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HomeMy WebLinkAbout25C - AGMT - MERCHANT PAYMENT SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AGREEMENT FOR MERCHANT PAYMENT SERVICES WITH TRANSFIRST, LLC CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 191���1�L�1:TX� Authorize the City Manager and the Clerk of the Council to execute the attached agreement with TransFirst LLC, approving compensation not to exceed $70,000 annually, for two one -year terms commencing October 1, 2013 and continuing through September 30, 2015, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency (FMSA) Treasury Division is responsible for maintaining all banking related services for the City. Since 1997, the Treasury Division embarked on a program to allow for payment of services through the use of credit cards. A component of banking is payment processing. Currently customers are able to use a credit card to pay City of Santa Ana fees or charges. Acceptance of a credit card as a form of payment involves utilizing a merchant service company. TransFirst presents MasterCard and Visa transactions on behalf of the City for all credit card payments made at City facilities including City Hall, kiosk, Police Department, and Parks Recreation and Community Services. On March 12, 2012, City Council authorized the moratorium of the credit card processing fee in order to attract more on -line payments by customers. In March 2013, the Treasury Division negotiated the reduction of the TransFirst, discount fee from 1.5% - 0% resulting in a savings of over $55,000 which has helped offset City costs. TransFirst has agreed to maintain the reduced rate for the term of this agreement. Given the vendors past performance and cost savings associated with the removal of the discount fee, staff recommends retaining TransFirst for merchant services. At the City Council meeting held on January 7, 2014, the FMSA Treasury Division agendized a renewal agreement with TransFirst for City Council consideration. At the meeting, the City Council approved and authorized the renewal of the agreement for a two year term with TransFirst. After further discussion with the City Attorney's Office, it was determined that the merchant card processing agreement should be updated and approved in conjunction with the consultant agreement. As such, staff is resubmitting the consultant and merchant card processing agreements for City Council approval. 25C -1 Agreement for Merchant Services with TransFirst LLC March 18, 2014 Page 2 FISCAL IMPACT Funds are budgeted and available in various department accounts (various - 62300). �S�m A �:� z Francisco Gutierrez Executive Director Finance and Management Services Agency Jvl� cd /mm Exhibit A Consultant Agreement Exhibit B Merchant Card Processing Agreement 25C -2 EXHIBTC A 8 25C -3 CONSULTANT AGREEMENT THIS AGREEMF.,NT, dated as of this _ day of _ 2014 by and between TransFirst, LLC, (hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). The parties acknowledge the existence of that Consulting Agreement between the City and PRI dated March 1, 2004 (with all amendments, the "Prior Agreement "). TransFirst assumed the Prior Agreement through its acquisition of PRI. With the execution of this Consulting Agreement the parties agree the Prior Agreement shall terminate and this Consulting Agreement shall supersede the Prior Agreement in its entirety. RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of payment processing. B. The City acknowledges that it has received prior payment processing services from Consultant prior to the date of this Agreement pursuant to the Prior Agreement and intends this Agreement to cover payment for prior unpaid services commencing as of October 1, 2013 and to cover payment processing services going forward. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. The parties agree this Consulting Agreement and all attachments shall govern the merchant accounts in existence as of the date of execution (such accounts include: 41399800818517; 41399800822550 ;41399800818822;41399800818830; 41399801.138592) and any new merchant accounts that may be established in the future. E. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. F. The City acknowledges and agrees that in the event of a conflict or inconsistency between the terms and conditions of this Agreement and the Merchant Card Processing Agreement, the terms of the Merchant Card Processing Agreement shall control. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 25C -4 1. SCOPE OF SERVICES Consultant shall perform credit card processing services according to the rates set forth in Exhibit A and in accordance with the terms and conditions set forth in the Merchant Card Processing Agreement attached to this Agreement as Exhibit S. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A and in the Merchant Card Processing Agreement. The total sum to be expended under this Agreement shall not exceed $ 70,000.00 annually during the term of this Agreement. For purposes of computing the 12 -month period, the City acknowledges invoices for services rendered from October 1, 2013 . through the effective date of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on September 30, 2015, unless terminated earlier in accordance with Section 12, below, or pursuant to the Merchant Card Processing Agreement. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. WAIVED 25C -5 b. Business automobile liability insurance. WAIVED c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. b. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential. Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 25C -6 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Christine Duarte, Treasury Manager City of Santa Ana 20 Civic Center Plaza (M14) P.O. Box 1968 Santa Ana, CA 92702 -1968 Fax 714 - 647 -5304 Email: cduarte c�snnta- ana.gi g To Consultant: TransFirst LLC 12202 Airport Way, Suite 100 Broomfield, CO 80021 (631) 840 -6912 Attn: Peter Lucatuorto With copy to: TransFirst Legal Department 5400 LBJ Freeway, Suite 900 Dallas, Tx 75240 25C -7 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement, in conjunction with the attached Exhibits A and B, represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties, including the Prior Agreement. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail except over the Merchant Card Processing Agreement. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. 25C -8 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in comiection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incotporated as if frilly set forth in the body of this Agreement. [signatures follow] 25C -9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID CAVAZOS Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney _ n By: Joss Assistant City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT Francisco Gutierrez Executive Director of Finance and Management Services (NAME) (TITLE) Employer ID # or Individual SS # 7 25C -10 EXHIBIT B 25C -11 MERCHANT CARD PROCESSING AGREEMEti r This Merchant Card Processing Agreement ( "MPA ") is for merchant card payment processing services among the Merchant that signed the Application for Merchant Card Processing ( "Merchant Application'), the Merchant Bank, and the Processor The Merchant Application and the MPA are hereinafter collectively referred to as the "Merchant Agreement." The Processor and the Merchant Bank are hereinafter collectively referred to as the "Bank". Subject to the requirements of the Operating Rules, Processor and Merchant Bank reserve the right to allocate Bank's duties and obligations amongst themselves as they deem appropriate in their sole discretion, and Merchant Bank or Prceessor may jointly or individually assert or exercise any rights or remedies provided to Bank hereunder. If elected by Merchant on the Merchant Application, Processor will settle American ExpressO Card and DiscoverTP Network transactions in accordance with the terms set tomb in the Merchant Application and in doing so, Processor does not represent or indicate in any way that Merchant frank sponsors Processor into the American Express Network and Discover Network. Merchant Bank does not sponsor Processor into the American Express Network and Discover Network, is not providing or agreeing to provide Merchant any services hereunder with respect to American Express Card and Discover Network. Card transactions, does not determine or approve or agree upon any fees, charges, pricing, or any other terms and conditions, relating to American Express Card and Discover Network Card transactions, and has no responsibility or liability to Merchant for American Express Card and Discover Network Card transactions. Nor does Merchant Bank provide or agree to provide Merchant any services hereunder or have any responsibility or liability to Merchant with respect to any PIN -based debit or stored valneor electronic benefit transfer transactions (except only to the extent, if any, required under Visa's or MaslerCards Operating Rules or mandatory provisions of applicable law), or any JCB, Carte Blanche, or other Card type transactions (ether than Visa and MasterCard Credit and non -PIN based debit /stored value /electronic benefit transactions, including any such transactions made with Diner's international Cards which also carry the MasterCard Mark and am processed as MasterCard transactions), any CrmsCheck or other Check Services transactions, merchant gift or loyalty card transactions, or any other services specified in the Merchant Application as covered in whole or in part by this Agreement but as not being provided by Merchant Bank, To the extent applicable to American Express Card or American Express Network transactions and Discover Network Cards or Discover Network Card transactions, or to any of the other types of Cards, transactions or services referred to above or in the Merchant Application as not being provided by Merchant Bank, any reference herein or in any of the other doctuments constituting part of the "Merchant Agreement" (as defined below) to the forms "Bank" or "Merchant Bank" (except only to the extant the reference constitutes a complete disclaimer of responsibility or liability on the part of Bank or Merchant Bonk, or constitutes an obligation on the part of Merchant to indemnify, defend or hold. harmless Bank or Merchant Bank from or against any responsibility or liability) means Processor only. 'The appendices, addenda, schedules, Operating Guide and Fee Schedule that accompany this Merchant Card Processing Agreement, as amended from time 'to time as provided herein, are part of the terms and conditions of ibis Merchant Agreement, as are the Merchant Application and the Operating Rules, and are hereinafter individually and collectively referred to as the "Merchant Agreement" Capitalized terms used is this Merchant Agreement which are not defined herein shall have the meaning given to them in the Operating Guide, which can be fond at bent:// www .transfirst.mm /dncumenls.html, and which is incorporated by reference into this Agreement and may he amended from time to time try Dank upon notice to Merchant. According to the processing services selected by Merchant on the Merchant Application and in accordance with the terms of dais Merchant Agreement and applicable Operating Rules, Merchant agrees to participate in the Bank's Card processing program by honoring Cards in accordance with this Merchant Agreement; and to submit Transaction Receipts, Credit Transaation Receipts and other electronic door to Bank for the Card Program services provided by Bank, With respect to Visa Transactions: Merchant Bank is responsible for providing settlement funds directly Yo Merchant, and Processor shall not have access to or hold settlement funds. With respect to MasterCard Transactions: a) For purposes of the Merchant Agreement and perl'omtance of the Merchant Agreement by Processor, (q Pmecasor is the exclusive agent of Merchant Bank; (ii) Merchant Bank is at all times and entirely responsible for, and in control of, Processor's performance; and (iii) Merchant Bank must approve, in advance, tiny fee to or obligation of lire Merchant arising from or related to performance of the Merchant Agreement. b) The Merchant Agreement is not effective and may not be modified in any respect without the express written consent of Merchant Bank. c) Processor may not have access, directly or indirectly, to any account for funds or funds due to a Merchant and/or funds withudd from a Merchant for Chargebacks arising from, or related to, performance of the Mcrchant Agreement Merchant Bank may not assign or otherwise transfer an obligation to pay or reimburse a Merchant arising from, or related to, performance of the Merchant Agreement to Processor. d) Processor may not subcontract, sublicense, assign, license, franchise, or in any manner extend or transfer to any third party, any right or obligation of Processor set fords in the Merchant Agreement. 1. MERCHANT'S APPLICATION AND INFORMATION. By completing the Merchant Application, Merchant applies for the Card Program services covered by the Merchant Application and this Merchant Agreement. In their sole and absolute discretion, Processor and/or Merchant Bank may accept or reject Merchant's Merchant Application. Merchant may present Transactions to Bank only for the activities and in the volumes described on the Merchant Application, including the percentage of Mail/Plnone Order and Electronic Commerce Transactions. Presentation of the first Tmnsaction, including any test Transaction, by Merchant to Bank signifies Merchant's acceptance and agreement to be bound by this Merchant Agreement. 2. MERCHANT'S GENERAL DUTIES. 2.1 General. Merchant will comply with this Merchant Agreement (including the terms of the Operating Guide) for submitting and processing Transactions with Bank Bank is responsible to Merchant fur processing Transactions under the Operating Rules for the Cad Program services to which Merchant subscribes, which may vary among Card types. 2.2 Merchant's Responsibility for Acts of Others. Merchant, and not Bank, is responsible for any advice from, amts of, as well as emissions, acts of fraud or acts of misconduct by Merchant's employees, processors, consultants, advisors, contractors, Merchant Servicers, Agents, officers and directors. Merchant, and not Bank, is responsible for the use, unauthorized use or misuse of Merchant's equipment, POS Equipment. or software. 2.3 Electronic and Paperless Notices and Disclosures. Merchant consents to receiving electronically rather than in paper form all written notices, disclosures and other documents (" documents") which are to be provided by Bank to Merchant under this Merchant Agreement. Bank will notify Merchant that a Document is available at Processor's web site with a link to that specific page of the web site containing the Document. Merchant agrees that such notification may be sent to Merchant at the a -mail address provided as part of the Merchant Applicaion. By Merchant affirmatively checking the box to consent to receive paperless delivery of IRS Notices on the Merchant Application, Merchant acknowledges that it has reviewed and received the Consent to Paperless Delivery of IRS Notices, located at htto:/ twww .trmtsfirst.com /documents.html and that Merchant consents and agrees to receive IRS notifications by paperless delivery. Merchant understands and acknowledges that access to the Internet and e-mail are required lot Merchant to access Documents electronically or by paperless delivery and Merchant confirms that Merchant has such access- Merchant understands that there are costs related to accessing Documents electronically or by paperless delivery and Merchant agrees that Merchant is responsible for these related access costs. At any time, and without giving Merchant advance notice, Merchant Bank and/or Processor may elect not to send a Document electronically or by paperless delivery, in which case a paper copy of the Document will be sent to Merchant at the Merchant's last known address, as provided by Merchant, or such Document shall otherwise be provided as provided for herein 3, PROCEDURES FOR CARDTRANSACTIONS. 3.1 Honoring Cards. (a) Limited Acceptance. If appropriately indicated herein, Merchant shall be a Limited Acceptance Merchant, which means that Merchant has elected to accept only certain Visa and MasterCard card types as indicated on the Merchant Application, or via later notification The Visa or MasterCard Credit acceptance option on the Merchant Application refers to Visa Credit and Business transactions, and is what MasterCard refers to as "Other Card" transactions. Notwithstanding anything to the contrary in tare Application, Merchant can elect (i) to accept only Visa or MasterCard non -PIN based debalstored value/eleetronic benefit transactions (sometimes referred to as "signature debit' transactions, whether or not an actual signature is required), or (it) to accept only Visa or MasterCard Credit transactions, or (iii) to accept all Visa or MasterCard Credit and signature debit transactions; provided, however, that a Merchant who accepts any Visa or MasterCard Card types must accept all valid Visa or MasterCard Card types issued by a non -U.S. issuer Merchant is not required to accept Card brands other than Visa or MasterCard in order to accept Visa or MasterCard Cards (except that transactions using Diner's International Cards which also carry the MasterCard Mark must be accepted if Merchant accepts MasterCard Card transactions of the same type). Bank has no obligation Other than those expressly provided under the Operating Rules and applicable law as they may relate to Limited Acceptance. Bank's obligations do not include policing card types at the point of sale. Merchant will be solely responsible for the implementation of its decision for limited acceptance including but no[ limited to policing the card type($) of transactions at the point of sale submitted for processing by Bank. Should Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Bank may process that transaction and Merchant will pay the applicable fees, charges, and assessments associated with that transaction. Merchant will comply with any applicable laws and Operating Rides for the card type processed (b) Discover. If Merchant has chosen to accept Discover Card Transactions in the Merchant Application, Merchant must accept Discover Cards at all Merchant establishments, including in payment for purchases of goods and services, for charitable contributions and for Cash Over fraasactions (subject to the terms of the Operating Guide), when properly presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each Discover Card Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder A. Merchant may issue a Cash Over (subject to the terns of the Operating Guide) in connection with a Discover Card Transaction The Merchant must deliver a single Authorization Request for the aggregate total of the goods/services purchase amount and the Cash Over amount. In addition, the Transaction Receipt must include both the purchase amount and the Cash Over amount. (e) PayPalrsr. If Merchant ties chosen to accept PayPal Payment Cud Transactions in the Merchant Application, Merchant must accept Paylsai Payment Cards at Page I of'/ (MIVMERAGMf vI0.10I3 25C -12 all Merchant establishments, including in payment for purchases of goods and services and for charitable contributions when properly presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each PayPai Card Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder. dB American Express. If Merchant has chosen to accept American Express@ Cards in the Merchant Application, Merchant must accept American Express Cards as payment for goods and services (other than those goods and services prohibited under Section 7 of the Operating Guide) sold, or (if applicable) for charitable contributions made, at all of its establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant's establishments under the Merchant Agreement to the event Merchant's American Express annual charge volume exceeds &1,000,000 in is rolling twelve month period or is greater than $100,000 in any three consecutive months, Merchant will be considered a High CV Merchant by American Express and will be required to enter into a direct merchant card acceptance agreement with American Express, Upon any conversion to a direct agreement with American Express, Merchant will be bound by American Express' then current Card Acceptance Agreement and to any pricing and fees set by American Express. Merchant hits the right to opt -out of acceptance of American Express Cards at any time without affecting Merchant's rights to accept other card types, If Merchant elects to receive messages from American Express regarding products, services and resources available to it, as indicated on the Merchant Application, Merchant agrees messages maybe sent by American Express to the phone numbers, fax numbers or email addresses provided by Merchant, if a wireless number is provided, Merchant agrees communications may be sent. via SMS or text in addition to automated calls. Merchant may opt out of receiving messages by contacting Processor, 3.2 Operating Procedures for Transactions. In accepting Cards for the purchase of Merchant's goods and services, Merchant shall comply with the requirements of this Merchant Agreement, including but not limited to the Operating Rules and the Operating Guide, as the same are revised train time to time. 33 Submission of valid Transactions. (a) Merchant will submit to Batik a Transaction only if tire Transaction is made or approved by the Cardholder who is issued the Card used for die T'mnsactinn. Merchant will not submit directly or indirectly (i) any Transaction that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder, (ii) any Transaction that results from a transaction outside of Merchant's normal course of business, as described on the Merchant Application; or (iii) any Transaction containing the account of a Card issued to Merchant or any account numbers issued to Merchant's business owners, family members and principals for Transactions that do not represent a purchase of goods or services from Merchant or a related credit. (b) If at any time the volume of Transactions in the Card - Absent Environment substantially exceeds the projected annual volume stated on the Application, or if at any time Bank suspects fraud, money laundering or violations of the Operating Rules, Bank may, in its sole and absolute discretion and in addition to other remedies that the Bank may have: (i) refuse to process the excessive or suspect Transactions; (it) process the Transactions and retain the funds received from processing until such time as the excess or suspect Transactions are found to be valid or invalid and processed in accordance with the Operating Rules; (in) suspend processing Card - Absent Environment Transactions and/or terminate the Agreement; or lie) amend the Agreement to protect the interests of Bank 34 Payments to Merchant for Valid Transactions. (a) Bank will provide provisional credit to Merchant for each valid Transaction which Merchant submits to Bank by crediting Merchant's Settlement Account, provided Bank has received settlement for the valid Transaction through the Interchange procedures specified by the Card Association applicable to the Card used for the Transaction (Bank does not provide payment for all Card types for which Authorization services are provided). Bank is not obligated to provide provisional credit to Merchant for Transactions submitted that are not valid Transactions, and may suspend or discontinue any provisional credit in Merchant Bank's anct Processor's sole and absolute discretion, including for any reason that would justify, termination of this Merchant Agreement. Each provisional credit from Bank to Merchant wilt he subject to adjustment, including revocation, upon Bank's further review and verification Provisional Credit to Merchant for a Transaction disputed by a Cardholder for any reason is net final. (b) Bank may deduct front any payment to Merchant the amount of any Credit Transaction Receipt processed for Merchant, any Chmgeback to Merchant, any amount to be deposited in the Reserve Account and any Processing Fees and amounts suffcuvrd to reimburse Bank for the amount of any Card Association fates or charges due from Merchant. Merchant must immediately pay Bank the amount by which a Credit Transaction Receipt processed on any clay exceeds valid Transactions submitted on that day. Without (uniting Bank's remedies, Bank may obtain the amount due by deducting it from the Settlement Account, Reserve Account or other accounts of or funds due Merchant. (c) Merchant acknowledges that all payments and credits provided to Merchant are provisional and subject to suspension, to Chargebacks and to adjustments in accordance with this Merchant Agreement and the Operating Rules and the Operating Guide, 15 Retrieval Requests. If Merchant deposits Transactions with Bank through magnetic tape, electronic transmission, or electronic data capture terminal, upon the request of a Card Association or Bank. Merchant shall respond to all Retrieval Requests within the time frames specified in the applicable Operating Rules If Merchant does not respond or responds late to a Retrieval Request, Merchant may be without recourse as Chargebacks for "non receipt of requested item" in most cases, cannot be reversed. 3.6 Petuipntent; Supplies; I)isphnys. (a) At Merchant's request, Processor will supply Merchant with quint -of sale equipment ( "POS Equipment ") that Merchant may need to process and submit Transactions. Processor will use good faith efforts to program the POS Equipment to operate at the Merchant Outlets in compliance with the Operating Rules; however, Processor makes no representations or warranties that Processor's programming of the POS Equipment famished by Processor will operate in compliance with the Operating Rules. if Processor supplies Merchant with POS Equipment or other equipment, then Merchant must return such equipment upon termination of this Agreement. It is understood by the parties that if Processor has not provided free use equipment, sections 3.6(a) -(d) do not apply. (b) Merchant acknowledges and understands that POS equipment may be supplied to Merchant that is the property of the Processor and is being provided to the Merchant for true use subject M the following conditions and requirements: (i) Merchant shall be liable for a $495 Pee for non - retum of Processor supplied POS Equipment if the Merchant terminates or ceases processing under the terms of this Agreement before the expiration of the initial or renewal term of this Merchant Agreement and fails to return the POS Equipment within ten days of termination or of ceasing processing. (it) Merchant wit] be liable for any damages to the POS Equipment from the dense or negligent use of the POS Equipment; (iii) Merchant will be liable for any reasonable monthly fee as determined by Processor for paper or other supplies provided by Processor for use with the POS Equipment' (iv) Processor, at its absolute and sole discretion, may allow for one terminal exchange at no charge, but may charge additional fees for subsequent exchanges; and, (v) Ttie POS Equipment that is the property of Processor is provided "AS -IS" and that Processor makes no warranty as to this POS Equipment's fitness loosely particular purpose (or any other Warranty) and disclaims day liability resulting from the POS Equipment or Merchant's use of the POS Equipment. (e) All Processor and third party POS Equipment and services provided or procured by Processor under this Merchant Agreement are provided "A&IS," but Processor will, at Merchant's expense, use reasonable commercial efforts to assist Merchant in culturing any wanunty offered by the third party supplier of such POS Equipment or services. (d) Merchant acknowledges that Processor or a third party is supplying the POS Equipment and that the Merchant Bank shall have no responsibility or liability for the POS Equipment supplied to Merchant. (e) Merchant will use only the forms for Transactions and electronic processing formals provided or approved in advance by Bank. Bank may change the farms from time to time, and, upon notification, Merchant will comply with any changes. Merchant will use Transaction forms or materials provided by Bank only for Transactions which Merchant submits to Bank. (f) Merchant may not (i) indicate or imply drat the Card Associations or Bank endorses any Merchant goods or services, (ii) refer to a Card Association or Bank in stating eligibility for Merchant's products, services or membership, or (iii) use any marks, symbols or logos owned by any Card Association or Bank for any purpose other than those permitted in the Operating Rules artful Operating Guide. 4. NIERCHANTB WARRANTIES. Upon signing the Merchant Application, and each time Merchant submits a'I'continuum, Merchant represents and warrants that: 4.1 Merchant has abided by this Merchant Agreement, and all applicable laws and Operating Rules; 4.2 Each statement made on the Merchant Application was true as of the date Merchant signed the Merchant Application agreeing to be bound by this Merchant Agreement 4.3 Thcre have been no materially adverse changes in information provided in the Merchant Application or in Merchant's financial condition, or management; 4.4 Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Merchant's business or the product lines that Merchant sells not previously disclnse l; 4.5 The `transaction is genuine and arises from a bona Fide sale of merchandise or services by Merchant, represents a valid obligation for the amount shown on the Transaction Receipt and does not involve the use of ilia Card for any other purpose; 4,6 Merchant has title to the Transaction and Transaction Receipt, there am no liens or other encumbrances on it, and Merchant has the authority to convey the Transaction for processing; 43 'Fire Transaction is not subject to any dispute, set-off or counterclaim; 4.8 'fit- Transaction has not been previously presented for processing unless allowed by the Operating Rules or the Operating Guide; 4.9 Each statement on the Transaction Receipt is true, and Merchant has no knowledge of facts that would impair the validity or coilectabllity of the amount of the Transaction; 4.10 The person who executes the Merchant Application on behalf of Merchant has the full power and authority to execute the Merchant Application and to enter into this Iclercham Agreement; 411 This Merchant Agreement is the legal, valid, and binding obligation of the Merchant enforceable against the Merchant in accordance with its terms; 412 Merchant shall submit Transactions only in accordance with the information contained in the Merchant Application and this Merchant Agreement; 413 Merchant has die power and authority to authorize the automatic Ponds transfer provided for in this Merchant Agrccmcnl; Page 2 tf7 25C -13 UNIVkIERAGMI 10.1013 4.14 The Settlement Account is owned and controlled by the Merchant and is a valid account for processing debit and credit transactions tinder this Merchant Agreement; 4.15 Merchant is not (i) a Sanctioned Person, (ii) located in or operating under a license issued by a jurisdiction whose government has been identified by die U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 24050), (iii) 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 or which ilia U.S. is a member, or (iv) 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; and 4.16 That Merchant will immediately notify Merchant Bank and Processor of any material changes to any information provided herein including but not limited to a. change in Merchant's legal entity, location, business type, or die types of goods and services offered for sale by Merchant. 5. CONFIDENTIALITY; DATA SECURITY. 5.1 Transaction Receipts. Merchant will retain in a secure and confidential manner original or complete and legible copies of each Transaction Receipt, and each Credit Transaction Receipt raptured to be provided to Cardholders, for at least two years or longer if required by law or the Operating Rules. Merchant shall render all materials actua rung Cardholder Account Numbers unreadable prior to discarding. 52 Storage. Merchant will store Transaction Receipts and Credit 'i'ransnntion Receipts in an area limited to selected personnel, and when record- retention requirements have been met. Merchant will destroy the records so that the same are rendered unreadable. 5.3 Merchant Servicers and Agents. Merchant must notify Bank and receive Bank's approval prior in engaging any Merchant Servicer or Agent in connection with Merchant's acceptance of Cards or the submission of Transactions to Bank. Merchant shall provide Merchant Bank and Processor at least sixty days advance written notice of Merchant's election to use a Merchant Servicer or Agent. Merchant Bank and/or Processor may 'individually approve or deny the use of a Merchant Servicer or Agent in their sole and absolute discretion and at any time. If a Merchant Servicer or Agent is required to certify, register, or set in any fashion pursuant to the Operating Rules, Merchant shall cause such Merchant Servicer or Agent to cooperate with Merchant Bank in completing any steps required for registration and/or certification and/or action. Merchant is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration and/or certification and/or action. Bank shall in no event be liable to Merchant or any third only for any actions or inactions of any Merchant Servicer or Agent used by Merchant, and Merchant hereby expressly assumes all such liability. Merchant will immediately notify Bank if Merchant decides to use electronic authorization or data capture terminals provided by any entity other than Bank or its authorized designee ( "Third Party Terminals ") to process Transactions, including leasing a terminal from a third party. if Merchant elects to use 'third Party Terminals (a) the third party providing the terminals will be Merchant's Merchant Servicer in the delivery of Transactions to Bank; and (b) Merchant assumes full responsibility and liability for any failure of that third party to comply with the Operating Rules. applicable laws, rules or regulations or this Merchant Agreement Bank will not be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third party agent or a malfunction in a Third Party Terminal. The use of a Merchant Servicer or Agent or software or systems provided by a Merchant Servicer or Agent that has connectivity to the Internet poses an increased risk, and Merchant assumes all liability for such increased risks. If Merchant utilizes software or hardware with a connection to the Internet such hardware or software interacts in any capacity with the provision of services contemplated pursuant to this Merchant Agreement, Merchant is solely liable without limitation for any and all consequences of such interaction. 5.4 Security. Merchant agrees and shall ensure that Merchant Servicers and Agents wilized by Merchant provide the same levels of security as those required of Merchant, and that such Merchant Servicers and Agents transmit data in accordance with: (a) ilia required formats) of the Card Associations; (b) the Operating Rules; and (e) the requirements of Bank. Merchant must have a written contract between die Merchant and its Agent or between the Merchant and the Merchant Servicer that stipulates adherence to the provisions of such information security requirements- Merchant shall indemnily and hold Merchant Bank and Processor harmless against losses or damages arising from the acts or Omissions of Merchant Servicers or Agents engaged by Merchant. 5.5 Loss or Theft. Merchant most immediately notify Merchant Bank. and Processor of any suspected or confirmed loss or theft of materials or records that contain Cardholder Account Numbers or Card Transaction information. In the event of a suspected or confined loss or theft Merchant shall provide immediate access to all facilities, systems, procedures, equipment. and documents as may be deemed appropriate by Bank or its designated representatives for Inspection, audit, and copying as deemed appropriate by both Merchant Bank and Processor in their individual sole discretion. Merchant shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur. 5.6 Merchant autluirizes Bank to release its name and address to any third party whom the Bank determines needs to know such information in order for Back to perform the Card Program services under this Merchant Agreement and who has requested such information. 5.7 Merchant will not (a) provide Cao folder Account Numbers, personal Cardholder information or Transaction information to anyone except Back, the Card Associations, or Merchant's Merchant Servicers or Agents for the purpose of assisting Merchant in Completing Card Transactions, or as specifically required by law; (b) retain or store Card Magnetic Stripe, CVV, CVV2, CVC2 or CID data (including 'track Data) subsequent to Authorization for a Transaction; (c) soil, purchase, provide or exchange Card Account Number information to any third party without the Cardholder's consent, or to any entity other than Merchant's Merchant Serviccrs or Agents, Bank, the Card Associations, or in response to valid legal process or subpoena; or to) release any Cardholder information over the telephone tinder any circumstances. 5.8 Merchant may not in any event, including its failure, including bankruptcy, insolvency, or other suspension of business operations, sell, transfer, or disclose any materials that contain Cardhalder Account Numbers, personal information or Transaaion information to third parties. In the event that Merchant's business fails or ceases to exist, Merchant is required to mar m to Bank all such information or provide proof of destruction of this information to Bank. 5,9 Merchant agrees to establish security procedures to protect Cardholder information and comply with the Visa Cardholder Information Security Program (LISP), MasterCard's Site Data Protection (SDP) Program, Discover Information Security Compliance (DISC), American Express Dam Security Requirements, and the Payment Card Industry data security standards. The Card Associations or Barak, and the respective representatives, may inspect the premises of Merchant or any Merchant Servicer or Agent engaged by Merchant for compliance with security requirements. Merchant acknowledges that any failure to comply will) security requirements may result in the imposition of restrictions on Merchant or the permanent prohibition of Merchant's participation in Card acceptance programs by file Card Associations. Merchant shall indemnify and hold Bank harmless against any losses or damages arising from Merchant's failure to comply with security procedures mid any tosses or damages arising from or related to Merchant's acts or omissions that result in a branch of data security, including but not limited to Merchant's noti - participation in any breach security program Processor may offer. 5.10 Federal regulations enacted pursuant to the USA PATRIOT Act and other applicable laws require financial institutions with which the Processor has relationships to verify the identity of every person who seeks to open an account with it financial institution. As a result of Merchant's status as an account holder with Merchant Bank, Merchant shall provide documentary verification of Merchant's identity, such as a driver's license or passport for an individual and comfort copy of organization documents for an entity in manner acceptable to Bank. Bank reserves the right to verify Merchant's identity through other non- documentary methods as Bank deems appropriate in its sole discretion. Bank may retain a copy of any document it obtains to verify Merchant's identity with the financial institution. C OPERATING RULES. 6.1 Merchant must comply with the Operating Rules, as the same may be amended Bonn time to time. The Operating Rules may change with little or no advance notice to Merchant and Merchant will be bound by all such changes. if Merchant objects to any change fn the Operating Rules, it must immediately stop accepting new Transactions for Cards governed by the change. The Operating Rules will govern in the event that there is any inconsistency between this Merchant Agreement and the Operating Rules However, nothing in this Merchant Agreement shall be remained to impose on Merchant a requirement (including a requirement under the Operating Rules) which is prohibited by mandatory provisions of applicable law (i,e., where the applicability of such provisions of law to this Merchant Agreement, and ot'the law's prohibition to the particular requirement which otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by agreement), but the requirement hereunder shall be construed to continue in effect and to be imposed on Merchant in all respects and at all times to the fullest extent possible without violating the law's prohibition, with only those particular applications of the requirement which would violate the law's prohibition deemed severed from the provisions hereof 6.2 Operating Rules of the Debit Networks may differ among them with respect to the Transactions they allow. Bank, at its discretion, may require that lire most restrictive requirements of one Debit Network apply to all of Merchant's Orr -line Debit Card Transactions, regardless of Card type. 7. MERCHANT'S BUSINESS; OTHER PROCESSORS. 7.1 Compliance with Laws. Merchant will comply with all Requirements of Law and regulations, including but not limited to haws and regulations regarding anti -money laundering compliance, in completing Transactions, submitting them to Bank, performing its obligations under this Merchant Agreement, and otherwise conducting its business. 7.2 Change in Name or Business. Merchant will give Membant Bank and Processor at least thirty days' prior written notice before any change in Merchant's name or location, any change in ownership or management of Merchant's business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Cards, or any material change in information concerning Merchant' in the Merchant Application, and material change in the type or nature of the business carried out by Merchant or otherwise required to be provided to Bank. 7.3 Other Processors. To the extent permitted by applicable law, Merchant agrees that it will not participate in a Card Program with another financial institution or processor without Bank's written approval. 8. CREDIT RI; PORTS AND OTHER IN FORMATION, 8.1 Reports About Merchant. From time to time, Bank may obtain credit and other information on Merchant, owners and officers of Merchant, and any and all personal grammars of Merchant, from others (such as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish information on Merchant's relationship with Bank and Bank's experience with Merchant to others seeking the information. 8.2 Reports from Merchant. Merchant will provide Bank with updated business and Internet information concerning Merchant, including financial statements, tae returns, Page 3 of 7 UNIVMERAGMI'v 10.1017 25C -14 evidence of required licenses and other information and documents Bank may reasonably request from time to time. Merchant shall further provide Bank such information as it may request for the making of insurance claim, regulatory or other filings related to Merchant's activity pursuant to this Agreement. All material marked "confidential" which Bank receives from Merchant will be used only by Bank or Card Association in performing the Card Program services under this Merchant Agreement or related services find reporting. At any reasonable time, Bork, any Card Association or any other entity having carbon ty, ins the right to audit Merchant's records relating to this Merchant Agreement. Without limiting the generality of the foregoing, Merchant understands and agrees that if at the time of signing this Merchant Agreement Merchant is undergoing a forensic investigation, Merchant must notify Batik and fully cooperate with the Investigation unfit it is completed. 9. ASSIGNMENT; BANKRUPTCY. 9.1 Asaignment. This Merchant Agreement is binding upon the successors and assigns of Bank and Merchant. Merchant will not assign this Merchant Agreement to another entity without Bank's prior written consent and any purported assignment made without Bank's consent will be void. 9.2 Bankruptcy. (a) Merchant will notify Bank immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant Agreement constitutes an executory contract to extend credit or financial accommodations m defined in 1 I. II.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in the event of bankruptcy. Merchant and Bank agree that in the event of Merchant's hankruptcy, Bank shall be entitled to suspend further performance under this Merchant Agreement. (b) Merchant acknowledges and agrees that in the event of a bankruptcy proceeding, Merchant must establish a Reserve Account or maintain a previously established and then current Reserve Account in amounts required by Bank and in accordance with any Reserve Account provision specified in this Merchant Agreement. Bank will have the right to setoff against the Reserve Account for any and all obligations which Merchant may owe Bank, without regard as to whether the obligations relate to Transactions initiated or created before or after the tiling of the bankruptcy petition, 10. AMENDMENTS; WAIVERS. 10.1 Amendments. Unless otherwise provided for in this Merchant Agreement, Bank may amend this Merchant Agreement at any time by providing Merchant will, fifteen days' prior notice by: (a) sending Merchant written notice of such amendment, or (b) posting such amendment to the Processor web site and providing Merchant with electronic notice as provided in Section 23. The amendment will become effective unless Bank receives Merchant's notice terminating this Merchant Agreement before the effective date. Bank . may amend this Merchant Agreement upon less than fifteen days prior notice if Bank reasonably determines immediate modification is required by Requirements of Law, Operating Rules or any adverse change in Merchant's financial condition. Amendments submitted by Merchant will bind Bank only if in writing and approved and signed by Back's authorized officer. 10.2 Waivers. Bank's failure to enforce this Merchant Agreement will not waive Bank's rights under this Merchant Agreement. Waivers ofany provision of this Merchant Agreement must be in writing and signed by Bank. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver. 11. TERlvl;'rER1NL NATIOM 11.1 Term(Renewal. The initial train of this Merchant Agreement shall be for the term of three years (the "Initial Tenn ") commencing on the date Bank processes the first Transaction for Merchant (including, a test Transaction) and, with processing of the first transaction, the Merchant accepts the services ot'Processor and agrees to be bound by this Merchant Agreement and signifies Bank's approval of this Merchant Agreement. At the expiration of the Initial Term, this Merchant Agreement will automatically renew for successive one year periods (each a `Renewal Tenn" and collectively with the Initial'1`erm the "Term ") unbr s a party provides the other parties with notice of its intent not to renew this Merchant Agreement at least ninety days prior to the expiration of the then current term. I1.2 Termination. (a) lamination without Cause. Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement as to all Card types or individually specifics! Card types, without cause, upon thirty days advance written notice (b) Terminatit tin for .Cause by Bank. Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement in its sole and absolute discretion, effective Immediately, upon written, electronic or oral notice, except as otherwise stated in this Merchant Agreement, to Merchant if Merchant Bank or Processor reasonably determines that any of the following conditions exists: (i) Merchant has violated any provision of this Merchant Agreement (it) There is a material adverse change in Merchant's financial condition, material change in Merchant's processing activity, processing activity inconsistent with the Merchant Application, or Merchant Bank or Processor determines in its sole discretion that Merchant's processing activity could result in a loss to Bank. (iii) A petition in bankruptcy has been tiled by or against Merchant, the Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar ofiiefal is appointed for a substantial ponion of Merchant's business, there is a general assignment for the benefit creditors, or the business terminates. (iv) Any information which Merchant provided to Bank, including Merchant Application information, was false, incomplete or misleading when received, or has materially changed since Merchant provided such information (v) At any tune during the term of this Merchant Agreement, Merchant has had it monthly ndio of Chargebucks to Transactions exceeding one percent, or Chargeb:aks tare in excess of three percent army monthly dollar amount of['ransactions. (vt) There is an overdraft for three days or more in the Settlement Account, or overdrafts in the Settlement Account are otherwise excessive. (vii) Merchant or any of Merchant's officers or employees has been involved in processing Transactions with Bank or other parties arising front fraudulent or otherwise unauthorized transactions. (viii) Merchant is or will be unable or movilling to perform its obligations under this Merchant Agreement or any applicable laws. (ix) Merchant has failed to Puy Bank any amount when due. (x) Merchant has failed to promptly perform or discharge any obligation under this Merchant Agreement, the Settlement Account or the Reserve Account, (xi) Any of Merchant's representations or warranties made in connection with this Merchant Agreement was not true or accurate when given. (xii) Merchant has defaulted on any agreement it has with Bank. (xiii) Bank is served with legal process seeking to attach or garnish any of Merchant's funds or property in Bank's possession, and Merchant does not satisfy or appeal the legal process within fifteen days of the Bank being served. (xiv) The Operating Rules are amended in any way so that the continued existence of this Merchant Agreement would cause Bank to be in breach of such Operating Rules. (xv) Any Guaranty supporting Merchant's obligations is revoked, withdrawn or terminated or altered in any way, (xvi) Any governmental entity initiates proceedings against Merchant, or Bank reasonably believes that a governmental entity may do so. (xvii) If any, circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Association. (c) Tenninntionftn CamgbyMerchant. Merchant may terminate this Merchant Agreement in the event of a material breach of the terms of this Merchant Agreement by Bank, provided Merchant gives Bank written notice of any alleged breach and such breach remains uncured for a period of thirty days following receipt ofwrown notice by the Bonk. (d) PJa„mage_(or Early Terminal on. (i) Bank and Merchant acknowledge and agree that in addition to all other remedies available to Bank under this Merchant Agreement arm otherwise available in law or equity, if this Merchant Agreement is terminated prior to the expiration of the applicable Tern of the Merchant Agreement for any reason other than for a material, uncured breach by Bank, Merchant agrees to pay Bank damages (the "Damages ") determined by adding an account closure fair as follows: (1) $250 for Merchants with less than twelve months remaining from the date of termination to the end of the then current Term, or; (2) $500 for Merchants with more than twelve months remaining, or such portion or the foregoing as may be permitted by applicable law. (it) Merchant agrees that such Damages shall also be due to Bank if Merchant discontinues submitting Transactions for processing during the Tenn for a period of lonely (90) consecutive days, and is not designated on the Merchant Application, or by notice to Bank, as a seasonal merchant or as otherwise agreed to by Bank. (iii) Merchant acknowledges and agrees that the Damages are not a penalty but rather are a reasonable computation of the financial harm caused by the termination oftltis Merchant Agreement by the Merchant. (e) Merchant Bank's or Processor's rights of termination under this Merchant Agreement are cumulative, A specific right of termination shall not limit any other right of Bank to terminate this Merchant Agreement expressed elsewhere in this Merchant Agreement. Notice of termination may be given orally or In writing, if given orally, shall be confirmed in writing, except as otherwise stated in this Merchant Agreement. (f) Upon termination, Merchant's rights to complete 'transactions and submit them to Bank, and to use Transaction form or formats, promotional material and any other items provided by Bank, will cease. Termination of this Merchant Agreement will not terminae the rights and obligations of Merchant and Bank relating to acts or emissions occurring before termination, including for example, airy Processing Fees or other service fees awed to Bank, cry Transactions processed for Merchant by Bank (whether before or after termination), Merchant's Chargeback and indemnity obligations, and the Security Interest granted. to Bank in this Merchant Agreement. (g) It is understood that a file for terminated merchants referred to as "6[ATCB" is maintained by Card Associations containing the names of any business (and its principals) which have been terminated for certain reasons, including fraud, depositing excessive counterfeit paper, excessive unauthorized transactions, depositing paper for others (laundering), bankruptcy or branch of this Merchant Agreement Merchant acknowledges that Merebant Bank or Processor is required to report Merchant to the MATCH (and/or on [he Consortium Merchant Negative File (the CMNF) published by Discovere Network) if this Merchant Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Associations. Merchant agrees and consents to such meaning in the event of the termination of this Merchant Agreement for any of the foregoing reasons. (6) Sections 2.3, 3, 4, 5, 6, 7, 9.1, 10.2, 11, 12, 13, 14, 15, 16.3, 16.4 17, 18, 19, 20 and 22 will survive termination of this Merchant Agreement. page 4 of t 25C -15 UNIVMERAGMT v 10.1013 12.SE'IT'LEMENT ACCOUNT. 12.1 Settlement Acen int Required. Merchant must maintain a Settlement Account in Merchant's name in satisfactory condition at a depository institution under arrangements acceptable to Bank. The Settlement Account will be subject to the provisions Or Section 14 of this Merchant Agreement. 12.2 Minimum Balance. Merchant agrees to maintain a minimum balance Orlando in the Settlement Account as Bank may specify to Merchant in writing from time to time. 12.3 Provisional Credits. Subject to the terms and conditions of this Merchant Agreement, Bank agrees to provisionally credit Merchant for each Transaction that Bank nccepts from Merchant. Merchant agrees that Bank may charge the Settlement Account for the amount of any Transaction processed render this Merchant Agreement, or any agreement Bank may have with any Merchant Affiliate, that results in a Chargeback, or for any Credit Transaction Receipt or otter reimbursement or Processing Pees to which Bank may be waited 12.4 Audits and Adjustments. Merchant agrees that Bank may audit all Transaction calculations and that Bank shall have the right, without notice, to make withdrawals, deposits, or other adjustments to or from the Settlement Account for any deficiencies or overages. 125 Errors and Disputes. Bank shall presume that any amounts the Bank pays to or debits from Merchant are correct unless Merchant disputes these by sending Bank written notice within thirty days of the date of the applicable statement containing any disputed payments or debits. 12.6 POS Equipment. if Merchant chooses to rent or lease POS Equipment from Processor or utilizes software provided by Processor for use in processing Transactions, Merchant agrees to pay Processor: (a) a pre - determined monthly rental fee; (b) any initial upfront costs as required; and (c) all applicable taxes rot such POS Equipment or software utilization. 12.7 Settlement Account Closure. If the Settlement Account is closed, Bank or its designated representative may terminate this Merchant Agreement, effective immediately, upon written or oral notice (with written confirmation in the event of oral notice) unless Merchant opens another Settlement Account acceptable to Bank. Merchant may change the Settlement Account upon prior written approval by Bank, which approval will not be unreasonably widtheld. 12.8 ACII Authorization. Merchant authorizes Bank or its agents or designated representatives to butiate debit and credit entries and adjustments to the Settlement Account or the Reserve Account (described in Section 13 of this Merchant Agreement) through the ACH settlement process for amounts due under this Merchant Agreement. This authorization will remain in full fares and effect unit] termination of the Merchant Agreement and the full and final payment of of obligations of Merchant due under this Merchant Agreement. Merchant acknowledges and agrees that it has been provided with the ACH Terms and Conditions located at www .transfirstcom /doeuments.htnl and agrees to be bound by all applicable terms and provisions of the ACH 'Perris and Conditions, ACH Addendum, nil other ACH Rules and any other applicable association or rework rules and regulations, in effect from time to time. Merchant acknowledges and agrees that Bank will not be liable for any delays in receipt of finds, any failure by Merchant to receive funds, or errors fn debit or credit entries coastal by Merchant, or third panics, including but not limited to any Card Association or any financial irradiation. 13. ADDITIONAL COLLATERAL SECURITY; RESERVE ACCOUNT. As a condition for providing Card Program services, Merchant may be required to provide additional collateral security for Merchant's obligations hereunder, which additional collateral security stall be of a kind, and in amounts, satisfactory to Brunk in Bank's sole discretion, and which shall be in addition to all other collateral provided for in Section 14 hereof. Such additional collateral security may include, fur example, (a) a letter of credit, if issued in an amount and on terms acceptable to Bank by a letter of credit turning bank acceptable to Bank, or (b) the pledge to Bank of a certificate of deposit owned by Merchant in amount satisfactory to Bank and provided all agreements (including agreements of third patties) in form and substance satisfactory to Bank and all (flings and/or other actions necessary in order to perfect in Bank a continuing first priority security interest therein on terms acceptable to Bank, we entered into, made and /or taken as the case may be. Bank may require that all or any part of the additional collateral take the form of a Reserve Account, established as hereinafter set forth in this Section 13, at any time when (i) this Merchant Agreement, or the provision of Card Program services hereunder, shall have terminated for any reason or any party hereto shall have given notice of termination thereof, or (if) them shall have occurred an event which entitles Bank to terminate this Merchant Agreement or the provision of Card Program services hereunder or which, with the giving of notice and/or the passage of time would entitle Bank to terminate this Merchant Agreement or the provision of Card Program services hereunder, and Merchant has not provided alternative additional collateral security of a kind, and in amounts, satisfactory to Bank as set forth above In this Section, or (iii) nether (i) nor (it) above in this Section is applicable, but Bank has determined that additional collateral security is required, has requested that Merchant provide same, and Merchant has failed to provide alternative additional collateral security of a kind, and in amounts satisfactory to Bank as set forth above in this Section. Any Reserve Account that is established shall be subject to the terms and conditions ofSeolum 14 and all other terms and conditions ofthis Agreement relating to the "Reserve Account ". Whenever Bank requires that additional collateral security take the form of a Reserve Account, the following provisions of this Section 13 shall apply: 13.1 Reserve During Term of Merchant Agreement. (a) Merchant may be required to deposit, of Merchant Bank may deposit by deducting from any payment due to Merchant or from any funds in the Settlement Account or any other deposit account of Merchant, into an account maintained by Merchant Bank (m at another approved depository institution) (the "Reserve Account "), initially or at any time in the future as requested by Bank, sums sufficient to satisfy Merchant's current and/or future obligations as determined by Bank in Its sole and absolute discretion. (b) The Reserve Account will be separate from the Settlement Account. Merchant shall have no right of withdrawal from the Reserve Account. The Reserve Account shall be under rite sole control of Merchant Bank, and Processor shall not have access to or hold funds in the Reserve Account. Any and all earnings from deposits or file Merchant to the Reserve Account shall be the sole property of the Bank. 13.2 Reserve Account Deposits. (a) At any time in Bank's sole and absolute discretion, Bank may (i) designate the minimum balance required to be deposited in the Reserve Account, (ii) require that the amount on deposit in the Reserve Account be increased, (iii) require that the Merchant deposit, or Merchant Bank may deposit for Merchant into the Reserve Account a percentage of, or a fixed amount fain each Transaction processed, or (iv) otherwise determine the amount to be deposited in the Reserve Account. Bank at its sole and absolute discretion may require that each month Merchant deposit, or Merchant Bank may deposit by deducting from any payment due to Merchant or from any funds in the Settlement Account or any other deposit account of Merchant sums into the Reserve Account no later than the twentieth day of the month. Bank shall notify the Merchant as to the amount of the funds to be deposited each month (b) Merchant acknowledges and agrees that the Reserve Account may contain both funds deposited by the Merchant and funds of other merchants of the Bank. 133 Deductions from Reserve Account. If funds are not available is the Settlement Account, Bank without prior notice to Merchant may deduct from the Reserve Account any obligation of Merchant to Bank trader this Merchant Agreement, including all Processing Fees, Chmgebtmks, Credit Transaction Receipts, Damages, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any fines, penalty amounts and charges due the Card Associations. 13.4 Replenishment of Reserve Account Deficiencies. Whenever the balance in the Reserve Account is less than the minimum balance required, or is otherwise deficient, Merchant Bank Wray, without prior notice, deposit the deficiency into the Reserve Account by reducing any payment to Merchant required by this Merchant Agreement or deduct the deficiency from the Settlement Account or any other deposit account of Merchant with another depository institution (including accounts of general partners if Merchant is a partnership) and deposit it into the Reserve Account. Merchant authorizes deductions from its accounts by ACI I entry, sight draft, preauthorized check, reverse wire, or otherwise as Bank deems appropriate under the circumstances. In addition, Merchant will deposit any deficiency into the Reserve Account within one Business Day after receiving Bank's oral or written request. Without limiting Bank's remedies, Merchant's failure to deposit any deficiency on time will permit Bank, without advance notice, to suspend or cease Processing additional 'transaction Receipts and Credit Transaction Receipts. Bank will give Merchant written notice orally suspension or cessation of processing. 13.5 Additions to Reserve Account. If Bank has reason to believe that Merchant may be liable to customers or to Bank for Chargebacks exceeding the balance in the Reserve Account, Merchant Bank may: (a), immediately place in the Reserve Account payments due to Merchant and/or stop processing transactions for Merchant until such time as the extent of Merchant's obligations to Bank, or Merchant's liability for Chargebacks, or Merchant's liability to customes are known, and Bank no longer deems itself insecure, and/or (b) demand from Merchant an amount that in Bank's judgment is needed to ensure payment of Merchant's obligations and liabilities. Merchant's failure to pay any amount will permit Merchant Bank or Processor or its designated representative to terminate this Mercham Agreement immediately without advance notice. 13.6 Reserve Account After Merchant Agreement Terminates. Merchant Bank any continue to hold or deposit funds in the Reserve Account after termination of this Mercham Agreement, regardless of whether nomination is by Merchant or Bank Upon termination of the Merchant Agreement by Merchant or Bank, Bank may retain sufficient funds to satisfy any and all Processing Pees, Chargebacks, Credit Transaction Receipts, Damages, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any fines, penalty amounts and charges due the Card Associations. If no fiends have been deposited into the Reserve Account before termination, Bank, at Bank's option, may notify Merchant to deposit funds into the Reserve Account upon termination of this Merchant Agreement. All provisions which apply to a pre- termination Reserve Account will apply after termination, including replenishment of deficiencies. The funds will be held by Bank or its designated agent for a period of not less than one hundred eighty days from the date of the last Transaction processed under the Merchant Agreement, plus the period of any warranty, guarantee, and/or return policy an goods and/or services sold, Bank will return the balance in the Reserve Account to Merchant after Bonk reasonably determines that the risk of Chargebacks and other processing Fees has ended and after deducting all amounts that Merchant owes to Bank under this Merchant Agreement or any other agreement. 14. SECU RITY INTEREST. 14.1 Merchant's Grant of Security Interest. (a) To secure Merchant's performance of its obligations under this Merchant Agreement, and any other agreement with Bank, Merchant grants Bank a security interest in each Transaction and its proceeds, the Settlement Account, the Reserve Account and any other deposit account of Merchant with a financial institution, whether now existing or established in the future, and in the proceeds oral[ these accounts, any fonds due Merchant from Bank and any of Merchant's property held by Bank. Bank may enforce there security interests without notice or demand The security interests granted under this Merchant Agreement will continue after this Merchant Agreement terminates, until Mercham satisfies all its obligations to Bank Page 5 of 25C -16 UNnIVMERAGMT 00, 1013 (b) Furthermore, and with respect to any security interests granted Intent, Bank will have all rights afforded under the Uniform Commercial Code, as the same may, from tune to lime, be in effect in the State of Colorado; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code a in effect in a jurisdiction other than the State of Colorado, then Bank will have all rights afforded mndla the Uniform Commercial Code as in effect from Hine to time in such other jurisdiction for purposes of tire provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law. 14.2 Perfection of Security Interest. Upon request of Bank, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Bank under this Section 14. Merchant shall cooperate with Bank in obtaining any control agreement or similar agreement with a depository bank necessary to perfect the security interests granted herein. to addition, Merchant agrees that its signature on the Merchant Application will be considered Merchant's signature agreeing an any control agreement as defined in Article 9 of the Uniform Commercial Code among Merchant, Bank and any other financial institution under which Bank, Merchant and any other financial institution agree to the disposition of funds in the Settlement Account, tile Reserve Account or any other deposit account without further consent by Merchant. 15, CUSTOMER CLAIMS, To the extent that Bank has paid or may pay a Chargetrack or Credit Transaction Receipt, Merchant will be obligated to reimburse Bank for any sons Bank pays. If Merchant does not reimburse Bank, Bank will have all of the rights and remedies or Cardholders, including the Cardholders' rights under I I U.S.C. §507(a)(6). Bank may assert any claim on behalf of a Cardholder individually or on behalf of all Cardholders as a class. 16. PROCESSING FEES. lit Fee Schedule. Merchant will pay Processing Fees in the amount specified in the Fee Schedule attached to the Merchant Application or as otherwise provided for in this Merchant Agreement or an Addendum thereto. Bank may increase the processing Fees, including, without limitation, introducing new products or services, by giving Merchant fifteen days advance written notice effective for Transactions submitted on and after the effective date of the change. 16.2 Card Association Actions. Bank will not be required to provide the Merchant with fifteen days' notice of an increase in Processing Fees in the event that any Card Association, or any otherentily having such authority increases the Processing Fees and the effective date for implementation of the increase in the Processing Fees is less than fifteen days, In such cases, the Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise, to provide reasonable notification to Merchant. However, failure to provide advance notice Of the increase in Processing Fees will not affect Merchant's obligation to pay the increased Processing Fees. Tire increasers) in Processing Fees shall be effective on the date specified by Bank. 163 Government and Regulatory Actions, Bank will not be required to provide Merchant with fifteen days' notice for any increase in Processing Fees resulting front any fine, charge, fee or cost incurred in connection with any suite, federal or other regulatory action, change in laws or regulations or escheanment of Merchant's funds. Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise to provide reasonable notification to Merchant. However, failure to provide advance notice of the increase in Processing Fees as a result of any government or other regulatory actions will not affect Merchant's Obligation to pay the increased Processing Fees. The increase(s) in the Processing Fees shall be effective on the date specified by Bank. 16A Payment, Processing Fees and other service charges owed by Merchant to Bank may be deducted by Merchant Bank from amounts due Merchant, or from the Settlement Account or from the Reserve Account. Merchant will pay the amounts due by the next Business Day it'sufflcient finds are not available in the Settlement Account 17. INDEMNIFICATION; LIMI'T'ATION OF LIABILITY; WARRANTY. 17.1 Indemnification, Merchant agrees to indemnify Bank, including their respective officers, directors, employees, and agents against and to hold them harndess from any and all claims and demands of any party arising from or based upon any act or omission of Merchant, Merchant's employces, Merchant's designated representatives or agents, Merchant Services, or Merchant's Agents) in connection with or arising out of this Merchant Agreement, the duties to be performed by Memhant pursuant to this Merchant Agreement, any Transactions which Merchant submits to Bank, or Merchant's violation of the Operating Rules or any Requirements of Law. In the event that Bank shall be made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively "Actions ") commenced by any third party, Merchant shall protect and hold Bank harmless from and with respect to the Actions and shall pay all costs, expenses, and allomey's fees incurred or paid in connection with the Action, together with any judgments rendered. Merchant shall indemnify, defend, and hold harmless Bank for any hacking, fi filrmtion, or compromise of Merchant's systems or the system of Merchant, Merchant Services or Merchant's Agmn(a), designated representatives, ar other agents_ 171 Limitation of Liability. Bank will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, Merchant Servicer, Agents, third party suppliers of software, equipment or services; or, banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated and/or authorized. Bank will not be responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Bank. Bank undertakes no duties to Merchant other than the duties expressly provided for in this Merchant Agreement, and any and all other or additional duties that may he imposed open Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, Bank's cumulative liability to Merchant, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of $10,000 or, an amount equal to the aggregate of monthly net Processing Fees paid by Merchant in the three month period prior to the month that the incident giving rise to liability creation. IN NO EVENT SHALL. BANK BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUP'T'ION Olt LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR BANK. WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL. PURPOSE, BANK SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCIL)NTABILIIY OR FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT OF AN) INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WIIEIOUT LIMITING THE GENERALITY OF THE FOREGOING, BANK DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROH-FREE. 18, NOTICES. Each notice required by this Merchant Agreement will be in writing (hard copy or electronic), except as otherwise stated in this Merchant Agreement, and will be effective when delivered, (a) to Merchant Bonk at the address designated on the Merchant Application, and the return address on the Merchant's Card processing statements, (b) to Processor at the address designated on the Merchant Application and (c) to Merchant at Merchant's address to which Bank mails Merchant's statements or at the electronic mail address provided by Merchant in the Merchant Application, or at such other address as any party may provide by written notice to the other parties. Any address Merchant designates may also be the address to which Bank mails Merchant's statements. Delivery by facsimile transmission or electronic mail will be considered effective when the sender receives electronic confirmation of the transmission 19. COLORADO LAW; JURISDICTION; VENUE. Merchant's offer to enter into this Merchant Agreement is made in Boulder, Colorado; this Merchant Agreement shall be performed by Merchant in Boulder, Colorado and governed by Colorado law, excluding its conflict of laws rules. Merchant and Guarantor agree to bring any claim or action relating to this Merchant Agreement in binding arbitration as set forth in Section 202 below Any matters not otherwise subject to arbitration (such as, by way of example only, imuncl'ive reclier or claims to enforce an arbitration award), shall be brought in the state or federal courts located in Boulder County, Colorado. All parties irrevocably and unconditionally submit m thejurisdictlon of such courts with respect to any such action. In the event that Bank is required to resolve a dispute with Merchant that requires any action under this provision, Merchant hereby agrees and consents to receive service of process by certified mail, 20.ATTORNEY FEES; ARBITRATION. 201 Attorney Fees. Merchant and/or Guarantor will be liable for and will indemnify and reimburse Bank for all attorneys' fees and other costs and expenses paid or incurred by Bank in the enforcement of this Merchant Agreement or in matters relating to this Merchant Agreement, or arising from any breach by Merchant of this Merchant Agreement, or any other wrongdoing by Merchant or Guarantor. [n the event Bank must collect may amounts due from Merchant to Bank, Merchant will reimburse Bank for all fees and expenses incurred in such collection, plus reasonable administrative fees. 201 Arbitration. Merchant, Bank and any Guarantor will settle any dispute or controversy concerning or relating to this Merchant Agreement through binding arbitration before a single arbitrator, held of Denver or Boulder, Colorado in accordance with the provisions of the Federal Arbitration Act or any successor statute. In interpreting the Merchant Agreement, which the arbitrator must do, the arbitrator shall be limited from revising, altering, or amending any tern of the Merchant Agreement without the express written consent of the Back and the Merchant Claims hereunder will be arbitrated on an individual basis and, as such, the arbitrator's authority is limited to claims between the Bank and the Merchant (rand any Guarantor) alone. Merchant and Bank expressly agree that the arbitrator may not consolidate orjoin more than one person's or party's claims, and may not otherwise preside over any form of a consolidated or class proceeding or over claims brought in a purported representative capacity on behalf oftlre general public, other merchants or other persons or entities similarly started. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief air<[ only to the extent necessary to provide relief necessitated by that party's Individual claim(s). 2LFINAL AGREEMENT; EFFECTIVE DATE. This Merchant Agreement is the complete and final agreement between Merchant and Bank for the Card Program services covered by this Merchant Agreement and supersedes all prior or contemporaneous negotiations, stipulations or agreements. If any provision of this Merchant Agreement is invalid or unenforceable, the other provisions remain effective This Merchant Agreement becomes effective on the date Bank processes the first T1'antection for Merchant (including a test Transaction). 22. CON "IINUING GUARANTY. Page 6 nf7 25C -17 UNIVMERAGMT v10.1013 22.1 As a primary inducement to Bank to enter into this Merchuu Agreement, and to approve the Merchant Application of Merchant, the Gumantor(s), individually and severally, who signed on the Guarantor signature Ime(s) on the Merchant Application, agree to be bound by all terms and provisions of this Merchant Agreement to the same extent and in the same manner as Merchant, and unconditionally and irrevocably, personally guarantee the continuing fill and faithful performance and payment by Merchant of each and all of Merchant's duties and obligations to Bank under this Merchant Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals and Bank, as such agreements now exist or are amended from time to time, with or without notice to Guaranmr(s). 22.2 Merchant and Guammor(s) furdier agree to be bound by the terms and provisions of any Merchant Card ['recessing Agreement between Bank and any Affiliated- merchant, regardless of whether such agreement currently exists or is executed, amended or supplement at some future date. Merchant and Gumaalor(s) unconditionally and irrevocably guarantee the full payment and performance of each and all duties and obligations owed to Bank by Merchant Affiliate pursuant to any Merchant Card processing Agreement. 'fire previsions of Section 223 apply to the guarantee by Merchant and Guarantor(s) of the Merchant Affiliate's obligations to Bank under any Merchant Card Processing Agreement. 223 Guarantor(s) understands that Bank, without notice to Guarantors), may from time to time renew or extend the Merchant Agreement, modify rates, limits, charges and fees, or modify the amount or type of services provided to Merchant all of which may increase the Gasometer's obligations under this Guaranty. Guarantors) further understands that Bank may proceed directly against Guaranror(s) without first exhausting Bank's remedies against the Merchant, arty other person or entity responsible to Bank or any security held by Bank. This Guaranty is a continuing guaranty and will not be discharged or affected by the release or discharge of Merchant or the death of the Guararam(s). This Guaranty will bind all heirs, administrators, and representatives of the Guarantors) and may be enforced by or for the benefit of any successor of Bank. To the fullest extent permissible under applicable law, Guarantor(s) waives any and all rights of submgation, raimbursoment or indemnity derived from Merchant, all other rights and defenses available to Merchant, and all other rights and defenses available to Guamar xa). Page 1 of 25C -18 UNNMFRAGhfF v10,1013