’ data security program as further described herein.
“Debit Card” means a Card that accesses the Cardholder’s
deposit or savings account or is a Prepaid Card. A Debit Card may be either
a PIN Debit Card or a Non-PIN Debit Card.
“Default Event” means a material breach of this Addendum by
Customer; fraud, misrepresentation, or intentional misconduct related to
Customer’s performance under this Addendum; excessive Chargebacks,
irregular, or fraudulent payment transactions (based on Payment Network
thresholds), or Customer engages in business practices creating excessive
risk for Cardholders or Bank; a material adverse change to Customer’s
financial condition (including the failure to pay any of its debts); failure
by Customer to provide notice of a material change in the nature of its
business; failure by Customer to disclose the third parties or systems it
uses in connection with the transaction information or payment data
processed under this Addendum; failure by Customer to fund the Reserve
Account when required under this Addendum; Customer experiences a data
compromise event or fails to comply with PCI-DSS or a material Payment
Network requirements; Customer materially changes its operations, products,
services, or procedures for Card acceptance; Customer fails to satisfy a
review or audit conducted under this Addendum; Customer sells substantially
all of its assets, undergoes a Change of Control, merges, or effects
anmountent without obtaining the prior consent of Bank; or a Payment Network
or a governmental authority instructs Bank to limit, suspend its performance
under, or terminate this Addendum.
“Discover Network Information Security and Compliance (DISC)” means Discover
Network’s data security program.
“Electronic Commerce Transaction” means a Card Transaction
conducted over the Internet or other electronic network.
“EMV” means the global standard for chip-based payments.
“Entity” means an individual, corporation, partnership,
sole proprietorship, trust, association, or any other legally recognized
entity or organization.
“Excessive Activity” means the occurrence, during any
monthly period, of Chargebacks or Retrieval Requests in excess of 0.50% of
the number of Chargebacks compared to the number of Transactions.
“Factoring” means the Submission of authorization requests
and/or Sales Drafts by a merchant for Card sales or cash advances transacted
by another business, a practice also referred to as “laundering” sales
drafts. Factoring is prohibited.
“Fees” means the various fees and charges listed on the
Accepted Term Sheet.
“Force Majeure” has the meaning given in Section 31€ of the
PF General Terms.
“Gross” when referred to in connection with transaction
amounts or fees, refers to the total amount of Card sales, without set-off
for any refunds or Credits.
“High CV Payment Aggregator” means a payment aggregator
with either (i) greater than USD $250,000,000 in American Express
Transactions from its Merchants in a rolling twelve (12) month period or
(ii) greater than USD $25,000,000 in American Express transactions from its
Merchants in any three (3) consecutive months, wherein payment aggregator
refers to JustiFi and Merchants refers to Customer under this Agreement.
“High CV Customer” means a Merchant with either (i) greater
than USD $1,000,000 in American Express Transactions in a rolling twelve
(12) month period or (ii) greater than USD $100,000 in American Express
transactions in any three (3) consecutive months.
“ICA” means a numerical code assigned by Payment Networks
to identify Payment Network participants for routing of transactions and
allocation of responsibility for Transactions.
“Issuer” means the financial institution that has issued a
Card to a Cardholder.
“Magnetic Stripe” means a stripe of magnetic information
affixed to the back of a plastic Card. The Magnetic Stripe contains
essential Cardholder and account information.
“Magnetic Stripe Data” means information required or
permitted by Payment Network Rules to be encoded on a Magnetic Stripe or
Chip or replicated in a virtual, electronic or other form of a Card.
“Marks” means names, logos, emblems, brands, service marks,
trademarks, trade names, tag lines or other proprietary designations.
“Media” means the documentation in whatever form, physical
or electronic, of monetary transactions (i.e., Sales Drafts, Credit
Vouchers, computer printouts, etc.).
- “Merchant” see Customer.
“Merchant Account Number” means a number that numerically
identifies each Customer location, outlet, or line of business to the
Processor for accounting and billing purposes.
“Merchant Equipment” means any and all equipment a Customer
uses in connection with Card authorization, clearing, completing, settling,
transmitting or other related processing, including, without limitation, all
telecommunication lines and wireless connections and software, systems,
point-of-sale terminals, card readers, merchandise and card scanners,
printers, PIN pad devices and other hardware, whether owned by JustiFi, the
Customer, PF Suppliers or other Entities.
“Non-Bank Cards” means Cards other than Cards bearing the
Marks of Visa or Mastercard.
“Non-PIN Debit Card” means a Debit Card that does not
require a PIN for Cardholder authentication.
“Non-Qualified Transactions” means any Card Transaction (i)
submitted for processing more than 48 hours past the time the Authorization
occurred; (ii) missing required data; and (iii) designated as such by the
organization designated by Bank to settle Card Transactions with the Payment
“OFAC” means the Office of Foreign Assets Control of the
“Operating Regulations” means all operating regulation,
and/or all other rules, guidelines, policies and procedures of VISA,
Mastercard, Discover, American Express and/or Other Networks, and all other
applicable rules, regulations and requirements of Bank and Processor
applicable to similarly situated Payment Facilitators, Bank, other banks,
institutions, organizations, associations, or networks which govern or
affect any services provided under this Addendum, including, but not limited
to, the Payment Network Rules and those of the National Automated Clearing
House Association (“Nacha”), as any or all of the foregoing may be amended
and in effect from time to time.
“OptBlue® Program®” means a program pursuant to which Bank
and Processor provide Card acceptance services with respect to American
“Other Networks” means Payment Networks other than American
Express, Discover, Mastercard and Visa for which card acceptance Services
are provided by Bank or Processor under this Addendum.
“PA-DSS” means the Payment Application Data Security
Standard as promulgated and revised from time to time by the PCI Security
Standards Council, LLC, available at:
“PF Supplier” means any third party other than Processor
used by JustiFi or a Customer in connection with the Services received
hereunder, including but not limited to JustiFi’s software providers,
equipment providers, and/or third-party processors.
“Payment Network” means any Entity formed to administer and
promote Cards, including without limitation Mastercard Worldwide
(“Mastercard”), Visa, Inc. (“Visa”), DFS Services LLC (“Discover Network”),
American Express PF, Inc. (“American Express”) and any applicable PIN Debit
“Payment Network Marks” means Marks indicating acceptance
of Cards as permitted by Payment Network Rules.
“Payment Network Rules” means the rules, regulations,
releases, interpretations and other requirements (whether contractual or
otherwise) imposed or adopted by any Payment Network and related
authorities, including without limitation, those of the PCI Security
Standards Council, LLC, the National Automated Clearing House Association
and the Quest Operating Rules.
“PCI-DSS” means the Payment Card Industry Data Security
Standards and Best Practices as promulgated and revised from time to time by
the PCI Security Standards Council, LLC, available at:
“PIN” means a Personal Identification Number entered by the
Cardholder to submit a PIN Debit Card transaction.
“PIN Debit Card” means a Debit Card that requires
transactions to be authenticated by the Cardholder’s entry of a PIN.
“Point of Sale (POS) Terminal” means a device placed in a
Merchant location which is connected to the Processor’s system via telephone
lines or Internet connection and is designed to authorize, record and
transmit settlement data by electronic means for all sales transactions with
“Prepaid Card” means a Card that accesses the Cardholder’s
funds in an account held by the Issuer into which funds have previously been
paid, by the Cardholder or by another Entity.
“Principal” means any individual or other Entity owning
directly, indirectly, beneficially or otherwise controlling at least 25% of
the equity or voting power of JustiFi or of a Customer.
“Principal Place of Business” means the fixed location at
which JustiFi’s or a Customer’s (as applicable) executive officers direct,
control, and coordinate the Entity’s activities, regardless of its web site
or server locations.
“Processing” means any operation or set of operations which
is performed on Personal Data or on sets of Personal Data, whether or not by
automated means, such as collection, recording, organization, structuring,
storage, adaptation or alteration, retrieval, consultation, use, disclosure,
transmission, dissemination or otherwise making available, alignment or
combination, restriction, erasure or destruction.
“Processing Fees” means the fees and charges set forth on
the Accepted Terms Sheet, and any separate schedule of fees as may be
amended and supplemented by Bank from time to time.
“Processor” means the Entity (other than the Bank) which
provides certain services under the Agreement as a subcontractor of Bank.
Processor may be changed by Bank.
“Optional Services” means certain Services or products that
JustiFi or a Customer selects that are provided solely by Processor or by a
third-party processor or provider (and not by Bank), as indicated in the
“Prohibited Entity” means an Entity either listed on the
Specially Designated Nationals and Blocked Persons List maintained by OFAC,
or otherwise with whom a Party or is prohibited by laws, regulations or
executive orders administered by OFAC, including Executive Order No. 13224,
from conducting transactions and/or dealings.
“Qualified Security Assessor (QSA)” means a third party
service provider that meets the qualifications established by the Payment
Card Industry Security Council for assessing a PF’s or merchant’s compliance
with PCI-DSS and PA-DSS standards.
“Qualified Transactions” means (i) Card Transactions in
which the Card is swiped or chip is read; (ii) Visa telephone or mail
Transactions with Address Verification and order number entered; or (iii)
Card Transactions that are part of a special registered program approved by
the Payment Networks.
“Quasi-Cash Transaction” means a transaction representing a
sale of items that are directly convertible to cash, including: (i) gaming
chips; (ii) money orders; (iii) deposits; (iv) wire transfers; (v) travelers
checks; (vi) prepaid cards or reloads thereof; (vii) foreign currency; or
digital (crypto) currency.
“Reserve Account” means an account established and funded
at Bank’s request or on your behalf, pursuant to this Addendum.
“Retrieval Request/Transaction Documentation Request” means
a request for documentation related to a Card Transaction such as a copy of
a Sales Draft or other Transaction source documents.
“Sales Draft” means evidence of a purchase, rental or lease
of goods or services by a Cardholder from, and other payments to, Customer
using a Card, including preauthorized orders and recurring transactions
(unless the context requires otherwise); regardless of whether the form of
such evidence is in paper or electronic form or otherwise, all of which must
conform to Payment Network Rules and Applicable Law.
“Schedules” means the attachments, addenda and other
documents, including revisions thereto, which may be incorporated into and
made part of this Addendum concurrently with or after the date of this
“Security Programs” means the data security requirements
stated in the Payment Network Rules, including (1) the “Account Information Security
Program (AISP)” – Visa’s data security program, (2) the “Site Data
Protection (SDP)” – Mastercard’s data security program, (3) “Discover
Network Information Security and Compliance (DISC)” – Discover Network’s data
security program and (4) the “Data Security Operating Policy (DSOP)” -American
Express’ data security program, each of which includes the
PCI-DSS and validation requirements and additional network specific
“Security Procedures” means the credentials, security
codes, keys, personal identification numbers, template numbers, algorithms,
procedures or other programs or key strokes that are adopted for use to
verify the authenticity of communications from JustiFi (to prevent
unauthorized access to the services and related platforms). For example, a
Security Procedure may be the combination of a password with specific user
identification or other credential.
“Self-Assessment Questionnaire (SAQ)” means a form of
questionnaire prescribed by the Payment Card Industry Security Council for
assessing a merchant’s compliance with PCI-DSS and PA-DSS standards to be
completed by a Merchant and certified by a senior officer.
“Services” means the services and products described herein
and selected by JustiFi and a Customer with respect to transactions for the
sale of goods and services involving Cards (“Card Transactions”) in the United
States, including Optional Services.
“Settlement Funds” means the funds relating to Card
Transactions processed by Bank or Processor that are settled to Customer.
“Significant Owner” means a (i) Beneficial Owner and a (ii)
“Site Data Protection (SDP)” means Mastercard’s data
security program as set forth at
“Customer Settlement Account” means a commercial depository
account in a bank acceptable to Bank, established by a Customer such that
Bank may debit and credit amounts for payments to the Customer and from the
Customer to Bank.
“Submission” means the process of sending Batch deposits to
Processor for processing.
“Transaction” has the meaning provided in the definition of
“Transaction Data” means data collected as part of
performing payment processing or other Card Transaction-related Merchant
“Transaction Receipt” means the paper or electronic record
evidencing the purchase of goods or services by a Cardholder using a Card or
“Us,” “We,” and “Our”
means the Bank.
“Valid Card” means a Card that is (i) properly issued under
the authority of a Card Network (not counterfeit); (ii) “current” according
to any beginning and expiration dates on the Card; (iii) signed by the
Cardholder named on the front or other authorized signer, or in the case of
CNP Transactions, in compliance with the applicable Operating Rules; (iv)
not listed at the time of a Transaction in a warning bulletin or notice
issued by a Payment Network; and (v) not visibly altered or mutilated when
physically present at the POS.
Attachment 1 to Payment Processing Services Addendum
ACH Origination Terms
the ACH origination services (“ACH Services”). Capitalized
terms used herein without definition shall have the meanings provided in the
Nacha Rules and the Agreement.
Software Applications. All internet websites or
applications that may be used to send and receive information and
instructions or otherwise access the ACH Services are referred to as the
“Online Banking Channels.” The Online Banking Channels and
the software, specifications, tapes, or other media, programs, procedures,
and equipment (collectively the “Software”) used in connection with the ACH
Services are and will remain the sole property of Bank and Bank’s Third
Party Service Provider and will not be modified or altered in any way or
used for any other purpose. Customer agrees to comply with the terms of any
license made available to Customer through the ACH Services. Customer shall
not (a) sell, assign transfer, license, or publish the Software or make
copies of the Software; (b) disclose, display or otherwise make available
the Software or copies of the Software to third parties without Bank’s
written approval; or (c) reuse, reverse engineer, decompile, disassemble,
modify, translate, create derivative works, reproduce, duplicate, or
distribute the Software or content of the ACH Services, or make any attempt
to discover any source code of any Software from which the ACH Services is
Submitting Entry Data. Customer’s data, records, and
Instructions that are delivered in an ACH file or as part of ACH Entries
(“Entry Data”) must be in the form, have the content, and
be delivered in conforming with Nacha Rules and any Entry Data requirements
specified by JustiFi from time to time. In the event of any conflict between
JustiFi’s Entry Data requirements and the Nacha Rules, JustiFi’s Entry Data
requirements will govern. Customer will deliver Entry Data in compliance
with the Security Procedures. The total dollar amount of Entries transmitted
by Customer will not exceed the Transaction limit(s) established by JustiFi
from time to time.
Agreement to Use Commercially Reasonable Security Procedures.
JustiFi offers Security Procedures that apply to the ACH Services and
Payment Orders, and Customer’s use of the ACH Services constitutes
Customer’s acceptance of those Security Procedures as commercially
reasonable for the type, size, frequency, and volume of Customer’s
Payment Orders and as a means of authenticating a Payment Order
communicated to JustiFi or Bank. Customer acknowledges that the Security
Procedures are used to verify the authenticity of, and not to detect
errors in, any Payment Order. Any Payment Order communicated by Customer
shall be effective as the funds transfer instruction or Payment Order of
Customer, and shall be enforceable against Customer, whether or not
authorized and regardless of the actual identity of the sender thereof,
if such Payment Order is received in accordance with the applicable
Security Procedures, and if such Payment Order is accepted in good
faith. In addition, if any Payment Order was actually communicated or
authorized by Customer or Customer otherwise benefited from such Payment
Order (or resulting Entry), then Customer will be obligated to pay
JustiFi the amount of the related Entry without regard to whether
JustiFi or Bank complied with the Security Procedures. JustiFi and its
licensors may, in their discretion, use additional procedures to verify
the authenticity of any Payment Order. Customer agrees to implement any
other reasonable authentication or Security Procedures established by
Compliance with Security Procedures. If Customer communicates any
Payment Order (including any cancellation or amendment thereof) in a
manner that varies from the Security Procedures, and if such Payment
Order is accepted in good faith, then Customer agrees to be bound by
such Payment Order, whether or not authorized, and Customer will be
deemed to have refused the Security Procedures that JustiFi offers and
recommends as commercially reasonable, and Customer will be obligated to
pay JustiFi the amount of such Entry. However, Bank does have an
obligation to accept any Payment Order that is not communicated in
compliance with the Security Procedures. Neither JustiFi or Bank shall
be responsible for refusal to act upon any Payment Order received which
does not comply with this Attachment, including where JustiFi’s or
Bank’s reasonable efforts to verify the Payment Order in accordance with
the Security Procedures have failed or where such action is delayed
until verification can be obtained.
Processing and Settlement of ACH Entries. Customer will
comply with and be subject to the Nacha Rules with respect to all Entries
whether or not a particular Entry is distributed through the ACH network,
except as otherwise expressly agreed to by JustiFi. Unless the contexts
otherwise requires, the Nacha Rules will apply only to “On-Us Entries,” which
are Entries where the Receiver’s account also resides at the
Originating Depository Financial Institution (“ODFI”). Bank
will act as an ODFI with respect to Entries.
Standard Entry Class Codes. Standard Entry Class Codes are
specified in Appendix Two (ACH Record Format Specifications) of the
Nacha Rules. Customer may not originate Entries using Standard Entry
Class Codes that have not been included in the Enrollment Forms and
approved by JustiFi. For example, Standard Entry Codes PPD, CCD, and CTX
are allowed without the need for Additional Documentation, but TEL, WEB,
or IAT require prior approval by Bank and JustiFi’s agreement to
Additional Documentation. JustiFi may block unapproved use of a Standard
Entry Class Code.
Stale Dated Payments. A stale dated payment will be processed on
the next possible effective date, even if it forces that Entry to be
handled as a same-day item.
File Rejection. An entire ACH file may be rejected if JustiFi or
Bank have any question about its authenticity or any problems processing
the file as submitted (for example, if there are insufficient funds in
an Account to cover processing all Entries in the file).
Customer as Originator.
If Customer is an Originator, Customer assumes the responsibilities
of an Originator under the Rules. If Originator fails to perform its
obligations as an Originator under the Rules, Customer will
indemnify JustiFi from and against any and all any and all
proceedings, claims, demands, causes of action, damages, fines,
expenses (including reasonable attorneys’ fees and other legal
expenses), liabilities, harm, or other losses that result directly
or indirectly from the Originator’s failure to perform its
obligations. Nothing in this subsection limits Customer’s
indemnification or other obligations under this Attachment or the
Customer authorizes JustiFi to originate Entries on behalf of
Customer to Receivers’ accounts.
JustiFi may restrict Entries by impermissible SEC codes or otherwise
restrict Entries as set forth in this Attachment and the Agreement.
Customer agrees that it will not originate Entries that violate the laws of
the United States (including the sanctions laws administered by the Office
of Foreign Assets Control).
Customer authorizes JustiFi and its licensors to audit Customer’s compliance
with this Attachment, the Agreement, and the Rules.
Customer agrees that JustiFi shall be permitted to terminate or suspend this
Attachment and/or the Agreement for breach of the Rules or as required for
JustiFi to comply with the Rules.
Provisional Settlement. Customer agrees that any payment to Customer
for any originated Debit Entry, returned Credit Entry, or credit Reversal is
provisional until Bank has received final settlement for such Entry. Bank
and JustiFi may delay availability of provisional funds at Bank’s and
JustiFi’s discretion. If final settlement is not received, Customer agrees
to pay a refund of the amount credited and JustiFi or Bank may charge the
Custodial Account and/or Reserve Account for the amount due. JustiFi may
refuse to permit the use of any amount credited for a debit Entry or credit
Reversal if it is believed that there may not be sufficient funds in the
Custodial Account or Reserve Account to cover chargeback or return of such
Entry or Reversal.
Rejection of Entries. Any Entry and/or Entry Data may be rejected at
any time, either with or without cause, including nonpayment or if Bank or
JustiFi has attempted but is unable to verify the authenticity of the Entry
Data. Individual entries or complete files may be rejected. JustiFi will
endeavor to notify Customer of rejection no later than the second Business
Day after the Entry would otherwise have been transmitted to the ACH
Operator (or, in the case of an On-Bank Entry, after the Effective Entry
Date). JustiFi will have no liability to Customer by reason of the rejection
of any Entry or file or any failure or delay in providing such notice.
Cancellations, Amendment, or Reversal. Customer has no right to
cancel or amend an Entry after Bank has received it. Bank may use
commercially reasonable efforts to act on a request for cancellation of an
Entry prior to transmitting it to the ACH Operator (or, in the case of an
on-us Entry, prior to crediting a Receiver’s account). JustiFi may deliver
Entry Data for reversing entries (“Reversals”) pursuant to the NACHA Rules,
but Bank will not process any Reversal that does not comply with the Rules
or would violate this Attachment or the Agreement. Neither JustiFi or Bank
will have any liability if any requested cancellations or Reversals are not
Returned Entries. JustiFi will notify Customer of the receipt of a
returned Entry from the ACH Operating no later than one Business Day after
the settlement day of such receipt. Customer has no right to request JustiFi
to dishonor any returned Entry unless Customer gives JustiFi such request in
writing, together with any relevant information required under the Nacha
Rules, and JustiFi receives the written request and information before 10:00
a.m. PST of the fifth Business Day following the settlement date of the
returned Entry Notice by JustiFi of a returned Entry shall be effective when
Notification of Changes. JustiFi will notify Customer of
all notifications of changes (“NOCs”) received by JustiFi
or corrected NOCs created by Bank related to Entries transmitted by Customer
to JustiFi. JustiFi will do so no longer than two (2) Business Days after
JustiFi’s receipt of the NOC. Customer must make the changes specified in
any NOC or corrected NOC: (a) within six (6) Business Days of receipt or
prior to initiating another Entry to the Receiver’s account, whichever is
later; or (b) as otherwise required in the Nacha Rules, if the Nacha Rules
specify a different time for correction.
Payment for Entries. Customer agrees to pay JustiFi, in
immediately available funds, an amount equal to the shortfall in the net
amount of funds available from Card Transactions submitted pursuant to this
Agreement compared to sum of all Credit Entries or debit Reversals related
to Entry Data delivered, at such time as JustiFi may from time to time
Time for Funding. Funds are due no later than the date of
transmittal of the related Entry Data or at such other time as JustiFi
may have established. Funds will be deemed to be provided if the funds
in the Custodial Account and the Reserve Account are sufficient to fund
Entries on the date and at the time when funds are due, provided that
sufficiency of funds available will be determined by JustiFi and Bank in
their sole discretion taking into account contingent needs for funds
posted to such Accounts.
Funding Prior to Payments. JustiFi is not obligated to continue
to process Entries without having first been paid by Customer, and
JustiFi is not required to give notice that JustiFi will no longer
continue such action, regardless of whether JustiFi may have done so
previously. JustiFi may use the Custodial Account and the Reserve
Account for debiting or crediting with respect to all Entries (and any
Checks in lieu of Entries) and related adjustments and charges, but
JustiFi is authorized to charge any Account or withhold funds that would
otherwise be due to JustiFi pursuant to this Agreement if the designated
Account has insufficient funds to cover any amounts due to JustiFi by
Customer in connection with the ACH Services.
Holds. JustiFi and/or Bank may place a hold on funds in a Client
Account without prior notice or demand in an amount reasonably believed
by JustiFi and/or Bank to be needed to cover possible Returns or other
amounts JustiFi and/or Bank reasonably believe are due or with the
passage of time may become due under this Agreement in connection with
the ACH Services. If there are not sufficient available funds in the
Client Account to cover obligations in connection with the ACH Services,
Customer agrees that the Entries may still be processed and debit any
Client Account even if the result is to create an overdraft. Customer
agrees to immediately provide cover for any negative balance or
overdraft in a Client Account. JustiFi and/or Bank may also set off
against any amounts JustiFi or Bank owes to Customer in order to obtain
payment of obligations under this Agreement in connection with the ACH
Reserve Amounts and Holdback. JustiFi and Bank may from time to
time establish minimum amounts to be funded by Customer as reserve
amounts in accordance with the Addendum. JustiFi and/or Bank may
withhold and use any amounts due to Customer to maintain any initial or
later required reserve amounts.
Compliance with Laws. Customer agrees, when requested by
JustiFi, to assist with obtaining from the Receiver an authorization to
initiate Entries to a Receiver’s account that complies with Applicable Law.
The Receiver’s account shall be a commercial account, which is not used for
personal, family, or household purposes.
Compliance with Nacha Rules. Customer will be bound by and
comply with the Nacha Rules as in effect from time to time. At any time upon
request by JustiFi, Customer will provide JustiFi with evidence and
information regarding Receiver authorizations. Customer acknowledges that it
is responsible for providing JustiFi with all information required by the
RDFI, including the reason for payment, if required. Customer further
acknowledges the Receiver account number and RDFI bank identification number
that Customer provides in connection with an Entry must be complete and
accurate, and Customer understands that the Entry and any transfer amount
could be lost if the information is incorrect. Without limitation of the
foregoing, Customer acknowledges that pursuant to Nacha Rules, the RDFI’s
payment of an Entry to the Receiver is provisional until receipt by the RDFI
of final settlement for such Entry; Customer specifically acknowledges that
if such settlement is not received, the RDFI shall be entitled to a refund
from the Receiver mountt credited and Receiver will not be deemed paid by
JustiFi or Bank.
Customer’s Representations, Warranties, and Covenants.
Customer represents, warrants, and agrees that:
Each person shown as the Receiver on an Entry received by JustiFi has
authorized the initiation of such Entry and the crediting or debiting of the
Receiver’s account in the amount and on the Effective Entry Date shown on
Such authorization is operative at the time of transmittal and at the time
of debiting or crediting the Receiver’s account;
Entries transmitted to JustiFi are limited to the types of Entries that are
allowed for Customer under this Agreement;
All Entries transmitted by Customer are in compliance with Applicable Law;
Each Card Transaction is genuine and arises from a bona fide transaction
permissible under the Payment Network Rules by the Cardholder directly with
you, represents a valid obligation for the amount shown on the Sales Draft,
preauthorized order or Credit Voucher, and does not involve the use of a
Card for any other purpose;
Each Card Transaction represents an obligation of the related Cardholder for
the amount of the Card Transaction;
The amount charged for each Card Transaction is not subject to any dispute,
setoff or counterclaim;
Each Card Transaction amount is only for merchandise or services (including
taxes, but without any surcharge) sold, leased or rented by you pursuant to
your business as indicated on the Customer Application and, except for any
delayed delivery or advance deposit Card Transactions expressly authorized
by this Agreement, that merchandise or service was actually delivered to or
performed for the Cardholder entering into that Card Transaction before or
at the time when you submitted that Card Transaction for processing;
With respect to each Card Transaction, you have no knowledge or notice of
any fact, circumstance or defense which would indicate that such Card
Transaction is fraudulent or not authorized by the related Cardholder or
that would otherwise impair the validity or collectability of that
Cardholder’s obligation arising from that Card Transaction or relieve that
Cardholder from liability with respect thereto;
You have not requested or required a Cardholder to waive a right to dispute
Each Card Transaction is made in accordance with this Customer Agreement and
the Operating Regulations;
Each Sales Draft is free of any alteration not authorized by the related
You have completed one Card Transaction per sale; or one Card Transaction
per shipment of goods for which the Cardholder has agreed to partial
You are validly existing, in good standing and free to enter into this
Each statement made on the Customer Application or other information
provided to Bank in support of your Customer Agreement is true, correct and
You are not doing business under a name or style not previously disclosed to
You have not changed the nature of your business, Card acceptance practices,
delivery methods, return policies or types of products or services sold
requiring a different MCC under Payment Network Rules, in a way not
previously disclosed to Bank;
You will use the Services only for your own proper business purposes and
will not resell, directly or indirectly, any part of the Services to any
You have not submitted any Transactions that are illegal transactions or
transactions that you should have known were illegal, for example, those
prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C.
Section 5361 et seq.;
You have not submitted transactions to Bank that are Transactions between
Cardholders and any other Entity, i.e., you have not engaged in Factoring or
“laundering” of transactions;
You have not filed a bankruptcy petition not previously disclosed to Bank;
You own and control the Settlement Account, and no third-party security
interest or lien of any type exists regarding the Settlement Account or any
You will not at any time during the term of this Agreement and thereafter
until all amounts due under this Agreement have been paid in full and funds
are released by Bank, grant or pledge any security interest or lien in the
Reserve Account, Customer Settlement Account or Transaction proceeds to any
Entity without the consent of Bank and PF; and
Customer and each Principal of Customer is not a Prohibited Entity, will not
become a Prohibited Entity at any time during the Term, and is not and will
not become “otherwise associated with” a Prohibited Entity within the
meaning of 31 C.F.R. 594.316. Merchant is not: (i) located in or operating
under a license issued by a jurisdiction whose government has been
identified by the U.S. Department of State as a sponsor of international
terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 2405(j), (ii) located in or
operating under a license issued by a jurisdiction that has been designated
as non-cooperative with international anti-money laundering principles or
procedures by an intergovernmental group or organization of which the U.S.
is a member, or (iii) located in or operating under a license issued by a
jurisdiction that has been designated by the U.S. Secretary of Treasury
pursuant to 31 U.S.C. 5318A as warranting special measures due to money
laundering concerns. “Principal” means any individual or other Entity owning
directly, indirectly, beneficially or otherwise controlling at least 25% of
the equity or voting power of Merchant.
Inconsistency of Name and Account Number or RDFI Description.
Customer acknowledges and agrees that if an Entry describes the Receiver
inconsistently by name and account number, payment of the Entry transmitted
to the RDFI might be made by the RDFI (or by Bank, in the case of an On-Bank
Entry) on the basis of the account number even if it identifies a person
different from the named Receiver. If an Entry describes a financial
institution inconsistently by name and account number, the identification
number may be relied upon as the proper identification of the financial
institution. Customer’s obligation to pay the amount of the Entry is not
excused in such circumstances.
Data Retention. Customer will retain data adequate to
permit remaking of all Entries for ten (10) Business Days following the date
of their transmittal and will provide that data to JustiFi upon request.
Without limiting the generality of the foregoing, Customer specifically
agrees to be bound by and comply with all applicable provisions of the Nacha
Rules regarding the retention of any document or any record, including
without limitation, Customer’s responsibilities to retain all items, source
documents, and records of authorization in accordance with the Nacha Rules.
Customer Notification Obligations. Without limiting any
other provision of this Attachment, Customer will notify JustiFi immediately
if Customer discovers: (a) any error or discrepancy between Customer’s
records and the information JustiFi or Bank provides to Customer about
Customer’s transactions; (b) unauthorized transactions involving any
Customer Account; (c) a breach in the confidentiality of Customer’s access
credentials or other Security Procedures; or (d) material problems related
to the security or integrity of the ACH Services. Customer must send JustiFi
a written notice of any discrepancy or other problem, including a statement
of the relevant facts, within a reasonable time (not to exceed two (2)
Business Days from the date Customer first discovers the problem or receives
information reflecting the problem, whichever occurs first). If Customer
fails to notify JustiFi within two (2) Business Days, Customer agrees that,
in addition to any other limitations on JustiFi’s liability: (y) in the case
of an erroneous funds transfer, Customer will be liable for all losses up to
the amount thereof (as well as any loss of interest) which result from
Customer’s failure to give JustiFi such notice or which might have been
prevented by Customer giving JustiFi such notice; and (z) in the case of an
unauthorized funds transfer, JustiFi will not be liable for any loss of
interest which results from Customer’s failure to give JustiFi such notice
or which might have been prevented by Customer giving JustiFi such notice.
Schedule A to Payment Processing Services Addendum
American Express OptBlue® Program
This Schedule A governs your participation in the OptBlue® Program, in which
you may choose to participate in order to accept American Express® Cards if
you meet certain eligibility requirements. If you elect to enroll in the
American Express OptBlue Program (“OptBlue Program”), the
following additional terms and conditions of this Schedule A shall apply.
The OptBlue Program is provided to you by Processor and not Bank. The OptBlue
Program and other matters contemplated under this Schedule A are subject to
the terms and conditions of the Agreement, as applicable, except to the extent
the terms of this Schedule A directly conflict with another provision of the
Agreement, in which case the terms of this Schedule A will control.
Capitalized terms used in this Schedule A shall have the meaning as defined in
this Schedule A. Capitalized terms used in this Schedule A and not otherwise
defined herein shall have the same meaning set forth in the Agreement.
You understand that you must meet certain eligibility requirements in order to
participate in the OptBlue Program, including that you must be located in the
fifty United States and have an estimated American Express charge volume of
less than $1M per year. You further understand that if you currently or at any
point in the future do not meet these eligibility requirements, please contact
Bank and Bank will assist you in securing the appropriate arrangements with
American Express. You understand that your continued acceptance of American
Express Cards will at all times be subject to the discretion of Processor and
American Express. Notwithstanding any other provision of the Agreement,
including this OptBlue Addendum, Bank may terminate this Agreement immediately
upon Bank’s receipt of instructions from Processor or American Express to
discontinue providing Services to you or in connection with the OptBlue
For the purposes of this Schedule, “Claim” means any claim
(including initial claims, counterclaims, cross-claims, and third party
claims, and any allegation of an entitlement to relief), dispute, or
controversy that American Express has a right to join (or against American
Express) arising from or relating to the OptBlue Program, or the relationship
resulting from the OptBlue Program, whether based in contract, tort (including
negligence, strict liability, fraud, or otherwise), or statutes, regulations,
or any other theory.
Card Acceptance. You may elect to accept other payment Card
without also accepting American Express Cards.
Arbitration Agreement for Claims Involving American Express. In
the event that you or Bank are not able to resolve a Claim, this Section
2 explains how Claims may be resolved through arbitration. You or Bank
or American Express may elect to resolve any Claim by binding individual
arbitration. Claims will be decided by a neutral arbitrator. If
arbitration is elected by any party to resolve a Claim, the parties
understand and agree that neither you nor Bank nor American Express will
have the right to litigate or have a jury trial on that Claim in court.
Further, you, Bank, and American Express understand and agree that the
parties will not have the right to participate in a class action or in a
representative capacity or in a group of persons alleged to be similarly
situated pertaining to any Claim subject to arbitration under this
Agreement. Arbitrator’s decisions are final and binding, with very
limited review by a court, and once confirmed by a court of competent
jurisdiction, an arbitrator’s final decision on a Claim is generally
enforceable as a court order. Other rights you, Bank, or American
Express would have in court may also not be available in arbitration.
Initiation of Arbitration. Claims may be referred to either JAMS
or the American Arbitration Association (“AAA”), as
selected by the party electing arbitration. Claims will be resolved
pursuant to this Section 2 and the selected arbitration organization’s
rules in effect when the Claim is filed, except where those rules
conflict with this Agreement. Contact JAMS or AAA to begin an
arbitration or for other information. Claims may be referred to another
arbitration organization if all parties agree in writing, if American
Express or Bank, on one hand, selects the organization and you, on the
other hand, select the other within 30 days thereafter or if an
arbitrator is appointed pursuant to section 5 of the Federal Arbitration
Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing will take place in
New York, NY.
Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim
will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported
representative basis or on behalf of the general public or other persons allegedly similarly
situated. The arbitrator’s authority is limited to Claims between you, us, and American Express. An
arbitration award and any judgment confirming it will apply only to the specific case brought by
you, us or American Express and cannot be used in any other case except to enforce the award as
between you, us and American Express. This prohibition is intended to, and does, preclude you from
participating in any action by any trade association or other organization against American Express.
Notwithstanding any other provision in this Section 2, if any portion of these Limitations on
Arbitration set forth in this Section 2 is found invalid or unenforceable, then the entire Section 2
(other than this sentence) will not apply, except that you, we, and American Express do not waive
the right to appeal that decision.
Previously Filed Claims/No Waiver. You, Bank, or American Express
may elect to arbitrate any Claim that has been filed in court at any
time before trial has begun or final judgment has been entered on the
Claim. You, Bank, or American Express may choose to delay enforcing or
to not exercise rights under this Section 2, including the right to
elect to arbitrate a claim, without waiving the right to exercise or
enforce those rights on any other occasion. For the avoidance of any
confusion, and not to limit its scope, this Section 2 applies to any
class-action lawsuit relating to the “Honor All Cards,”
“nondiscrimination,” or “no steering” provisions of the American Express
Merchant Regulations, or any similar provisions of any prior American
Express Card acceptance agreement, that was filed against American
Express prior to the effective date of the Agreement to the extent that
such claims are not already subject to arbitration pursuant to a prior
agreement between Merchant and American Express.
Arbitrator’s Authority. The arbitrator will have the power and
authority to award any relief that would have been available in court
and that is authorized under this Agreement. The arbitrator has no power
or authority to alter the Agreement or any of its separate provisions,
including this Section 2.
Split Proceedings for Equitable Relief. You, Bank, or American
Express may seek equitable relief in aid of arbitration prior to
arbitration on the merits if necessary to preserve the status quo
pending completion of the arbitration. This Section 2 shall be enforced
by any court of competent jurisdiction.
Small Claims. American Express will not elect arbitration for any
Claim you properly file in a small claims court so long as the Claim
seeks individual relief only and is pending only in that court.
Governing Law/ Arbitration Procedures/Entry of Judgment. This
Section 2 is made pursuant to a transaction involving interstate
commerce and is governed by the FAA. The arbitrator shall apply New York
law and applicable statutes of limitations and honor claims of privilege
recognized by law. The arbitrator shall apply the rules of the
arbitration organization selected, as applicable to matters relating to
evidence and discovery, not federal or any state rules of procedure or
evidence, provided that any party may ask the arbitrator to expand
discovery by making a written request, to which the other parties will
have 15 days to respond before the arbitrator rules on the request. If
your Claim is for $10,000 or less, you may choose whether the
arbitration will be conducted solely based on documents submitted to the
arbitrator, through a telephonic hearing, or by an in-person hearing
under the rules of the selected arbitration organization. At the timely
request of a party, the arbitrator will provide a written opinion
explaining his/her award. The arbitrator’s decision will be final and
binding, except for any rights of appeal provided by the FAA. Judgment
on an award rendered by the arbitrator may be entered in any state or
federal court in the federal judicial district where your headquarters
or your assets are located.
Confidentiality. The arbitration proceeding and all information
submitted, relating to or presented in connection with or during the
proceeding, shall be deemed confidential information not to be disclosed
to any Person not a party to the arbitration. All communications,
whether written or oral, made in the course of or in connection with the
Claim and its resolution, by or on behalf of any party or by the
arbitrator or a mediator, including any arbitration award or judgment
related thereto, are confidential and inadmissible for any purpose,
including impeachment or estoppel, in any other litigation or
proceeding; provided, however, that evidence shall not be rendered
inadmissible or non- discoverable solely as a result of its use in the
Costs of Arbitration Proceedings. You will be responsible for
paying your share of any arbitration fees (including filing,
administrative, hearing or other fees), but only up to the amount of the
filing fees you would have incurred if you had brought a claim in court.
American Express will be responsible for any additional arbitration
fees. At your written request, American Express will consider in good
faith making a temporary advance of your share of any arbitration fees
or paying for the reasonable fees of an expert appointed by the
arbitrator for good cause.
Additional Arbitration Awards. If the arbitrator rules in your
favor against American Express for an amount greater than any final
settlement offer American Express made before arbitration, the
arbitrator’s award will include: (1) any money to which you are entitled
as determined by the arbitrator, but in no case less than $5,000; and
(2) any reasonable attorneys’ fees, costs and expert and other witness
fees incurred by you.
Definitions. For purposes of this Section 2 only, (i) “American
Express” includes its Affiliates, licensees, predecessors, successors, or
assigns, any purchasers of any receivables, and all agents, directors,
and representatives of any of the foregoing, (ii) “You”
includes your Affiliates, licensees, predecessors, successors, or
assigns, any purchasers of any receivables and all agents, directors,
and representatives of any of the foregoing, and (iii)
“Claim” means any allegation of an entitlement to
relief, whether damages, injunctive or any other form of relief, against
American Express or any other Person (including you or us) that American
Express has the right to join, including any allegation involving a
transaction using an American Express product or network or regarding an
American Express policy or procedure.
Schedule B to Payment Processing Services Addendum
Visa Chargeback Auto Acceptance Response Service
The terms and conditions set forth in this Schedule B govern the provision of
Visa Chargeback Auto Acceptance Response Service (the “Visa Response Service”). The
Response Service is provided to you by Processor and not Bank. All
Visa Card accepting Merchants will be automatically enrolled in the Visa
All aspects of the Visa Response Service contemplated under this Schedule B
are subject to the rest of the Agreement, as applicable, except to the extent
the terms of this Schedule B directly conflict with another provision of the
Agreement, in which case the terms of this Schedule B will control.
Definitions. Capitalized terms used in this Schedule B shall have the meaning as defined
in this Schedule B. Capitalized terms used in this Schedule B and not
otherwise defined herein shall have the same meaning as set forth in the
Explanation of Service. Visa charges a fee (“Late Fee”) for
any Chargeback request that does not receive a response within the
applicable Visa-designated timeframe (“Response Deadline”).
Merchants may respond to Chargeback requests by either accepting or
challenging the Chargeback request.
Visa Response Service Parameters. The Processor sets the
parameters provided in this Section 2 for all Visa Card accepting
Merchants. The Visa Response Service automatically responds to all Visa
Chargebacks within 20 days when a Visa Card accepting Merchant response
has not been received by the due date. A Chargeback request that the
Service automatically accepts prior to the Response Deadline is referred
to in this Addendum as an “Auto Accepted Request”.
Processor Liability. Processor will not have liability or
responsibility for any Late Fee that a Visa Merchant may incur in
connection with an Auto Accepted Request. A Visa Card accepting Merchant
that has incurred a Late Fee in connection with an Auto Accepted Request
must resolve such Late Fee directly with Visa.
Illustrative Example. Reasons that a Visa Card accepting
Merchant might incur a Late Fee in connection with an Auto Accepted
Request may include, but are not limited to, an instance where, for
example, (A) Visa requires acceptance of a Chargeback request within
20 days of receipt of such Chargeback request, (B) there is a delay
between when Visa receives the Chargeback request and when Visa
sends that Chargeback request to the merchant, and (C) the
consequence of that delay is that the merchant’s acceptance of the
Chargeback request within 20 days of its receipt of the Chargeback
request nevertheless exceeds 20 days after Visa’s receipt of the
For those Chargeback requests that the Visa Response Service
automatically accepts, the Visa Card accepting Merchant will incur the
loss of funds related to that Chargeback request and will incur all
other applicable fees, including Chargeback fees, that it would have
incurred had the Auto Acceptance Merchant manually accepted the
Fees. Fees applicable (if any) to the Visa Response Services will be payable in
accordance with the pricing section of the Customer Application as such may
be modified by Bank from time to time.