Welcome to the Spark Pay Merchant Program. We are a web-based service providing our clients with business-purpose payment processing services (the "Spark Pay Merchant Program" or the "Merchant Program") which are enabled through certain mobile and other devices (a "Spark Pay Merchant Program-ready device"). This User Agreement (the "Agreement") comprises our detailed terms and conditions for the Spark Pay Merchant Program, and is between you ("You", "Your" or "Merchant") and Capital One, N.A. (inclusive of Capital One Merchant Services Corporation and also known as Capital One Bank, herein collectively referred to as "Capital One", "Our", "Us" or "We"). You should read and understand this Agreement as it is the legal contract that governs Your use of the Merchant Program.
This Agreement governs Your use of the Spark Pay Merchant Program, including all features and functionalities, our website, and all content and software associated with it. By using the Spark Pay Merchant Program, You accept and agree to be bound by this Agreement. If You do not agree to this Agreement, do not use the Spark Pay Merchant Program or our websites or any other websites affiliated with the Spark Pay Merchant Program. All references to You include You, in your personal capacity, and Your company or any other legal entity on whose behalf You are using the Spark Pay Merchant Program. By entering into this Agreement You are also agreeing to the Privacy Statement and E-sign Consent Policy, available at https://www.sparkpay.com/legal, and Security Statement, available at https://www.sparkpay.com/security, each of which is incorporated herein by reference. This Agreement also incorporates by reference the applicable pricing and ordering terms that have been provided to You online or offline, as applicable and at Our discretion, for the Spark Pay Merchant Program, which terms and conditions are subject to change in Our sole and absolute discretion from time to time.
Additionally, You acknowledge and agree that the Spark Pay Merchant Program is to be utilized solely for processing payment transactions directly related to a business purpose. Use of the Spark Pay Merchant Program to process person-to-person or any other consumer-purpose transaction, as determined within the sole and complete discretion of Capital One, may result in termination of service pursuant to Section 5.
This Agreement is an ongoing contract between You and Capital One and applies to Your use of the Spark Pay Merchant Program as made available in the U.S. These terms affect Your rights and You should read them carefully. Different terms, conditions and limitations may apply to the Spark Pay Merchant Program available in other jurisdictions.
2. Changes to Agreement
Capital One reserves the right, from time to time, with or without notice to You, to change this Agreement in Our sole and absolute discretion. The most current version of this Agreement can be reviewed by visiting our website and clicking on "Legal" located at the bottom of the pages of the Spark Pay Merchant Program website at https://www.sparkpay.com. The most current version of this Agreement will supersede all previous versions.
3. Membership and Approval Processes
The Spark Pay Merchant Program enables You to accept credit or debit (including pre-paid) card initiated payment network transactions strictly for business and not personal or other consumer purposes.
You will receive access to the Spark Pay Merchant Program after You register an account (as further described below, the "Spark Pay Merchant Program Account"). By registering a Spark Pay Merchant Program Account, You represent that You are at least 18 years of age. The requirements for registration of a Spark Pay Merchant Program Account are set forth on https://www.sparkpay.com. Note that Capital One only accepts a Taxpayer Identification Number or Social Security Number for Spark Pay Merchant Program Account registration. Capital One does not permit the use of an Individual Taxpayer Identification Number. Further, Capital One expressly reserves the right to change the requirements for Spark Pay Merchant Program Account registration at any time in its sole discretion.
You will be responsible for keeping information that You provide to us up-to-date. We periodically may obtain additional reports to determine whether You continue to meet the requirements for a Spark Pay Merchant Program Account and for the Spark Pay Merchant Program. We decide, in our discretion, whether to approve Your registration, and, if requested, You agree to provide Us with additional information.
You understand that by submitting an application or agreeing to the terms of the Spark Pay Merchant Program , You are providing "written instructions" to Capital One under the Fair Credit Reporting Act and authorizing Capital One to obtain Your personal credit bureau file in connection with this application or agreement to the terms of the Spark Pay Merchant Program, and further to set appropriate processing limits and/or enable review and performance of required or requested account maintenance functions.
Based on established practices, Capital One will not approve an application from a Merchant who conducts or otherwise represents a business listed in Section 8. below under "Prohibited Businesses". Capital One, inclusive of Capital One Merchant Services Corporation, reserves the right in its sole and complete discretion to request additional or enhanced information on any Merchant application involving, to any extent, a "High-Risk Businesses" listed in Section 8. below.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR APPLYING FOR OR OPENING A NEW ACCOUNT:
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for You: When You apply for or open an account, We will ask for your name, address, date of birth, and other information that will allow Us to identify You. We may also ask to see Your driver's license or other identifying documents.
4. Privacy and Communications Preferences
Privacy Issues. Any personally identifying information submitted through the Spark Pay Merchant Program is subject to Our Privacy Statement, which is available at https://www.sparkpay.com/legal, the terms of which are incorporated therein. Please review Our Privacy Statement to understand our practices. In addition to the terms of Our Privacy Statement, You understand that in order to be eligible to use the Spark Pay Merchant Program, Capital One may share information about You and Your Spark Pay Merchant Program Account with Our third party providers and affiliated companies. Capital One may contact and share information about You and Your application (including whether You are approved or declined), and Your Spark Pay Merchant Program Account with Your bank or financial institution.
Communications from Us. By agreeing to this Agreement, You are consenting to receive certain communications from Us. For example, Capital One may send You newsletters about new product or service features, special offers, promotional announcements and customer surveys via email or other methods. If You no longer want to receive the newsletters, other promotional announcements or non-transactional communications, You can unsubscribe to them as set forth immediately below. Service-related communications from Us will include notices about Your account (e.g., password change confirmation e-mails and other transactional information) and information concerning or related to the Spark Pay Merchant Program. These communications are part of Your relationship with Capital One and You receive them as part of the Spark Pay Merchant Program. You agree that any notice, agreements, disclosure or other communications that we send to You electronically will satisfy any legal communication requirements, including that such communications be in writing.
Your personal information is a big deal, and handling that information is something we take very seriously. We also think it's important you know exactly what information might be shared and who it could be shared with. Here's what you need to know:
Sharing your information within Capital One
We do share your credit information within our different Capital One companies. It's the info we get from credit bureaus and your account application. You can tell us not to share that information and "opt out".
You might also get offers from us for products and services we think you'll like because we also share personal information, like your income, credit score and how you use your account every day. You can ask us not to use your shared information for marketing and opt out of that, too. If you do opt out, we may still use that information to market products and services as permitted by law.
If you don't want us to share your credit information between our companies, or use your shared personal information for marketing, just give us a call at 1-888-817-2970. And be sure to tell us that you don't want us to share your credit information, use your personal information for marketing, or both. Whatever you decide, it applies to everyone who's on your account.
Sharing Your Information With Credit Bureaus And Others
We might report information about your account to the consumer credit bureaus. It includes things like the fact that you have an account, any late payments, missed payments or other defaults (if they happen). You'll see this on your credit report.
In case you're wondering, our different companies are those owned by Capital One Financial Corporation. They include companies that begin with "Capital One" or "Chevy Chase" as well as ShareBuilder, Onyx and Greenpoint. Individual company names might be different, like Capital One Bank (USA), National Association; Capital One, National Association; and ShareBuilder Advisors, LLC.
5. Right to Terminate
Your Termination. You can terminate this Agreement by closing Your Spark Pay Merchant Program Account at any time. If You close Your Spark Pay Merchant Program Account, all pending transactions will be cancelled. If we are holding any funds in custody for You at the time of closure, we will deduct any applicable Fees or other charges and pay You any remaining amounts, subject to expiration of any Reserve period (as defined below).
Our Termination. We reserve the right to terminate or restrict Your use of the Spark Pay Merchant Program, without notice, for any or no reason whatsoever. We can also suspend the Spark Pay Merchant Program and Your access to Your Spark Pay Merchant Program Account (including the funds in that account) if You (i) have breached any terms of this Agreement, (ii) pose an unacceptable credit risk or fraud risk to Us, (iii) provide us with any false, incomplete, misleading information or engage in any fraud or illegal conduct, or (iv) for any other reason that Capital One determines violates law or Capital One's policies.
6. After Termination
Once Your Spark Pay Merchant Program Account is terminated, (i) You will stop all use of the Spark Pay Merchant Program , (ii) You will continue to be bound by those clauses of this Agreement that survive termination, and (iii) all licenses provided to You under this Agreement will terminate. We will not be liable to You for any compensation, reimbursement or damages in connection with Your use of the Spark Pay Merchant Program or our termination of it.
7. Licenses to Software and Services
Access.Capital One software (the "Software") is developed by or for Capital One and is designed to enable access to the Spark Pay Merchant Program and the processing of payments through Spark Pay Merchant Program-ready devices. The Software may vary by device and medium, and functionalities may also differ between devices. For example, the Software may be embedded in a Spark Pay Merchant Program-ready device or we may offer the Software to be downloaded onto a device manufactured by other companies. WE DO NOT WARRANT THE PERFORMANCE OF THE SOFTWARE, INCLUDING ITS CONTINUING COMPATIBILITY WITH OUR SERVICE. Please refer to the Disclaimers of Warranties and Limitations of Liability set forth in this Agreement.
Third Party Devices. We do not warrant that the Software used and or licensed in connection with the Spark Pay Merchant Program will be compatible with other third party software nor do we warrant that operation of the Spark Pay Merchant Program and the associated Software will not damage or disrupt other software or hardware, whether or not supplied by Capital One in conjunction with the Spark Pay Merchant Program. In addition, Spark Pay Merchant Program-ready devices are manufactured and sold by entities other than Capital One. WE DO NOT TAKE RESPONSIBILITY OR OTHERWISE WARRANT THE PERFORMANCE OF THESE DEVICES, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE WITH THE SPARK PAY MERCHANT PROGRAM. By using the Spark Pay Merchant Program, You agree to look solely to the entity that manufactured and/or sold You the device for any issues related to the device and its compatibility with the Spark Pay Merchant Program. Any issues related to the Spark Pay Merchant Program, including any system requirements, are covered and limited by this Agreement. Please refer to the Disclaimers of Warranties and Limitations of Liability set forth in this Agreement.
Ownership. The Software contains material that is protected by copyright and other applicable intellectual property laws in the U.S. and other territories and by international treaty provisions. The Software and the Spark Pay Merchant Program are licensed, not sold or given, to You by Capital One for use only under the terms of this Agreement and all rights not specifically granted to You herein are reserved to Capital One (and to any third party with ownership rights in software and documentation used in the Software and Merchant Program.) You may not remove any proprietary notice of Capital One or any other party from any copy of the Software or documentation. This Agreement does not grant You any rights to trademarks or service marks of Capital One. The rights granted under the terms of this Agreement include any software upgrades that replace and/or supplement the original Software.
Grant of Limited License. Capital One grants You a non-exclusive, limited, personal and nontransferable license, subject to and conditioned on Your compliance with the restrictions set forth in this Agreement, to install and use the Software, in object code form only, provided to You by or on behalf of Capital One in connection with Your use of the Spark Pay Merchant Program . The license grant above includes the right to use documentation accompanying the Software for the sole purpose of using the Spark Pay Merchant Program and the right to make one (1) backup copy of the Software, provided that (i) the Software is installed on only Spark Pay Merchant Program-ready devices; (ii) the Software may NOT be modified; and (iii) all copyright notices are maintained on the Software.
Restrictions.As a condition of the limited license for the Software granted to You in this Agreement, except as and only to the extent expressly permitted in this Agreement or by applicable law which cannot be waived by this Agreement, You may NOT: (i) publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software or any part thereof; (ii) copy, decompile, reverse engineer, disassemble, translate, adapt or otherwise reduce the Software to human readable form; (iii) attempt to create the source code from the object code of the Software; (iv) take any action that will infringe on the intellectual property or other proprietary rights of Capital One or any of our third party software providers; and/or (v) sublicense or assign the Software.
Third Party Software. There are software programs contained within the Software that have been licensed to Capital One by third parties. The term "Software" as used herein shall include reference to such third party software except where the term Software refers expressly to the ownership or other specific rights of Capital One. The same terms and conditions, including all limitations and restrictions, set forth in this Agreement apply to each third party software program contained in the Software.
Exports. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was legally obtained or authorized by Capital One. In particular, but without limitation, the Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Software, You represent and warrant that You are not located in any such country or on any such list.
Government Use. The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. S2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. S12.212 or 48 C.F.R. S227.7202, as applicable. Consistent with 48 C.F.R. S12.212 or 48 C.F.R. S227.7202-1 through S227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
8. Important Limitations on Use of the Service; Undertakings by You
Your use of the Spark Pay Merchant Program must be in compliance with all applicable laws, statutes, rules, and regulations, as well as industry practices and procedures and only for lawful purposes. The Spark Pay Merchant Program is available only in the United States, and cannot be used outside of the United States. A Spark Pay Merchant Program Account may not be used to accept payments in any "Prohibited Business" category, as set forth below. Capital One may close at any time any Spark Pay Merchant Program Account that is determined to be associated with a Merchant conducting a Prohibited Business. Spark Pay may reserve or refund to the cardholder any funds processed by a Merchant determined to be conducting a prohibited or high-risk business type.
High-Risk Business types include, but are not limited to, the following:
- Buyers or Membership Clubs;
- Infomercial Sales;
- Prepaid Phone Cards or Telephone Services;
- Bankruptcy Attorneys;
- Furniture Stores; and
- Appliance Stores.
Prohibited Business types include, but are not limited to, the following:
- A business headquartered, principally operated, or principally based in a foreign country;
- A foreign bank correspondent account;
- A nongovernmental organization or charity that engages in the repeated or significant transfer of money in or out of a high risk foreign country;
- The sale or promotion of financial instruments, services, or investments designed for tax evasion;
- A foreign embassy or consulate other than those of the United States, Canada, or the United Kingdom;
- Accounts for businesses established with bearer shares (unnamed and unlisted shares evidencing equity ownership in a corporation);
- The distribution or wholesale of precious metals, stones, or jewels (except as carried out incidentally in the course of a retail jewelry store);
- Payday lending;
- Automobile title lending;
- Online gambling, including penny auctions and sports bedding;
- The sale or distribution of marijuana;
- The creation, sale, or exchange of virtual or digital currency;
- The operation of an escort service, strip club, regulated brothel or massage parlor;
- A lender offering consumer loans involving an Annual Percentage Rate above 36%;
- A courier of bulk cash;
- Money services business or pawnbroker;
- A debt collector;
- A dealer or broker in scrap metals;
- A dealer, broker, or seller of insurance policies to a third party unrelated to the insured;
- A business whose primary activity is the purchase of third party annuities or structured settlements;
- Credit repair organization;
- A business, organization, or sole proprietorship whose primary activity is telemarketing or whose primary sales are derived from telemarketing;
- A retail pharmacy that operates exclusively or principally over the Internet or MOTO;
- A firearm or ammunition business that operates exclusively or principally over the Internet or MOTO;
- A retail tobacco shop that operates exclusively or principally over the Internet or MOTO;
- A third party payment processor or Independent Sales Organization (ISO);
- A licensed casino, card club, or other gaming business;
- A business engaged in surface mining;
- Credit protection or identity theft services;
- Direct marketing or subscription services;
- Unauthorized multi-level marketing;
- Rebate businesses;
- Up-sell businesses;
- Personal enhancement products or services;
- Collection agencies;
- Airlines, cruise lines, travel agencies and tour operators;
- Timeshares, Timeshare re-sales and related marketing;
- Warranty companies;
- Drug paraphernalia;
- Occult materials or services, including psychic services;
- Hate or harmful products;
- Business types prohibited by the card brands;
- Businesses which sell products or services considered illegal to sell in the U.S.
Applicable Law; Network Rules. You must comply with all federal and state laws applicable to your business, as well as applicable bylaws, regulations, rules, industry practices and procedures of the Visa International, Inc. and MasterCard Worldwide, Inc. payment card networks (the "Network Rules" and the "Networks," respectively), as those Network Rules may be amended from time to time. Portions of the Networks Rules are available at www.visa.com and www.mastercard.com. In addition, You must comply with and adhere to the payment card industry ("PCI") data security standards ("DSS") in effect from time to time and shall implement and maintain appropriate measures designed to meet the objectives of PCI DSS.
Prohibited Transactions. We will not authorize or settle any transaction submitted in violation of this Agreement, applicable law, the Network Rules, or which exposes Us or others to fraud or criminal activity. You shall not do any of the following with respect to any transaction submitted for approval:
- Impose a surcharge on a cardholder who elects to use a card in lieu of payment by cash, check or other mode of payment unless We notify You as above to the extent otherwise or as otherwise permissible under applicable law or Network Rules;
- Establish a minimum dollar transaction amount on debit card transactions;
- Establish a minimum dollar transaction amount on credit card transactions, unless such amount does not exceed $10.00;
- Establish a maximum dollar transaction amount on any card transactions;
- Require a cardholder to provide personal information such as phone number, address, or a driver's license for identification as a condition for honoring a card (unless such card is not signed by the cardholder);
- Extend credit for or defer the time of payment of the total cash price in any transaction;
- Honor a card except in a transaction where a total cash price is due and payable;
- Make any special charge to or extract any special agreement or security from any cardholder in connection with any transaction;
- Transmit or accept for payment any sales draft for a transaction which was not originated as a result of a direct transaction between Merchant and a cardholder for the sale or lease of goods or the performance of services;
- Use Merchant's own card, or one to which Merchant has access, to process a transaction for the purpose of obtaining credit for Merchant's own benefit;
- Redeposit a previously charged back transaction, regardless of whether cardholder consents;
- Use two or more sales transaction receipts for a single transaction to avoid or circumvent authorization limits or monitoring programs;
- Process or return credit without sufficient balance in Merchant's Reserve account to fund the transaction;
- Attempt to process a transaction which violates the dollar limits established by Capital One as part of this Agreement, if any;
- Present any transaction representing the refinancing of an existing obligation of a cardholder including, but not limited to obligations (i) previously owed to Merchant, and/or (ii) representing the collection of any other pre-existing indebtedness, including collections of delinquent accounts on behalf of third parties;
- Process a transaction for the purpose of providing security or cash deposit for use in obtaining new or additional cards; or
- Attempt to process, either directly or indirectly, a restricted transaction, as that term is defined in Federal Reserve Regulation GG (12 CFR Part 233), including, but not limited to, those in which credit, electronic fund transfers, checks or drafts are knowingly accepted by gambling businesses in connection with unlawful Internet gambling.
Payment Processing Restrictions on Internet Gambling Fund Transfers:
The Federal Reserve recently enacted regulations that require U.S. financial firms that participate in designated payment systems to establish and implement policies and procedures reasonably designed to prevent payments connected to unlawful Internet gambling. In light of the regulations, please be informed that restricted transactions (as defined in Federal Reserve Regulation GG / 12 CFR Part 233) are prohibited from being processed directly or indirectly through any account or relationship maintained with us. Restricted transactions generally include, but are not limited to, those in which credit, electronic fund transfers, checks or drafts are knowingly accepted by gambling businesses in connection with unlawful Internet gambling.
Your Representations. You represent and warrant that (i) You maintain a currently licensed or registered and actively operating business engaged in lawful activities, excluding those Prohibited Businesses listed in Section 8. above; (ii) You provided accurate information to Us and will keep such information current, accurate and complete; (iii) You have the right, power and ability to enter into and perform under this Agreement, (iv) You will submit only bona fide business-purpose (non-consumer) transactions under the Spark Pay Merchant Program, and only in Your name and not for any third party, and (v) You will comply with all applicable laws, rules and regulations, applicable to Your business, including all tax and consumer protection laws and regulations, Network Rules and PCIDSS. You understand that We are merely a service provider and are not a partner in Your business operations nor a guarantor of the receipt by You of the proceeds of any sales transactions.
9. How Our Service Works
Generally. We will deposit to Your Spark Pay Merchant Program Account the net amounts that We receive for transactions submitted through the Spark Pay Merchant Program, less applicable Fees, Chargebacks (as defined below), penalties, fines and assessments. We will deposit that money in Your bank account (once we've verified Your bank account information), less Reserves held, if any, after Your Spark Pay Merchant Program Account balance exceeds $10.00.
Transaction Information and Review. In conjunction with Your use of the Spark Pay Merchant Program, You are responsible for collecting and maintaining the necessary and appropriate documentation to support all transactions processed through your Spark Pay Merchant Program Account. Such documentation may include, but is not limited to, a dated and executed invoice regarding a detailed description of the good or service at issue and a copy of the contract with Your customer containing the terms and conditions of sale as well as any item shipping provisions and the applicable return or exchange policy. Further, You are advised to collect and retain any additional information about the paying cardholder as may be reasonably and lawfully obtained during the processing of the transaction. From time to time as part of Our ongoing review process, the Spark Pay Merchant Program Credit Support Team may request certain of this information from You for Our examination. Further, this information may be used as part of any dispute resolution process as set forth below. For additional guidance on any required or requested information, please refer to the Spark Pay Merchant Program Service FAQ section of the www.sparkpay.com web portal.
Accuracy Of Payments. You are responsible for monitoring Your transactions, and for ensuring that the payments to You are correct and accurate. You must notify Us of any errors for payments made to You within thirty (30) days of such errors appearing in the electronic payment history of Your Spark Pay Merchant Program Account, or You waive any claims to such payment errors. Based on our internal risk and underwriting assessments, We may apply limits to the amount deposited to Your account.
Refunds. You may process a refund through Your Spark Pay Merchant Program Account up to forty-five (45) days from the day You accepted the payment. If Your Spark Pay Merchant Program Account balance is insufficient to cover that refund, We will ask for Your authorization to withdraw up to the requested refund amount from Your bank account. After Your authorization, We will withdraw the amount You were paid (the sale amount less the initial transaction fee) and credit it to Your customer's card. We also refund any Fees (as defined below), so the full purchase amount is returned to the customer. We have no responsibility for accepting returns of any goods or services on Your behalf. We will not refund any amount(s) to any card or transaction that was not originally processed by Capital One.
Deferring Payouts or Restricting Funds. If we need to conduct an investigation or resolve any dispute related to Your Spark Pay Merchant Program Account, we may defer payouts or restrict access to the funds in the Spark Pay Merchant Program Account for the time it takes Us to conduct or resolve these matters. We may also do so as required by law or if requested by law enforcement or by a governmental entity.
Maintenance. We conduct routine maintenance on the Spark Pay Merchant Program, and reserve the right to shut down or terminate the Merchant Program without notice should emergency maintenance be necessary.
Reserves. In Our sole discretion, and in order to secure the performance of Your obligations to us, we may designate an amount for funds that we will maintain either in Your Spark Pay Merchant Program Account or in a different reserve account (the "Reserve"), to secure the performance of any fees, taxes or penalties, payments, assessments and any charges due us, or to any third party. Such Reserve may be established for any reason, including if You have a high percentage of Chargebacks or credits, or if You have an unusually high volume of them, exceeding the amount reported on Your application. We will reasonably determine the amount of the Reserve to cover anticipated losses. We may raise, reduce or remove the Reserve in our discretion at any time. If Your Reserve does not have sufficient funds, we may fund the Reserve from any funding source associated with Your Spark Pay Merchant Program Account, including funds (i) in Your bank account or other payment instrument registered with us, (ii) deposited by You, or (iii) due to You under this Agreement. You grant us a security interest in, and lien on, any funds held in the Reserve, and authorize us to make withdrawals or debits from the Reserve without prior notice to You, to collect amounts that You owe us under this Agreement. We will release our security interest in the Reserves within 180 days after all fees otherwise owed to us or to any third party may have been paid.
Fees. You agree to pay the applicable fees disclosed on the Spark Pay Merchant Program website at www.sparkpay.com/enroll (the "Fees"). All disclosed Transaction Fees are subject to rounding up to the nearest $0.01. We may change our Fees upon thirty (30) days advance notice to You. Notice of any changes in our Fees will be made available on the Spark Pay Merchant Program website. Your continued use of the Spark Pay Merchant Program on the thirty-first day following the notice constitutes Your acceptance to such changes. If You do not wish to pay such changed Fees, You must close Your Spark Pay Merchant Program Account. For additional detail regarding Fees and other related terms and conditions, including any applicable incentive regarding a Fees waiver, please see www.sparkpay.com/legal/fees-disclosures.
Taxes. You are responsible for determining any and all taxes assessed, incurred or required to be collected, paid or withheld for any reason in connection with Your use of the Spark Payment Merchant Program (the "Taxes.") You are responsible for collecting, withholding, reporting and remitting correct Taxes to the appropriate tax authorities.
Tax Reporting. Information about your transactions will be reported and funds may be withheld as required under I.R.S. regulations.
In addition to the Fees, You agree to pay the amount of any transactions if the transaction (i) is disputed, (ii) is reversed for any reason by a Network, Our processor, or by Your financial institution, (iii) is allegedly unlawful, suspicious or in violation of the terms of this Agreement, or (iv) was not authorized ("Chargeback"). For any such transaction resulting in a Chargeback, You authorize Us to: (i) withhold the amount of the Chargeback in the Reserve, and (ii) deduct the amount of the Chargeback and associated Fees, fines or penalties listed in the Fee Schedule or assessed by the Networks or our processor from Your Spark Pay Account (including any Reserve), or any proceeds due to You, as well as all attorneys' fees and other legal expenses We may incur as a result of collecting the unpaid amount of any Chargebacks from You.
You are solely responsible for the payment of Chargebacks, and We have no financial responsibility whatsoever for any Chargebacks. Your failure to comply with the Network Rules may increase Your exposure to Chargebacks. Your obligation to pay Chargebacks survives the termination or other expiration of this Agreement. You agree to fully cooperate with the Network Rules regarding Chargebacks.
If If We believe that You are incurring an excessive amount of Chargebacks, We may establish controls or conditions governing You or Your Spark Pay Merchant Program Account, including (i) establishing new Fees, (ii) creating a Reserve to cover anticipated Chargebacks and related Fees, (iii) delaying payouts to You, and (iv) terminating or suspending the Spark Pay Merchant Program.
11. Account Access
In order to provide You with ease of access to Your account and to help administer the Spark Pay Merchant Program, Capital One may implement technology that will enable Us to recognize You as the account holder and provide You with direct access to Your account without requiring You to retype any password or other user identification when You revisit the Spark Pay Merchant Program. You are responsible for updating and maintaining the truth and accuracy of the information You provide to us relating to Your account.
You are also responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer or Spark Pay Merchant Program-ready device. If You disclose Your password to anyone or share Your account and/or devices with other people, You take full responsibility for their actions. Where possible, users of public or shared devices should log out at the completion of each visit. If You sell or return a computer or Spark Pay Merchant Program-ready device, You should logout and/or deactivate the device before doing so. If You fail to log out or deactivate Your device, subsequent users may be able to access certain of Your account information.
12. Your Conduct in Accessing the Spark Pay Merchant Program
By accessing the Spark Pay Merchant Program, including the Spark Pay Merchant Program website, You agree to use the Spark Pay Merchant Program, including all features and functionalities associated therewith, the website and software associated therewith in accordance with all applicable laws, rules and regulations. In addition, You agree not to upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Spark Pay Merchant Program. You also agree not to interfere with the servers or networks connected to any portions of the Spark Pay Merchant Program or to violate any of the procedures, policies or regulations of networks connected to the Spark Pay Merchant Program. You also agree not to impersonate any other person while using the Spark Pay Merchant Program.
Confidential Information. The Software and all documentation, drawings, websites, designs, specifications, engineering details and related information pertaining to the Software, whether in oral, written, graphic or electronic form, are and shall remain the confidential and proprietary information of Capital One (collectively, the "Confidential Information").
Nondisclosure. You shall (1) disclose Confidential Information to only those directors and employees (collectively, "Affiliates") whose duties justify their need to know such information and who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information; and (2) use Confidential Information for the sole purpose of accessing and using the Spark Pay Merchant Program, but not for any purpose detrimental to Capital One. In any event, You and Your Affiliates shall treat Confidential Information as strictly confidential and shall use the same care to prevent disclosure of such information as You use with respect to Your own similar confidential and/or proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Except for the Software itself, neither You nor any of Your Affiliates shall copy any Confidential Information without the prior express written consent of Capital One, and all Confidential Information, and any copies thereof, shall be returned promptly to Capital One upon request. You shall ensure that Your Affiliates comply with the provisions of this section, and You shall be liable for any breach of this section resulting from the act or omission of any of Your Affiliates. You shall not disclose Confidential Information to any third party, including, without limitation, any of Your subcontractors.
You agree to indemnify, defend and hold Capital One, its affiliates and each of their officers, directors, employees, contractors, employees, agents and its third party suppliers, licensors and partners harmless from any and all claims, losses, damages and liabilities, including without limitation legal fees and expenses, arising out of or related to Your use of the Spark Pay Merchant Program, or any violation by You of this Agreement. We reserve the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us, including rights to settle, and You agree to cooperate with the defense and settlement of these claims. We will use reasonable efforts to notify You of any claim, action or proceeding brought by a third party that is subject to the foregoing indemnification upon our becoming aware of it.
15. Disclaimers of Warranties and Limitations on Liability
THE SPARK PAY MERCHANT PROGRAM, INCLUDING OUR WEBSITE, AND ALL SOFTWARE AND HARWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SPARK PAY MERCHANT PROGRAM, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SPARK PAY MERCHANT PROGRAM, OUR WEBSITE, AND ALL SOFTWARE AND HARDWARE ASSOCIATED THEREWITH. CAPITAL ONE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SPARK PAY MERCHANT PROGRAM, INCLUDING USE OF OUR SOFTWARE, HARDWARE SUPPLIED IN CONJUNCTION WITH THE SPARK PAY MERCHANT PROGRAM OR FUNCTIONALITIES, WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT CAPITAL ONE MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE SPARK PAY MERCHANT PROGRAM, INCLUDING FEATURES, WITHOUT COMPENSATION OR NOTICE TO YOU. CAPITAL ONE SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF SPARK PAY MERCHANT PROGRAM-READY DEVICES AND THE SOFTWARE AND HARDWARE SUPPLIED IN CONJUNCTION WITH THE SPARK PAY MERCHANT PROGRAM (INCLUDING THEIR CONTINUING COMPATIBILITY WITH OUR SERVICE) TO THE EXTENT ALLOWABLE BY LAW, WE AND OUR LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
In addition, We do not represent or warrant that the information accessible via the Spark Pay Merchant Program website or any linked Capital One website is accurate, complete or current. We do not represent or guarantee that Your use of the Spark Pay Merchant Program will be free from interruption, loss, corruption, attack, viruses, interference, hacking, or other security intrusion and we disclaim any liability with respect thereto. No oral or written information or advice given by Us or Our authorized representative shall create a warranty or otherwise constitute a representation binding upon Capital One or its affiliated parties.
16. Use of Feedback
Capital One is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication You may send to Us ("Feedback"), including responses to questionnaires or through postings to the Spark Pay Merchant Program, including the Spark Pay Merchant Program website or any linked Capital One website, without further compensation, acknowledgement or payment to You for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Spark Pay Merchant Program. Furthermore, by posting any Feedback on any of Our websites, submitting Feedback to Us, or in responding to questionnaires, You grant Us a perpetual, non-exclusive, royalty-free irrevocable license and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.
17. Links and Pages
The parties to this Agreement shall use all reasonable efforts to resolve any disputes, controversies or differences arising out of or in connection with this Agreement amicably, including the use of a mutually agreeable, non-binding mediation procedure. Any dispute which cannot be settled by mutual agreement or mediation shall be finally and exclusively settled by arbitration held in Richmond, Virginia, and conducted by the American Arbitration Association (the "AAA") under the AAA's Commercial Arbitration Rules. Arbitration shall be by three (3) arbitrators, one chosen by You, one chosen by Capital One, and the third chosen by the two arbitrators selected by the parties or appointed by the AAA. Once appointed pursuant to this procedure, the arbitral tribunal may order provisional or conservatory measures (including injunctive relief) at the request of one party and may embody such order in any final award. Nothing in the foregoing precludes, restricts or is intended to preclude or restrict the right of either Party to seek injunctive or other equitable relief in an appropriate court of competent jurisdiction. English shall be the official language of the arbitration proceedings. The arbitrators shall make a decision which is in accordance with the terms of this Agreement, shall apply the law of the State of Virginia, without regard to its conflicts of laws principles, and shall state the basis for any decision in writing. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of the award and an order of enforcement as the case may be.
19. PAYware Connect Gateway
Capital One may use VeriFone's PAYware Connect Gateway for your transactions. Below are the provisions you agree to in using PAYware Connect.
Merchant is hereby authorized by VeriFone, Inc. ("VeriFone") to use the PAYware payment processing services ("PAYware Connect Service"). VeriFone may modify the PAYware Connect Service from time to time in its reasonable discretion, provided that such modifications shall not materially diminish the functionality thereof. Merchant understands and agrees that Merchant shall be solely responsible for establishing and maintaining the appropriate and necessary connection between Merchantâ€™s point-of-sale system(s) and the PAYware Connect Service.
Maintenance. VeriFone conducts routine maintenance to the PAYware Connect Service. Maintenance is generally scheduled during time periods when overall end user online activity is limited. VeriFone reserves the right to shut down the PAYware Connect Service with no notice should emergency maintenance become necessary. VeriFone reserves the right to remove any user from the PAYware Connect Service should VeriFone determine, in its sole discretion, that the PAYware Connect Service has been compromised or in any way used inappropriately. In extreme cases, removal may occur immediately without prior notification.
DISCLAIMER OF WARRANTIES THE PAYWARE CONNECT SERVICE (INCLUDING ANY SOFTWARE PROVIDED TO MERCHANT IN CONNECTION THEREWITH (THE "SOFTWARE")), IS PROVIDED "AS IS", WITH ALL FAULTS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VERIFONE DOES NOT WARRANT THAT THE FUNCTIONS OF THE PAYWARE CONNECT SERVICE OR THE SOFTWARE WILL MEET THE REQUIREMENTS OF MERCHANT. VERIFONE DOES NOT WARRANT THAT THE OPERATION OF THE PAYWARE CONNECT SERVICE OR THE SOFTWARE WILL BE UNINTERRUPTED OR ENTIRELY ERROR FREE. MERCHANT ACKNOWLEDGES THAT UNDER NO CIRCUMSTANCES DOES VERIFONE REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS WITH RESPECT TO THE PAYWARE CONNECT SERVICE OR THE SOFTWARE CAN BE REMEDIED. NO ADVICE OR INFORMATION OBTAINED BY MERCHANT FROM VERIFONE OR FROM ANY THIRD PARTY ABOUT THE PAYWARE CONNECT SERVICE OR THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO LIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) RELATING IN ANY MANNER TO THE PAYWARE CONNECT SERVICE OR SOFTWARE (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) IN ANY CASE, VERIFONE'S ENTIRE LIABILITY RELATING IN ANY MANNER TO THE PAYWARE CONNECT SERVICE AND THE SOFTWARE, REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY MERCHANT FOR THE PAYWARE CONNECT SERVICE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PAYWARE CONNECT SERVICE OR THE SOFTWARE, AND MERCHANT SHALL DEFEND VERIFONE FROM, AND INDEMNIFY AND HOLD VERIFONE HARMLESS AGAINST, ALL SUCH CLAIMS. THE LIMITATIONS CONTAINED IN THE DISCLAIMER OF WARRANTIES ABOVE AND THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF VERIFONE'S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE PAYWARE CONNECT SERVICE AND THE SOFTWARE TO MERCHANT ABSENT SUCH LIMITATIONS.
Termination. VeriFone may terminate the PAYware Connect Service upon written notice to the Merchant if such Merchant breaches any of the terms of the PAYware Connect Service and fails to cure such breach within thirty (30) days of receipt of notice of such breach.
Upon the expiration or termination of the PAYware Connect Service, Merchant shall immediately discontinue any use of the PAYware Connect Service and the Software. Merchant is responsible for retrieving any data stored with VeriFone prior to any termination date. VeriFone does not provide data retrieval services. Notwithstanding anything to the contrary contained in this Agreement, the above Disclaimer of Warranties and Limitations of Liability sections shall survive any expiration or termination of this Agreement.
General.Merchant acknowledges that the PAYware Connect Service and the Software are proprietary products of VeriFone and that (as between VeriFone and Merchant) ownership of all patents, copyrights, trademarks, trade names and other intellectual property rights relating to the PAYware Connect Service and the Software will remain with VeriFone. The provisions in this Section 19 of the Agreement constitute the entire agreement between VeriFone and Merchant, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof. The provision of the PAYware Connect Service, including any Software, is governed by the laws of the State of California, without regard to its conflict of law provisions. Merchant consents to the exclusive jurisdiction and venue of the appropriate courts in Santa Clara County, California for all disputes strictly arising out of, or directly relating to, the provision of the PAYware Connect Service and any Software. VeriFone may assign or delegate the provision of the PAYware Connect Service, or any of its rights or obligations hereunder, in its sole discretion and without notice to the Merchant. No amendment or waiver of the terms and conditions of the provision of the PAYware Connect Service, as set forth herein, will be binding upon VeriFone unless it has been agreed to in writing. If any provision of the PAYware Connect Service, including any Software, is found by a court of competent jurisdiction to be invalid, Merchant agrees that the court should endeavor to give the maximum effect to both parties' intentions as reflected in the provision, and that the other provisions of the PAYware Connect Service, including any Software, shall remain in full force and effect. Notices desired or required to be made by VeriFone to Merchant under the PAYware Connect Service (e.g., notices of amendments to the PAYware Connect Service or Software, etc.) shall be provided by Capital One upon access of the PAYware Connect Service.
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between You and Capital One, and sets forth the entire liability of Capital One, its affiliates and licensors, and Your exclusive remedy with respect to the Spark Pay Merchant Program and its use. Any waiver of the terms herein by Capital One must be in a writing signed by an authorized officer of Capital One, and expressly reference the terms of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objective of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Unless otherwise required by law, any action or proceeding by You to enforce an obligation, duty or right under this Agreement or by law must commence within one (1) year after the cause of action arises. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Us without restriction. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement will survive and remain in effect in accordance with its terms upon the termination of this Agreement.
21. MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS
This MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS ("Agreement") is made among VANTIV, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively "Acquirer") and ("Sub-merchant") in connection with the agreement between Sub-merchant and Capital One Merchant Services ("Provider").
Acquirer will provide Sub- merchant with certain payment processing services ("Services") in accordance with the terms of this Agreement. In consideration of Sub- merchantâ€™s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover ("Discover"), and certain similar entities (collectively, "Associations"), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchantâ€™s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchantâ€™s agent (â€œAgentsâ€) to comply, with the Associationâ€™s and other payment networkâ€™s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Sub-merchant may review the VISA, MasterCard, and Discover websites for a copy of the VISA, MasterCard and Discover regulations. The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant and http://www.discovernetwork.com/merchants. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (â€œLawsâ€). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the U.S. Treasuryâ€™s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchantâ€™s software providers and/or equipment providers.
If appropriately indicated in Sub-merchant's agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain VISA and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money- laundering or financing of terrorist activities.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, VISA, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 â€“Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, VISA, or any other acceptance brand.
2. Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that inc ludes the cardholderâ€™s account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant, v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, vii) accept a VISA consumer credit card or commercial VISA product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
3. Settlement. Upon receipt of Sub-merchantâ€™s sales data for card transactions, Acquirer will process Sub-merchantâ€™s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant-Owned Designated Account or through Provider to an account designated by Provider ("Provider Designated Account"), at Acquirerâ€™s discretion, for such card transactions. Sub- merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub- merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchantâ€™s designated demand deposit account ("Sub-merchant-Owned Designated Account") upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub- merchant or Provider.
4. Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchantâ€™s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider's agreement with Sub-merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire determines Sub-merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer's agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
5. Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant's sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Providerâ€™s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirerâ€™s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirerâ€™s relationship with Sub- merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirerâ€™s relationship with Sub-merchant.
6. Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer's standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement "Member Bank" as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub- merchant.
Effective Date: August 14, 2015