Dated: May 12th, 2016. This Merchant Services Agreement (“Agreement”) is a triparty legal agreement between ProPay, Inc. (“ProPay”), Wells Fargo Bank, N.A. (“Sponsor Bank”) (ProPay and Sponsor Bank collectively referred to as “we”, “our”, and “us”), and the business entity submitting this Agreement (“Merchant”, “you”, “your”) (collectively, “parties”). This Agreement governs your use of our payment processing services (“Services”) and must be agreed to in order to use the Services. This Agreement replaces any other merchant agreement you may have already agreed to with ProPay and Sponsor Bank.
1. THE SERVICES.
The Services allow you to accept payment from your customers using credit and debit cards (“Card(s)”) validly issued by Visa U.S.A. Inc. (“Visa”), MasterCard International Incorporated (“MasterCard”), DFS Services LLC (“Discover”), American Express Travel Related Services Company, Inc. (“American Express”) (collectively, “Card Brand(s)”). You must only use the Services for the business purpose described in your Merchant Services Application and not for personal, family, or household use. We hereby grant you use of the Services according to the terms found in this Agreement.
1.2 REQUIRED INFORMATION.
In order to use the Services, you must provide us with the information and documentation we request, including information relating to your identity, customers, transactions, financial statements and tax returns. ProPay may request that you provide us with your financial statements and other information more frequently than annually. You must provide accurate and complete information and keep the information up-to-date. We rely on this information for underwriting and to meet our obligations under laws and regulatory requirements. On an ongoing basis, you will provide us with the current address of each of your offices, all “doing business as” (DBA) names used by you, and a complete description of goods sold and services provided by you. If the scope or nature of your business or the type of products or services you offer changes, you must notify us prior to the change. You are liable to us for all losses and expenses incurred by us arising out of your failure to report changes to us. We reserve the right to decline your Merchant Services Application for any reason.
1.3 MULTIPLE ACCOUNTS.
You may request multiple accounts with ProPay to allow for easier reporting of transactions. If ProPay approves additional accounts, you are responsible for any additional fees or costs. These additional accounts collectively count toward the underwriting limits we set for you.
You authorize us to make business and personal credit inquiries (including, but not limited to, credit reports for your directors, officers, and principals), identity-verification inquiries, transaction-verification inquiries, and any other inquiries considered necessary relating to this Agreement, and to provide any information and documentation to Sponsor Bank and/or the Card Brands as required by them. You also authorize any person or credit reporting agency to compile information to answer those inquires and to furnish that information to us. You agree to include the address of your permanent establishment on your website and prominently inform your customers of your identity at all points of interaction in using the Services. ProPay may review your books and records for the sole purpose of confirming or assessing compliance with the terms and conditions of this Agreement. Any such review will be conducted during normal business hours at a place reasonably designated by Merchant.
1.5 PROCESSING LIMITS.
There are no monthly processing minimums, but we will assign a maximum dollar amount per sales ticket and an aggregate maximum dollar amount of Card (defined below) transactions per calendar month. You may request to increase in these limits, but any increase shall be at our sole discretion. We may also decrease any increase previously authorized.
1.6 DATA OWNERSHIP.
ProPay will own all data associated with your use of the Services. You grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display this data for the following purposes: (a) providing and improving the Services; (b) internal usage, including but not limited to, data analytics so long as such data is anonymous and aggregated with other merchant data; (c) complying with legal requirements and assisting law enforcement agencies; and (d) any other purpose for which you provide consent.
2. COMPLIANCE WITH THE RULES AND LAWS.
2.1 LAWS, RULES & POLICIES.
2.2 CARD ACCEPTANCE.
You will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued (“Cardholder”) for bona fide transactions for the purchase of goods or services from you. You may elect not to accept Visa and/or MasterCard branded debit cards, but you must provide ProPay with prior written notice of such election. You will properly disclose to the Cardholder at the time of the Card transaction your name, return policy, refund policy, and other limitations you may have on accepting returned merchandise. Your refund polices for purchases made with a Card must be at least as favorable as your refund policy for purchases made with any other form of payment. You will identify the Cardholder when accepting payment and will request the Card expiration date and ZIP code or postal code from the Cardholder’s billing address. It is also highly recommended that you obtain the security code from each Card, but you must not store this information permanently.
2.3 CARD AUTHORIZATION.
No later than 72 hours from the time you initiate a transaction, but prior to completing it, you will request an authorization for the transaction using equipment meeting specifications determined by ProPay. This authorization request must include your name and account identifier, the Card expiration date, the ZIP code of the customer’s billing address, and the total amount of the transaction, including taxes. ProPay may also require additional information in your request, such as: (a) CVV2 code or the equivalent; (b) a brief description of the goods or services involved; (c) the transaction authorization number; and, (d) if applicable, adjacent to the signature line, a notation that all sales are final. When authorization is obtained, you will be deemed to warrant the identity of the customer as the Cardholder. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of this Agreement, or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card. We may refuse to authorize any transaction. Our name will appear in conjunction with your name on Cardholders’ statements. Under no circumstance will we be responsible for processing credits or adjustments related to transactions not originally processed by ProPay. All transactions and deposits are subject to our audit and final verification, and may be adjusted for inaccuracies. All credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules, whether or not a transaction is charged back by the Card issuer.
2.4 SALES TRANSMITTALS.
You will retain a copy of the sales transmittal for the completed transaction in accordance with the Rules for 25 months or such longer period as the Rules may require. Within three business days of our request, you will produce copies of sales transmittals and other transaction evidence, otherwise ProPay will have chargeback rights with respect to such transactions.
2.5 RECURRING TRANSACTIONS.
You must obtain the Cardholder’s prior written consent for recurring transactions, including a description of the product or service and the frequency and duration of the recurring charge, and notify the Cardholder that he or she may cancel recurring billing charges at any time. You must retain evidence of such written consent for 24 months from the date you submit the last recurring billing charge. You will honor any Cardholder cancellation, and if this Agreement is terminated for any reason, you will, at your own cost, advise all Cardholders to whom you submit recurring billing charges that you no longer accept the Card for amounts owed.
2.6 USE OF TRADEMARKS.
During the Term, you may use Card Brand trademarks and logos pursuant to the terms of the Rules. At any time we may prohibit your use of these marks or require changes to your use of the marks as we deem necessary or appropriate. The Card Brands are the sole and exclusive owners of their marks. Your right to use the Card Brand marks will cease upon termination of this Agreement.
2.7 INFORMATION SECURITY.
2.8 THIRD PARTY SERVICE PROVIDERS.
You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions. You must notify us if you use an agent that will have access to Cardholder data and you are responsible for ensuring their compliance with Rules, Laws and Policies.
The terms of this Agreement, our communications regarding the Services, all Cardholder data, and all information and data belonging to or relating to ProPay’s business and Sponsor Bank, are our confidential information. You will safeguard and retain in strictest confidence such confidential information by using the same degree of care, but no less than a reasonable amount of care, that you use to protect your own confidential information. Except to the extent specifically permitted by the Rules, or as approved in writing by ProPay, you will limit disclosing our confidential information to your employees with a specific need to know such information solely for purposes relating to your obligations under this Agreement.
3.10 MONITORING, DISPUTES & REFUNDS.
A. YOUR DUTY TO MONITOR ACCOUNT & NOTIFY PROPAY OF UNAUTHORIZED ACCESS OR TRANSACTIONS.
ProPay will not, and has no obligation to, confirm the validity of the recipient or the transaction pursuant to which funds are transferred. ProPay assumes no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until ProPay receives appropriate and timely notice by you of the unauthorized transfer requests. You must promptly and consistently inspect your transaction history. Immediately report any possible errors or unauthorized access to your account by sending an email to email@example.com that includes: (1) your name and account number; (2) the dollar amount of the asserted error; (3) a description of the asserted error; and, (4) an explanation of why you believe an error exists and, if known, the cause of the error. The email notice must not include any full Social Security Number, credit card number, or your ProPay Prepaid MasterCard Card number or verification number. Notifying us quickly may limit your liability. ProPay will reimburse you for loss from an unauthorized ACH transaction that is originated through ProPay that occurs within 60 days after the transaction you claim is unauthorized is posted to your account history reports, or within 60 days after you otherwise become aware of unauthorized access to your account. If you do not notify ProPay within 60 days after receiving notice, you have waived any such dispute and may not recover any funds that you lost after the 60 days, if ProPay can prove that the loss could have been stopped or avoided if you had notified ProPay within that time. ProPay may extend the 60-day time period for notification in its sole discretion.
B. PROPAY’S INVESTIGATION & RESOLUTION.
You may not make a claim against ProPay for any loss or expense relating to any asserted error or unauthorized transaction for 60 days following ProPay’s receipt of your email notice referenced above. During that 60 day period, ProPay will be entitled to investigate the asserted error or unauthorized transaction. ProPay will advise you of the results of our investigation within 30 days after we hear from you (45 days for transactions at a point of sale terminal or outside the United States) and if we have made an error, we will correct it promptly. However, ProPay reserves the right, in its sole discretion, to take up to 45 days to investigate your complaint or question (90 days for transactions at a point of sale terminal or outside the United States). Should ProPay elect to extend the time it takes to investigate your complaint or question, we will provisionally re-credit you within 10 days for the amount you think is in error, so that you will have use of the money during the time it takes us to complete our investigation. If we determine that there was no error, we will send you an explanation via email of the determination and we may debit any provisional credit, any fees, and/or interest provisionally credited in relation to the alleged error. You may ask for copies of the documents that we used in our investigation, subject to a copy fee. If we discover a processing error, ProPay will rectify the error. If the error results in you receiving more money than to which you were entitled, then ProPay reserves the right to correct the transactions that were incorrectly executed, including but not limited to debiting your account, regardless of the nature and cause of the error.
C. DISPUTES, INQUIRIES, AND CHARGEBACKS.
We will handle inquiries from a Card Brand, disputes between you and any Cardholder, credits, and customer service relating to any Card transaction. Based on Cardholder disputes we may reverse Card transactions (“chargebacks”), and we will offset the value of such chargebacks. You must not reenter or reprocess any Card transaction that has been charged back, but instead allow the chargeback process to proceed to its conclusion as described in each Card Brand’s Rules. If you disagree with a chargeback, you may request a chargeback reversal within the applicable Card Brand’s timeline in its Rules. “Excessive Activity” means: chargebacks in excess of .50% of the transaction ratio of your Card transactions; or, chargebacks in excess of .50% of the transaction ratio of the dollar amount of your Card transactions; or, returns in excess of 3% of the transaction ratio of your Card transactions; or, denied transactions in excess of 5% of the transaction ratio of your Card transactions. The existence of Excessive Activity will be a breach of this Agreement that may result in additional action as we deem necessary, such as suspension of processing privileges or creation or maintenance of a reserve account. We may revoke or reverse any credit given to you where: (1) the Card transaction was not made in compliance with this Agreement and the Laws, Rules, and Policies; (2) the Cardholder disputes liability to us for any reason, including but not limited to those chargeback rights enumerated in the Rules; (3) the Card transaction was not directly between you and the Cardholder; or (4) a deposit to your account was made erroneously.
D. REFUND CREDITS.
You must issue a credit memorandum rather than making a cash advance, disbursement, or refund on any Card transaction. We will debit from the amounts owing you for the total face amount of each credit memorandum. You will not submit a credit memorandum relating to any Card transaction not originally submitted to us, nor will you submit a credit memorandum that exceeds the amount of the original Card transaction. You will, within the time period specified by Law, provide us with a credit memorandum or credit statement for every return of goods or forgiveness of debt for services that were the subject of a Card transaction.
3.11 PROHIBITED PRACTICES.
You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction between you and a Cardholder, or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. We will refer perpetrators of fraudulent transactions to law enforcement. You must not honor any Card that is expired or listed on a current Electronic Warning Bulletin file, even if authorization has been obtained. You must not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if you receive such payments you must promptly remit them to us. You must not attempt authorization on a Card twice for the same transaction, or reenter or reprocess any transaction that has been charged back. You agree not to initiate any ACH Debits or Credits to or from a savings account, or a foreign bank or the branch of a foreign bank in a U.S. territory. The term foreign bank does not include: (a) A U.S. agency or branch of a foreign bank; and (b) An insured bank organized under the laws of a U.S. territory. You may not split transactions into multiple Card transactions except when: (i) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or, (ii) the amount represents an advance deposit in a Card transaction completed in accordance with the Rules. You will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt, or dishonored check of a Cardholder. You must not process transactions for, receive payments on behalf of, or (unless required by Law) redirect payments to a third party. You must not use the Service for high risk transactions or illegal activities, as per the High Risk Transactions/Acceptable Use Policy (“High Risk Policy”) found at http://ziftpay.com/legal/high-riskacceptable-use-policy/ and you acknowledge liability for any violation of that policy. Your violation of the High Risk Policy could incur substantial liability and/or damages, including, without limitation, fines and other related expenses from the Sponsor Bank, Card Brands, payment processors, and service providers, the amount of which may be extremely difficult and impracticable to ascertain. As such, if you violate the High Risk Policy, we may (1) fine you $500.00 USD, which you acknowledge is a reasonable minimum estimate of our damages, (2) invoke our security interest set forth in section seven, (3) take legal action against you and/or (4) take any other action permitted under this agreement to recover any and all losses, expenses and fines levied on us in excess of the amount fined.
3.12 AMERICAN EXPRESS.
Important Note: This section applies only if you accept American Express Cards. If there is a conflict between this section and any other section of this Agreement as it applies to American Express Cards, then this section governs.
A. CUSTOMER SERVICE INFORMATION.
You must maintain customer service information that is readily available for review by American Express Cardholders transacting with you. The customer service information should provide clear instructions on how to contact you, including an active customer service email address and telephone number.
B. THIRD-PARTY BENEFICIARY.
You understand and covenant that you are not a third-party beneficiary under our agreement with American Express, including all schedules and exhibits, or the American Express Rules. You acknowledge and agree that American Express is a third-party beneficiary under this Agreement between you and ProPay. This means American Express has the rights, but not the obligation, to enforce the terms of this Agreement against you.
You authorize us to submit American Express Card transactions to, and receive payment from, American Express on your behalf. You authorize us to disclose Card transaction data and data about you to American Express, its affiliates, agents, subcontractors, and employees, and further authorize these entities to use such information to perform services, operate and promote the American Express network, perform analytics and create reports, and for any other lawful business purpose, including as described in the American Express Rules. You authorize American Express to use your name, address, and website address in any media.
4. FEES, TAXES & IRS REPORTING.
Fees for the Services are shown in the fee schedule found at the end of this Agreement. Fees will be calculated and netted out from amounts due to you concurrently with the associated transaction activity. Chargebacks, credits, fines imposed by Card Brands, insufficient fund fees and any other losses or damages will also be netted out from funds due you under this Agreement. We may suspend the Services and stop releasing funds represented by Card transactions to you until you pay all fees and other expenses. You may be granted processing credit, which may only be used to offset processing fees you may owe to us, and we may cancel any such processing credit.
4.2 DEPOSIT OF FUNDS TO MERCHANT OPERATING ACCOUNT.
Sponsor Bank will deposit to a non-interest bearing pooled account titled in the name of Sponsor Bank for the benefit of all ProPay merchants all amounts of Card transactions complying with the terms of this Agreement and the Rules. This account is maintained by Sponsor Bank for the clearing and settlement of transactions of all ProPay merchants, including you. All amounts owing to you will be transferred from this account to your bank account as detailed below. The funds in this merchant operating account may be eligible for FDIC pass-through insurance up to the maximum amount as set forth in FDIC regulations, as amended from time to time.
4.3 BANK ACCOUNT.
You must establish and maintain a bank account to facilitate the transfer of amounts due you from Card transactions. This bank account may not be a savings account and must be at: (a) a domestic financial institution located in the U.S. or its territories (Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands); (b) a U.S. Agency or branch of a foreign bank; or (c) an insured bank organized under the laws of a U.S. territory. You authorize Sponsor Bank and ProPay to credit monies due to you to this account and also to debit this account for any and all fees and other expenses if you do not have sufficient funds in the merchant operating account described above. This authorization must remain in place at all times during the Term of the Agreement and until and all your obligations to ProPay have been paid in full. You agree that we will not incur any liability for any loss, costs, or fees incurred by you that are the result of such debits by us. You may change the bank account to which ProPay transfers the proceeds of Card transactions, but no more than once every 90 days. You acknowledge that if a financial institution name and number are incorrect or inconsistent, we may rely on the identifying number alone, even if the number identifies a financial institution, person, or account other than the one named. ProPay will not, and has no obligation to, confirm the validity of the transaction. For anti-fraud and anti-money laundering purposes, ProPay reserves the sole and exclusive right to review large electronic transfer of funds to or from your account before releasing the funds and to refuse any transfer of funds at our discretion.
4.4 TAXES & IRS REPORTING.
You are obligated to pay all taxes and other charges imposed by any governmental authority on the Services provided under this Agreement. You understand that this does not obviate your responsibility for your tax liability incurred with the sale of goods or services regarding transaction activity associated with your account. To comply with IRS 1099-K reporting requirements, we may be required to file a form 1099-K with the U.S. Internal Revenue Service (IRS). We may collect federal backup withholding upon transaction settlement, on behalf of the IRS, from you if you do not supply your legal name, SSN or EIN, or if you fail to respond to a request from us to verify the same. All withholdings will be remitted to the IRS as required by law.
5. TERM & TERMINATION.
This Agreement will become effective on the date accepted by you (“Effective Date”) and will remain in effect for as long as you use the Zift Services unless terminated earlier according to this Agreement. You may terminate this Agreement by closing your account down with Zift at any time.
If (a) a party breaches the Agreement and such default continues for 30 days after receipt of written notice thereof from the other party (setting forth in reasonable detail the nature of the default); or (b) a party makes a general assignment for the benefit of creditors; a receiver is appointed and not removed within 30 days after such appointment; a party files a petition for bankruptcy or reorganization under the provisions of any applicable bankruptcy laws; or a party declares its insolvency or becomes insolvent; then the other party may terminate this agreement immediately upon written notice. In addition to the foregoing, the non-defaulting party may terminate this Agreement immediately upon written notice to the defaulting party upon the second default of a similar nature within any 12-month period. Additionally, we may terminate this agreement at any time, with or without cause, and without prior notice. Termination does not change your liability for processed payments, refunds or chargebacks associated with your account.
5.3 ACCOUNT INACTIVITY.
Failure to present any transaction for clearing and settlement may result in termination of this Agreement.
6. YOUR WARRANTIES & INDEMNIFICATION.
6.1 REPRESENTATIONS AND WARRANTIES.
You represent and warrant to us: (1) that all information in the application or any other document submitted to us is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (2) that your entity was validly formed, registered, in good standing, and duly qualified to conduct business in each jurisdiction where failure to do so would have a material adverse effect on your business; (3) that you are will comply with all Laws, Rules and Policies in the provision and sale of all goods and services that are the subject of each transaction; (4) that you have the authority on Merchant’s behalf to execute and perform the terms and conditions of this Agreement and you are authorized to execute any documents and to take any action which may be required by us now or in the future.; (5) that there is no action, suit, or proceeding pending or to your knowledge, threatened, which if decided adversely would impair your ability to carry on your business substantially as now conducted or which would adversely affect Your financial condition or operations; (6) that you have never been placed on the MasterCard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us; (7) that all transactions are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in writing with us; (8) that you will immediately notify ProPay if there are any changes to your business, ownership or the nature of your operations that make any information contained your application, your representations and warranties, or information otherwise provided to Sponsor Bank or ProPay inaccurate, incomplete, incorrect or misleading; (9) that you have read and agree to be bound by this Agreement and the Policies; and (11) that entering this Agreement will not violate any law, or conflict with any other agreement to which you are subject.
You will indemnify, defend, and hold ProPay, Sponsor Bank, and the Card Brands and their respective employees, officers, directors, shareholders and agents, harmless for and from any and all loss, cost, expense, claim, damage, and liability (including attorneys’ fees and costs, and collections costs) paid or incurred by any one or more of them, arising from, caused by, or attributable to, any of the following: (1) any of your acts or omissions with respect to your use of the Services; (2) acting in accordance with any instruction from you or us regarding your use of the Services; (3) any Card transaction processed under this Agreement, (4) any breach by you of this Agreement and those related to any bankruptcy proceeding; (5) willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives; (6) theft, embezzlement, or unauthorized use of the Services; or (7) action by us exercising any right we have under this Agreement, Laws, Rules, or Policies.
7. PROPAY’S LIABILITY & DISCLAIMER OF WARRANTIES.
7.1 LIABILITY FOR ERRORS.
If ProPay does not complete a transaction on time or in the correct amount under this Agreement, we will be liable for your direct damages proximately caused by this failure. However, there are some exceptions. For instance, we will not be liable if:
• Through no fault of ours, you do not have enough available funds to make the transaction.
• Any terminal or system was not working properly and you knew about the breakdown when you started the transaction.
• Circumstances beyond our control (such as fire or flood) prevent the transaction, despite reasonable precautions that we have taken.
7.2 LIMITATION OF LIABILITY.
Under no circumstances shall Sponsor Bank’s or ProPay’s financial responsibility for its failure to perform any obligation under this Agreement exceed $50,000. Except as otherwise provided for in this Agreement, in no event will any party, its respective directors, officers, employees, or affiliates, be liable for special, incidental, consequential, punitive damages, lost profits or any loss, theft, disappearance, or damage to data transmitted electronically in connection with this Agreement.
7.3 DISCLAIMER OF WARRANTIES.
Except as otherwise specifically set forth in this Agreement, Sponsor Bank and ProPay disclaim all representations and warranties, express or implied, regarding the merchant services, including without limitation, any and all warranties of merchantability, fitness for a particular purpose, quality, suitability, non-infringement and otherwise (regardless of any course of dealing, custom, or usage of trade), and regarding any other services provided under this Agreement or any goods provided incidental to such services. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.
8. SECURITY INTEREST & RECOUPMENT.
This Agreement will constitute a security agreement under the Uniform Commercial Code wherein to secure your due and punctual performance of all of your obligations to us under this Agreement you grant to us a security interest in and lien upon: (a) all funds representing amounts owing you under this Agreement, regardless of the source of such funds; (b) all funds at any time in the reserve account, regardless of the source of such funds; (c) present and future Card transactions; (d) any amount which may be due to you under this Agreement, including, without limitation all rights to receive any payments or credits under this Agreement; and (e) upon our request, any other security to secure your obligations under this Agreement (collectively, the “Secured Assets”). On our request you agree to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of your obligations under this Agreement and any other agreements now existing or later entered into between us and we will have all rights afforded under the Uniform Commercial Code, Law, and in equity. We may exercise this security interest without notice or demand by making an immediate withdrawal or freezing of your Secured Assets. You represent and warrant that no other person or entity has a security interest in the Secured Assets and you agree to obtain from us written consent prior to granting a security interest of any kind in the Secured Assets to a third party. We have the right of recoupment and to offset any outstanding or uncollected amounts you owe to us from your account and from any amounts we owe to you under this Agreement or any other agreement. You agree that this is a contract of recoupment and as such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us.
9. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL & REIMBURSEMENT OF COSTS AND EXPENSES.
This Agreement will be governed by and construed in accordance with the laws of Utah exclusive of its rules regarding conflicts of laws. You agree that the exclusive jurisdiction and venue for any disputes hereunder shall be an appropriate court located in Salt Lake City, Utah. You and we waive any right to trial by jury in any action concerning any rights or dispute under this agreement. The prevailing party in an action brought against the other to enforce the terms of this Agreement or any rights or obligations hereunder, will be entitled to receive its reasonable costs and expenses of bringing such action including its reasonable attorney’s fees in addition to any other recoverable damages.
10.1 AGENCY RELATIONSHIP.
You authorize ProPay to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits ProPay to generate an electronic funds transfer to process each payment transaction. This authorization will continue until your ProPay account is closed or terminated. You agree that ProPay’s receipt of transaction proceeds satisfies your customers’ obligations to you. ProPay will remit to you funds actually received by ProPay on your behalf, less amounts owed to ProPay, subject to any chargebacks or reserve withheld or applied as per this agreement.
10.2 FORCE MAJEURE.
Neither party will be liable for delay in performing any of its obligations insofar as the performance of such obligation is delayed by an event that is beyond its reasonable control. The parties will notify each other of any such delay in reasonable detail as soon as possible and will endeavor to mitigate the impact of such event.
10.3 SEVERABILITY AND WAIVER.
If any provision of this Agreement is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of this Agreement shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under this Agreement by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this Agreement or affect the validity of this Agreement or curtail our ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by us.
10.4 RIGHTS AND REMEDIES CUMULATIVE.
The rights conferred upon ProPay, Sponsor Bank, and the Card Brands in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we have under this Agreement, at law, or in equity. Rather, each right we have at law or in equity will be cumulative and concurrent and in addition to every other right.
10.5 ENTIRE AGREEMENT.
This Agreement, including the Policies, the completed Merchant Services Application, the Rules, Laws, and any amendment or supplement to this Agreement or other referenced agreements, all of which are incorporated into this Agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are superseded by this Agreement.
This Agreement may be assigned by us, but may not be assigned by you without our prior written consent. If you sell your business, the original owner and any original guarantors will be held personally liable for all chargebacks and any other liabilities of the new owners.
This Agreement may be amended or revised by Sponsor Bank or ProPay updating the terms at http://ziftpay.com/legal/payment-services-terms-and-conditions/. While we may notify you of these amendments, it is your sole responsibility to review and maintain familiarity with the Agreement, Rules, Law and Policies. If you do not agree to the terms of any such amendment, modification or revision, you may terminate this Agreement by providing written notice to ProPay within 30 days of the date such amendment is posted. Your failure to terminate this Agreement shall be deemed to be your acceptance of and agreement to any such amendment. Notwithstanding the foregoing, any fee or rate increase imposed on ProPay by one or more of the Card Brands, Sponsor Bank, a payment processor, or a service provider may be passed on to you and shall be effective upon the date of your receipt of notice of such increase without giving rise to the right to terminate.
10.8 CONSENT TO DO BUSINESS ELECTRONICALLY, ELECTRONIC SIGNATURE, COMMUNICATION, AND NOTICES.
You consent to do business electronically, which means that you agree that all ProPay agreements and Policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding transactions and your agreements with ProPay (all of which are referred to herein as the “Communications”) may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep us informed of any change in your electronic or mailing address or other contact information by contacting Zift Customer Service at http://ziftpay.com/support/. Your electronic signature, including, without limitation clicking “Agree and Continue” or an action of similar meaning or significance, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business under the ProPay agreements and Policies electronically at any time by contacting firstname.lastname@example.org withdrawing your consent to transact business electronically. If you do so, this Agreement will be terminated. However, any Communications or transactions between us before your withdrawal of such consent, will be valid and binding. Any written notice under this Agreement will be deemed given and delivered upon the earlier of: (a) actual receipt, (b) five days after being deposited in the United States mail, and addressed, if to us, to: ProPay, Inc., 3400 N Ashton Blvd, Suite 200, Lehi, UT 84043, and if to you: to the last address shown on our records, (c) one business day after being sent by email or other electronic communication if to you at the last email address provided by you to us and if to ProPay at http://ziftpay.com/contact/, or (d) the date of publication of the update and/or change to our website. ProPay’s business days are Monday through Friday, excluding federal holidays.
Merchant Services Provider Contact Information: ProPay, Inc. (“ProPay”); 3400 N. Ashton Blvd., Suite 200, Lehi, UT 84043. Application Inquiry Phone: 801-341-5300; Customer Service Phone: 866-573-0951. Website: http://www.propay.com.
Member Bank Information: Wells Fargo Bank, N.A. (“SponsorBank”); 1200 Montego, Walnut Creek, CA 94598. Phone: 925-746-4167.
Important Sponsor Bank Responsibilities:
Sponsor Bank is the only entity approved to extend acceptance of Card Brand (as defined below) products directly to a Merchant.
Sponsor Bank must be the principal (signer) to the Merchant Services Agreement.
Sponsor Bank is responsible for and must provide settlement funds to Merchant.
Sponsor Bank is responsible for all funds held in reserve that are derived from settlement.
Sponsor Bank is responsible for educating Merchants on pertinent Card Brand Rules with which Merchants must comply; but this information may be provided to you by ProPay.
Merchant Information: Refer to the Merchant Services Application (“Merchant”).
Important Merchant Responsibilities:
Ensure compliance with cardholder data security and storage requirements.
Maintain fraud and chargebacks below Card Brand thresholds.
Review and understand the terms of the Merchant Services Agreement.
The responsibilities listed above do not supersede terms of the Merchant Services Agreement and are provided to ensure Merchant understands some important obligations of each party and that Sponsor Bank is the ultimate authority should the Merchant experience any problems.