Last updated: May 2020
PAYSAFE Merchant Services Corp.
Terms and Conditions
PART I – CC PROCESSING
Certification of Beneficial Owner(s)
To help the government fight financial crime, Federal regulation requires certain financial institutions
to obtain, verify, and record information about the beneficial owners of legal entity customers. Legal
entities can be abused to disguise involvement in terrorist financing, money laundering, tax evasion,
corruption, fraud, and other financial crimes. Requiring the disclosure of key individuals who own or
control a legal entity (i.e., the beneficial owners) helps law enforcement investigate and prosecute
By signing below, I attest that I have accurately provided the name, address, date of birth and Social
Security Number (SSN) for the following individuals (i.e. the beneficial owners):
Each individual, if any, who owns directly or indirectly, 25 percent or more of the equity interests of
the legal entity customer (e.g., each natural person that owns 25 percent or more of the shares of a
An individual with significant responsibility for managing the legal entity customer (e.g., a Chief
Executive Officer, Chief Financial Officer, Chief Operating Officer, Managing Member, General
President, Vice President, or Treasurer).
The number of individuals that satisfy this definition of “beneficial owner” may vary. Under section (i),
depending on the factual circumstances, up to four individuals (but as few as zero) may need to be
identified. Regardless of the number of individuals identified under section (i), you must provide the
identifying information of one individual under section (ii). It is possible that in some circumstances
the same individual might be identified under both sections (e.g., the President of Acme, Inc. who
also holds a 30% equity interest). Thus, a completed form will contain the identifying information of
at least one individual (under section (ii)), and up to five individuals (i.e., one individual under section
(ii) and four 25 percent equity holders under section (i)).
I, the applicant certify that all of the information furnished above with regard to information
for each individual, if any, who directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, owns 25 percent or more of the equity interests of
the legal entity listed above is complete and accurate.
BANK INFORMATION: Merrick Bank, Merchant Services Department, 135 Crossways Park Drive
North, Suite A, Woodbury, NY, 11797, USA (800)-267-2256
1. Merrick Bank is the only entity approved to extend acceptance of VISA products directly to a
2. Merrick Bank must be a principal (signor) to the Merchant Agreement.
3. Merrick Bank is responsible for educating Merchants on pertinent VISA Operating Regulations
with which Merchants must comply.
4. Merrick Bank is responsible for and must provide settlement funds to the Merchant.
5. Merrick Bank is responsible for all funds held in reserve that are derived from settlement.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR 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 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.
IMPORTANT INFORMATION ABOUT UIGEA
Merchant may not accept a Card for an unlawful Internet gambling Transaction. Merchant will
pay all Card Network fines, fees, penalties and all other assessments or indebtedness levied
by Card Networks and/or regulatory agencies to Bank which are attributable, at the Bank’s
discretion, to Merchant’s Transaction processing or business.
Subject to the requirements of applicable Card Network rules, Paysafe Merchant Services Corp.
(“ISO”) and Merrick Bank Corporation (“Bank”) may and hereby do allocate certain of their
respective duties and obligations between themselves as they deem appropriate at their sole
discretion, and ISO or Bank may jointly or individually assert or exercise the rights or remedies
provided to the Bank hereunder. For purposes of this Agreement, Bank and ISO are collectively
referred to hereinafter as the “Bank”.
The Bank and Merchant agree as follows:
ARTICLE I – DEFINITIONS
1.01 “Account” means a commercial checking or demand deposit account maintained by Merchant
referred to in Section 5.17 for the crediting of collected funds and the debiting of fees and charges
under this Agreement.
1.02 “ACH” means the Automated Clearing House paperless entry system controlled by the Federal
1.03 “Agreement” means these terms and conditions, any supplementary documents referenced
herein, and valid schedules and amendments to the foregoing.
1.04 “Authorization” means a computerized function or a direct phone call to a designated number
to examine individual Transactions to obtain approval from the Card Issuer to charge the Card for
the amount of the sale.
1.05 “Bank” has the meaning set forth on the Merchant Application.
1.06 “Card” means (i) a valid credit card in the form issued under license from Visa U.S.A., Inc., Visa
International, Inc., MasterCard International, Inc., or Discover® (“Bank Card”); or (ii) any other valid
credit card accepted by Merchant by agreement with Bank.
1.07 “Card Networks” means Visa U.S.A., Inc., Visa International, Inc., MasterCard International,
Inc., Discover, or any other Card Issuers that provide Cards accepted by Merchant by agreement
1.08 “Card Networks Rules” means the respective and collective by-laws, rules, regulations,
operating manuals, operating letters and policies, and cardholder data security standards, as such
may be amended from time to time, and established and imposed by Card Networks in respect of
1.09 “Card Issuer” means the financial institution or company which has provided a Card to a
1.10 “Card Not Present (CNP)” means that an Imprint of the Card is not obtained at the point-ofsale.
1.11 “Cardholder” means the person whose name is embossed upon the face of the Card.
1.12 “Cardholder Information” means any non-public, sensitive information about a Cardholder,
including any combination of Cardholder name plus the Cardholder’s social security number, driver’s
license or other identification number or credit or debit card number, or other bank account number.
1.13 “Chargeback” means the procedure by which a Sales Draft (or disputed portion thereof) is
returned to Bank by a Card Issuer because such item does not comply with the applicable Card
plan’s operating regulations.
1.14 “Company” or “Merchant” means the business entity or sole proprietor that has authorized this
Agreement to be signed and is fully responsible for abiding by all provisions of the Agreement as
now written or as may be modified in the future.
1.15 “Credit Voucher” means a document executed by a Merchant evidencing any refund or price
adjustment relating to Cards to be credited to a Cardholder account.
1.16 “Imprint” means (i) an impression on a Sales Draft manually obtained from a Card through the
use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal
and electronically capturing Card Data and printing a Sales Draft.
1.17 “ISO” means the Independent Sales Organization or Member Service Provider sponsored by
Merrick Bank and providing limited services to the Bank and on behalf of the Bank to Merchant and
which is a party to this Agreement as specified.
1.18 “Laws” shall have the meaning ascribed to such term at Section 2.16 hereof.
1.19 “Mid- or Non-Qualifying Transaction” means any sale Transaction that fails to qualify for
lowest interchange rate assigned by the applicable Card Network for Merchant’s standard card
industry code and which may be charged fees as set forth in Schedule A.
1.20 “Officer” means the person or persons duly authorized by the Company to sign this Agreement
and obligate the Company to fully abide by all provisions of the Agreement as now written or as
modified in the future.
1.21 “Sales Draft” means the paper form, whether electronically or manually imprinted, evidencing a
1.22 “Transaction” means any sale of products or services, or credit for such, from a Merchant for
which the Cardholder makes payment through the use of any Card and which is presented to Bank
1.23 “Voice Authorization” means a direct phone call to a designated number to obtain credit
approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems.
ARTICLE II – CARD ACCEPTANCE
2.01 Honoring Cards. Merchant will accept all valid Cards when properly presented by Cardholders
in payment for goods or services, subject to applicable Card Network rules requiring Merchant to
elect whether it will accept credit only, debit only or both debit and credit Cards. Merchant’s election
is set forth in the Application. Merchant may not establish minimum or maximum amounts for Card
sales as a condition for accepting any Card. Merchant may not require any Cardholder to pay as a
surcharge any part of any discount or charge imposed upon Merchant by this Agreement, whether
through any increase in price or otherwise require a Cardholder to pay any charge or price as a
condition of sale that is not also required from a customer paying cash. However, Merchant may not,
by this term, be prevented from offering discounts to Cardholders for cash purchases. Merchant may
not engage in a Transaction (other than a mail, Internet, telephone order, or preauthorized sale to
the extent permitted under this Agreement) if the person seeking to charge the purchase to his or
her Card account does not present the Card to permit Merchant to compare the signature on the
Card to the signature on the Sales Draft and obtain an Imprint or otherwise use the physical Card to
complete the Transaction.
2.02 Advertising. Merchant will prominently display the promotional materials provided by Bank in its
place(s) of business. Merchant’s use of promotional materials and use of any trade name,
trademark, service mark or logo type (“Marks”) associated with a Card is limited to informing the
public that the Card will be accepted at Merchant’s place(s) of business. Merchant’s use of
promotional materials and Marks is subject to the Bank’s direction. Merchant may use promotional
materials and Marks only during the term of this Agreement and will immediately cease use and
return any inventory to Bank upon termination thereof. Merchant may not use any promotional
materials or Marks associated with the Card Networks in any way which suggests or implies that
either endorses any goods or services other than Bank Card services.
2.03 Card Acceptance. When accepting a Card, Merchant will follow the steps provided by Bank for
accepting Cards and will: (a) Determine in good faith and to the best of its ability that the Card is
valid on its face; (b) obtain Authorization from the Card Issuer to charge the Cardholder’s account;
(c) unless the Sales Draft is electronically generated or is the result of a mail, Internet, phone or
preauthorized order, (i) obtain an Imprint of the Card including embossed data from the merchant
imprinter plate; and (ii) obtain the Cardholder’s signature on the Sales Draft and compare that
signature to the signature on the Card; (d) enter a description of the goods or services sold and the
price thereof (including any applicable taxes); (e) deliver a true and completed copy of the Sales
Draft to the Cardholder at the time the goods are delivered or services performed, or, if the Sales
Draft is prepared by a point-of-sale terminal, at the time of the sale; (f) offer the Sales Draft to Bank
for purchase according to Bank’s procedures and the terms of this Agreement; and (g) make a Card
Imprint, if the Transaction is not based upon a mail, Internet, phone or pre-authorized order.
2.04 Authorization. Merchant will obtain an Authorization for all Card sales. If Merchant cannot, for
any reason, obtain an electronic Authorization through the use of a terminal, Merchant will request a
Voice Authorization from Bank’s designated authorization center and will legibly print the
authorization number on the Sales Draft. Merchant will not obtain or attempt to obtain authorization
from Bank’s authorization center unless Merchant intends to submit to Bank a Transaction for the
authorized amount if Authorization for the Transaction is given. Merchant may not divide a single
Transaction between two or more Sales Drafts on a single Card to avoid Authorization limits that
may be set by the Card Issuer. Merchant acknowledges that an Authorization provides only that the
Cardholder account has sufficient credit available to cover the amount of the current sale and that an
Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback
and does not warranty the Cardholder’s identity. Merchant may not attempt to obtain an
authorization by successively decreasing the sale amount. Bank may refuse to purchase or process
any Sales Draft presented by Merchant: (a) unless a proper authorization or approval code has been
recorded on the Sales Draft; (b) if Bank determines that the Sales Draft is or is likely to become
uncollectible from the Cardholder to which the Transaction would otherwise be charged; (c) if Bank
has reason to believe that the Sales Draft was prepared in violation of any provision of this
Agreement; or (d) if Merchant submits any travel and entertainment card (“T&E) Transaction for
processing by Bank without a valid agreement with the respective T&E Card company, such as
American Express. For the T&E Card Transactions designated on Schedule A, upon transmission of
such Sales Data by Merchant, Bank will forward the Sales Data to the appropriate T&E Card
company on Merchant’s behalf. Payment of the proceeds due Merchant will be governed by
whatever agreement Merchant has with that T&E Card company, and neither ISO nor the Bank
bears any responsibility for the performance of the T&E card company nor is responsible for
providing support to the Merchant for such services. If Merchant’s agreement with a T&E Card
company requires the T&E Card company’s consent for the Bank to perform the limited processing
services contemplated by this Agreement, Merchant is responsible for obtaining that consent
Merchant will use, and may not circumvent, fraud identification tools requested by Bank, including
Address Verification System processing and CVV2 processing, and acknowledges that the use of
these tools may prevent Merchant from accepting certain Cards as payment. Merchant
acknowledges that its use of fraud identification tools may not prevent fraudulent Card usage and
agrees that any fraudulent Transaction may ultimately result in a Chargeback, for which Merchant
retains full liability under this Agreement.
2.05 Retention and Retrieval of Cards. Merchant will use its best efforts, by reasonable and peaceful
means, to retain or recover a Card when receiving such instructions when making a request for
Authorization or if Merchant has reasonable grounds to believe the Card is counterfeit, fraudulent or
stolen. Merchant’s obligations under this section do not authorize a breach of the peace or any injury
to persons or property, and Merchant will hold Bank harmless from any claim arising from any injury
to person or property or other breach of the peace in connection with the retention or recovery of a
2.06 Multiple Transaction Records; Partial Consideration. Merchant may not prepare more than one
Sales Draft for a single sale or for a single item but will include all items of goods and services
purchased in a single Transaction in the total amount on a single Sales Draft except under the
following circumstances: (a) for purchases in separate departments of a multiple department store;
(b) for partial payment, installment payment, delayed delivery, or advance deposit; or (c) for delayed
or amended charges governed by rules for travel and entertainment merchants and Transactions.
2.07 Telephone Orders, Mail Orders, Internet, Preauthorized Orders and Installment Orders . Unless
Merchant has been approved by Bank to accept mail, Internet or telephone orders, Merchant
warrants that it is a walk-in trade business, located in a retail business place where the public moves
in and out freely in order to purchase merchandise or obtain services. If Bank determines Merchant
has accepted unapproved Card Transactions which are placed by telephone, generated through
telephone solicitation, mail order or other means that does not create a Sales Draft that bears the
Card imprint and Cardholder’s signature, this Agreement will be immediately terminated and the
value of all Sales Drafts collected from the first day of processing may be charged back to Merchant
and all funds therefrom held as provided in Article IV. Unless approved by Bank, this Agreement
does not contemplate regular acceptance of Cards for sales accepted by mail, Internet or telephone
nor through preauthorized orders. If an occasional Card Transaction is made by mail, phone or
preauthorized order, the Sales Draft may be completed without the Cardholder’s signature or an
Imprint, but in such case Merchant will create a sales slip containing Cardholder data, an
Authorization number, the sale amount and the letters “MO”, “TO” or “PO”, as appropriate. Receiving
an Authorization will not relieve the Merchant of liability for Chargeback on any Transaction for which
the Merchant did not obtain an Imprint or the Cardholder’s signature.
2.08 Lodging and Vehicle Rental Transactions. Merchant must estimate and obtain Authorization for
the amount of the Transaction based upon the Cardholder’s intended length of stay or rental.
Additional Authorization must be obtained and recorded for charges actually incurred in excess of
the estimated amount. Regardless of the terms and conditions of any written preauthorization form,
the Sales Draft amount for any lodging or vehicle rental Transaction must include only that portion of
the sale, including any applicable taxes, evidencing a bona fide rental of real or personal property by
Merchant to the Cardholder and may not include any consequential charges. Nothing contained
herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization
form through means other than a Card Transaction.
2.09 Returns and Adjustments; Credit Vouchers. Merchant’s policy for the exchange or return of
goods sold and the adjustment for services rendered will be established and posted in accordance
with operating regulations of the applicable Card Network’s Rules and applicable Laws. Merchant
will disclose, if applicable, to a Cardholder before a Card sale is made, that if merchandise is
returned: (a) no refund, or less than a full refund, will be given; (b) returned merchandise will only be
exchanged for similar merchandise of comparable value; (c) only a credit toward purchases will be
given; or (d) special conditions or circumstances apply to the sale (e.g., late delivery, delivery
charges, or other non-credit terms). If Merchant does not make these disclosures, a full refund in the
form of a credit to the Cardholder’s Card account must be given. Disclosures must be made on all
copies of Sales Drafts or invoices in letters approximately 1/4″ high in close proximity to the space
provided for the Cardholder’s signature or on an invoice issued at the time of the sale or on an
invoice being presented for the Cardholder’s signature. Any change in Merchant’s return or
cancellation policy must be submitted in writing to Bank not less than 14 days prior to the change.
Bank may refuse to process any Sales Draft made subject to a revised return or cancellation policy
of which Bank has not been notified as required herein.
2.10 Cash Payments. Merchant may not receive any payments from a Cardholder for charges
included in any Transaction resulting from the use of any Card nor receive any payment from a
Cardholder to prepare and present a Transaction for the purpose of affecting a deposit to the
Cardholder’s Card account.
2.11 Cash Advances; Scrip Purchases. Merchant may not deposit any Transaction for the purpose
of obtaining or providing a cash advance either on Merchant’s Card or the Card of any other party
and may not accept any Card at a scrip terminal, and either action will be grounds for Bank’s
immediate termination of this Agreement.
2.12 Duplicate Transactions. Merchant may not deposit duplicate Transactions. Bank may debit
Merchant for any adjustments for duplicate Transactions and Merchant is liable for any Chargebacks
2.13 Deposit of Fraudulent Transactions. Merchant may not accept or deposit any fraudulent
Transaction and may not under any circumstances present for processing or credit, directly or
indirectly, a Transaction which originated with any other merchant or any other source other than
Transactions arising from bona fide purchases from Merchant for the goods and services for which
Merchant has been approved under this Agreement. If Merchant deposits any prohibited
Transaction, Bank may: (a) immediately terminate this Agreement; (b) withhold funds and demand
an escrow as provided in this Agreement; (c) report Merchant to the Card Networks under Section
4.04. Merchant’s employees’ actions are chargeable to Merchant under this Agreement.
2.14 Collection of Pre-existing Debt. Merchant may not prepare and present to Bank for purchase
any Transaction representing the refinancing of an existing Cardholder obligation including, but not
limited to, obligations: (a) previously owed to Merchant; (b) arising from the dishonor of a
Cardholder’s personal check or relating to a Chargeback; or (c) representing the collection of any
other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.
2.15 Data Security/Personal Cardholder Information. Merchant may not, as a condition of sale,
impose a requirement on Cardholders to provide any personal information as a condition for
honoring Cards unless such information is required to provide delivery of goods or services or
Merchant has reason to believe the identity of the person presenting the Card may be different from
that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise
disclose any Cardholder Information to any person other than Bank or the applicable Card Network,
except as expressly authorized in writing by the Cardholder, or as required by Law or the Card
(a) Safeguards. Merchant will maintain appropriate administrative, technical and physical safeguards
for all Cardholder Information. These safeguards will (i) ensure the confidentiality of Cardholder
Information; (ii) protect against any anticipated threats or hazards to the security or integrity of
Cardholder Information; (iii) protect against unauthorized access to or use of Cardholder Information
that could result in substantial harm or inconvenience to any Cardholder; and (iv) properly dispose of
all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant
will maintain all such safeguards applicable to Merchant or Bank in accordance with applicable Law
and Card Network Rules.
(b) Compliance with Card Network Rules. Merchant represents, warrants and covenants that it is
and will remain throughout the term of this Agreement in compliance with Card Network Rules
related to data security, data integrity and the safeguarding of Cardholder Information including the
Payment Card Industry Data Security Standard (“PCI”), MasterCard’s Site Data Protection Program
(“SDP”), Visa’s Customer Information Security Program (“CISP”), and Discover Information Security
Compliance (“DISC”), , in effect and as may be amended, supplemented or replaced. Merchant will
cause all of its service providers, subcontractors and agents to comply with PCI, SDP and CISP
requirements at all times. Merchant will report any non-compliance immediately to Bank. To
accomplish the foregoing, Merchant will encrypt all debit, credit or stored value card numbers
whether in storage, transport or backup and will not store data security codes on its systems,
network or software.
(c) Annual Certification. Merchant will provide an annual certification to Bank if requested by Bank (in
a form acceptable to Bank) certifying compliance with the data security provisions of this Agreement,
including compliance with applicable Card Network requirements such as PCI, SDP and CISP.
Merchant will provide annual certifications for Merchant’s service providers, subcontractors and
(d) Information Use Limitations. Merchant may not sell, disclose, or otherwise make Cardholder
Information available, in whole or in part, in a manner not provided for in this Agreement, without
Bank’s prior written consent. Merchant may, however, disclose Cardholder Information to its service
providers, subcontractors and agents who have a need to know such information to provide the
Services described in this Agreement, provided that those individuals or entities have assumed
confidentiality obligations in accordance with this Agreement, or as may be required by legal process
or applicable Law and have entered into a written agreement with Merchant containing Merchant’s
and such individuals’ or entities’ agreement to the foregoing data security provisions including
compliance with Card Network Rules.
(e) Response to Unauthorized Access. Merchant will notify Bank within 24 hours after it knows of
any breach in security resulting in an unauthorized access to Cardholder Information. Merchant will
provide any assistance that Bank, the issuing bank of any Cardholder, and their regulators and the
Card Networks deem necessary to contain and control the incident to prevent further unauthorized
access to or use of Cardholder Information. Such assistance may include, but not be limited to,
preserving records and other evidence and compiling information to enable Bank and the issuing
bank(s) or the Card Networks to investigate the incident and provide assistance and cooperation to:
(i) file suspicious activity reports (as applicable); (ii) notify their regulators (as applicable); and (iii)
notify the affected Cardholder (as required). Unless the unauthorized access was due to Bank’s acts
or omissions, Merchant will bear the cost of notifying affected Cardholder.
(f) Miscellaneous. Merchant may not make a claim against Bank or hold Bank liable for the acts or
omissions of other merchants, service providers, Card Networks, financial institutions or others that
do not have a written contractual relationship with Bank or over which Bank has no control. These
provisions supplement, augment and are in addition to obligations of indemnification, audit,
confidentiality and other similar provisions contained in this Agreement. This Section 2.15 and each
of its subsections will survive this Agreement’s termination. Merchant may not store in any system or
in any manner discretionary Card read data including without limitation CVV2 data, PIN data,
address verification data or any other information prohibited by Card Network rules.
2.16 Compliance with Laws and Card Network Rules. Merchant will comply with and conduct its
Card activities in accordance with all applicable local, state, and federal statutes, regulations,
ordinances, rules and other binding law, as the same may be enacted or amended from time to time,
including without limitation all state and federal consumer credit and consumer protection statutes
and regulations (collectively, “ Laws”) and Card Network rules and regulations. Failure to comply
with such rules and regulations may result in Merchant being terminated for cause and listed on
various Card Network and industry databases, including the Terminated Merchant File and the
Merchant Alert to Control High Risk Merchants file (“MATCH”). With respect to the Card Networks,
Merchant may not: (a) accept Cardholder payments for previous Card charges incurred at the
Merchant location; (b) establish a minimum or maximum Transaction amount as a condition for
honoring a Card; (c) require a Cardholder to complete a postcard or similar device that includes the
Cardholder’s account number, card expiration date, signature, or any other card account data in
plain view when mailed; (d) add any surcharge to Transactions; (e) add any tax to Transactions,
unless applicable Law expressly requires that Merchant be permitted to impose a tax (any tax
amount, if allowed, must be included in the Transaction amount and not collected separately); (f)
enter into interchange any Transaction receipt for a Transaction that was previously charged back to
Bank and subsequently returned to Merchant, irrespective of Cardholder approval (Merchant may
pursue payment from the Cardholder outside the Card Network system); (g) request or use an
account number for any purpose other than as payment for its goods or services; (h) 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 Merchant; (i) disburse funds in the form of cash, unless: (i)
Merchant is a lodging or cruise line merchant disbursing cash to a Cardholder, (ii) Merchant is
dispensing funds in the form of travelers checks, Cards, or foreign currency, or (iii) Merchant is
participating in the Card Network cash back service; (j) accept a Card for the purchase of scrip; (k)
accept a Card for manual cash disbursement; (l) accept a Card to collect or refinance existing debt
that has been deemed uncollectible by the Merchant providing the associated goods or services; (m)
enter into a Transaction that represents collection of a dishonored check; or (n) accept a Card for an
unlawful Internet gambling Transaction. Merchant will pay all Card Network fines, fees, penalties and
all other assessments or indebtedness levied by Card Networks to Bank which are attributable, at
the Bank’s discretion, to Merchant’s Transaction processing or business.
2.17 Merchant’s Business. Merchant will notify Bank immediately if it intends to (a) transfer or sell
any substantial part of its total assets, or liquidate; (b) change the basic nature of its business,
including selling any products or services not related to its current business; (c) change ownership or
transfer control of its business; (d) enter into any joint venture, partnership or similar business
arrangement whereby any person or entity not a party to this Agreement assumes any interest in
Merchant’s business; (e) alter in any way Merchant’s approved monthly volume, average, or
maximum ticket; or (f) change its return policies or to use another fulfillment house different from
those identified in Merchant Application. Merchant will notify Bank promptly in writing if it becomes
subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Merchant’s
failure to provide notice as required above may be deemed a material breach and will be sufficient
grounds for termination of Merchant and for Bank’s exercise of all its rights and remedies provided
by this Agreement. If any change listed above occurs, Bank may immediately terminate this
2.18 Merchant’s Warranties. Merchant represents and covenants that: (a) all information contained
in the Merchant Application or any other documents delivered to Bank in connection therewith is true
and complete and properly reflects Merchant’s business, financial condition and principal partners,
owners or officers; (b) Merchant has power to execute, deliver and perform this Agreement, and this
Agreement is duly authorized, and will not violate any provisions of Law, or conflict with any other
agreement to which Merchant is subject; (c) Merchant holds all licenses, if any, required to conduct
its business and is qualified to do business in every jurisdiction where it is required to do so; (d)
there is no action, suit or proceeding at Law or in equity now pending or to Merchant’s knowledge,
threatened by or against or affecting Merchant which would substantially impair its right to carry on
its business as now conducted or adversely affect its financial condition or operations; (e) each
Sales Draft presented to Bank for collection is genuine and is not the result of any fraudulent activity
or a Transaction prohibited by a Card Network or is not being deposited on behalf of any business
other than Merchant as authorized by this Agreement; (f) each Sales Draft is the result of a bona fide
Card Transaction for the purchase of goods or services from Merchant by the Cardholder in the total
amount stated on the Sales Draft; (g) Merchant has performed or will perform all of its obligations to
the Cardholder in connection with the Card Transaction evidenced thereby; (h) Merchant has
complied with Bank’s procedures for accepting Cards, and the Card Transaction itself does not
involve any element of credit for any other purposes other than as set forth in this Agreement, and is
not subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder
under the Card Networks’ rules, the Consumer Credit Protection Act (15 USC §1601) or other
relevant state or federal statutes or regulations; (i) any Credit Voucher which it issues represents a
bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has
been accepted by Bank; (j) Merchant will maintain Chargebacks and fraud Transactions below the
permitted limits established by the Card Networks’ or the limits that are established by the Bank in
any period, whichever is lower; (k) Merchant has read and understands the terms of this Agreement;
(l) Merchant has obtained all required consents from Cardholders in respect of their personal
information to be accessed, collected, used or transferred by Bank or ISO in providing the services
behalf of itself and the Cardholders at : https://www.paysafe.com/privacy-policy/ . In addition, to the
extent that Merchant has been introduced to ISO and entered into this Agreement through a referral
partner of ISO (the “ Referral Partner”), Merchant acknowledges and agrees that ISO may share
Merchant’s Transaction information with the Referral Partner, on a need to know basis.
2.19 Third Parties. Merchant may desire to use a third-party service provider to assist Merchant with
its Transactions. Merchant shall not utilize any such third parties unless Merchant has disclosed
such use to Bank previously in writing, and unless such third party is fully compliant with all Laws
and Card Network Rules. Any third party used by Merchant must be registered with the Card
Network prior to the performance of any contracted services on behalf of Merchant. Further, as
between the parties to the Agreement, Merchant will be bound by the acts and omissions of any
third-party service provider and Merchant will be responsible for compliance by such third party
service provider with all Laws and Card Network Rules. Merchant will indemnify and hold harmless
Bank from and against any loss, cost, or expense incurred in connection with or by reason of
Merchant’s use of any third parties, including third-party service providers. Bank is not responsible
for any third-party service provider used by Merchant, nor is Bank required to process any
Transaction which Bank receives from Merchant or its service providers in any format not approved
by Bank. Bank has no responsibility for and shall have no liability to Merchant in connection with,
any hardware, software or services Merchant receives subject to a direct agreement (including any
sale, warranty or end-user license agreement) between Merchant and a third party.
2.20 Recourse. Merchant acknowledges that ISO performs the services contemplated by this
Agreement and ISO is responsible to Merchant for any failure to perform such services in
accordance with the terms of this Agreement. While Bank satisfies settlement files pursuant to
instructions provided by ISO, Bank is not responsible for independently verifying the accuracy of
such settlement files. Accordingly, to the greatest extent permitted by the Network Rules, Merchant’s
sole recourse for any failure by Bank under this Agreement is against ISO (and not Bank).
2.21 Pre-Authorized Transactions. If Merchant agrees to accept a pre-authorized order, the
Cardholder shall execute and deliver to Merchant a written request for such pre-authorization which
will be retained by Merchant and made available upon request to Bank. Merchant will not deliver
goods or perform services covered by a pre-authorization after receiving specific notification that the
pre-authorization is cancelled or that the card covering the pre-authorization is not to be honored.
2.22 Pre-Authorization Health Care Transactions. If Merchant is a “Health Care Merchant” as
indicated on the Merchant Application and accepts a pre-authorized health care Transaction(s) from
a Cardholder, Merchant agrees to comply with any requirements in the Card Network Rules related
to such Transactions.
2.23 Recurring Transactions. If Merchant agrees to accept a recurring Transaction from a
Cardholder for the purchase of goods or services which are delivered or performed periodically (a
“ Recurring Transaction”), the Cardholder shall complete and deliver to Merchant an order form
containing a written request for such goods or services to be charged to the Cardholder’s account,
the frequency of the recurring charges and the duration of time for which such Cardholder’s
permission is granted. In the event a Recurring Transaction is renewed, the Cardholder shall
complete and deliver to Merchant a subsequent order form for continuation of such goods or
services to be charged to the Cardholder’s account. A Recurring Transaction may not include partial
payments made to Merchant for goods or services purchased in a single Transaction, nor may it be
used for periodic payments of goods or services on which Merchant assesses additional finance
charges. A copy of the order form must be retained for the duration of the recurring charges and
provided in response to Bank’s request. In addition, Merchant must record, retain, and promptly
produce upon request the “ship to address” and address verification service code (where applicable)
for each Transaction. Merchant must not complete an initial or subsequent Recurring Transaction
after receiving a cancellation notice from the Cardholder, the Card Issuer, Bank or other party or a
response that the Card is not to be honored.
2.24 Limited Acceptance.
(a) If appropriately indicated on the Merchant Application, 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 the merchant application forming part of this Agreement, Merchant can
elect (i) to accept only Visa or MasterCard non-PIN based debit/stored value/electronic benefit
Transactions (sometimes referred to as “signature debit” Transactions, whether or not an actual
signature is required), (ii) 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 Cards of Card Networks 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 Card Network 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 not
limited to policing the Card Network type(s) 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 Network Rules and other applicable rules and regulations for the Card
Network type processed.
ARTICLE III – PRESENTMENT, PAYMENT, CHARGEBACK
3.01 Acceptance. Bank will accept from Merchant all Sales Drafts deposited by Merchant under the
terms of this Agreement and will present the same to the appropriate Card Issuers for collection
against Cardholder accounts. Merchant must transmit Sales Drafts and Credit Vouchers to Bank or
its processing vendor on the same or next business day immediately following the day that such
Sales Drafts and Credit Vouchers have been originated. All presentment and assignment of Sales
Drafts, collection thereof and reassignment or rejection of such Sales Drafts are subject to the terms
of this Agreement and regulations of the Card Network. Bank will only provisionally credit the value
of collected Sales Drafts to Merchant’s Account and reserves the right to adjust amounts collected to
reflect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges,
reserve deposits, negative Sales Draft batch deposits and items for which Bank did not receive final
3.02 Endorsement. By presenting Sales Drafts to Bank for collection and payment, Merchant agrees
to sell and assign all its right, title and interest in each Sales Draft completed in conformity with
Bank’s acceptance procedures and constitutes an endorsement by Merchant to Bank of such Sales
Drafts. Bank may supply such endorsement on Merchant’s behalf.
3.03 Prohibited Payments. Bank may receive payment of any Sales Draft presented by Merchant
and paid by Bank unless and until there is a Chargeback. Unless specifically unauthorized in writing
by Bank, Merchant may not collect or attempt to collect any Sales Draft, including Chargebacks, and
will hold in trust for Bank and promptly deliver in kind to Bank any payment Merchant receives, in
whole or in part, of the amount of any accepted Transaction, together with the Cardholder’s name
and account number and any correspondence accompanying payment.
3.04 Chargebacks. Merchant will accept for chargeback any sale for which the Cardholder disputes
the validity of the sale according to prevailing Card Network regulations, or a Card issuer or Bank
determines that Merchant has in any way failed to comply with Card Network regulations or Bank’s
procedures in accepting a Card and presenting the resulting Sales Draft to Bank for purchase.
Section 2.03 notwithstanding, Bank may charge back the amount of a Card sale for which the
Cardholder disputes authorizing the charge if Merchant failed to obtain the Card Imprint or the
Cardholder’s signature. Merchant may not initiate a sale Transaction in an attempt to collect a
Chargeback. Merchant will pay the current published fees for each Chargeback as listed on
Schedule A. Bank will send Merchant any requests received from Issuing Banks or the Networks
resulting from Merchant’s Transactions (“Retrieval Request”) if the Bank cannot satisfy the inquiry
with the information retained by Bank concerning any Card sale. In response to the Retrieval
Request Merchant must provide by certified or overnight mail or by confirmed fax or scanned
documents (or by other means as agreed by Bank) the results of Merchant’s investigation of such
Retrieval Requests and include legible copies of any documentation required by the Retrieval
Request within seven (7) business days after the Bank dispatched the Retrieval Request to
Merchant (or such shorter time as the Card Network rules may require and of which Merchant will be
notified). Merchant acknowledges that failure to fulfill a Retrieval Request in accordance with Card
Network rules may result in an irreversible Chargeback. Merchant has full liability if any Sales Data
for which Bank has given Merchant’s Account provisional credit is the subject of a chargeback.
Merchant may be allowed to resubmit applicable sales data for a second presentation of a response
to a chargeback in accordance with the Card Network rules. To the extent that Bank has paid or may
be called upon to pay a Chargeback or refund/adjustment for or on the account of a Cardholder and
Merchant does not reimburse Bank as provided in this Agreement, then for the purpose of Bank
obtaining reimbursement of such sums paid or anticipated to be paid, Bank has all of the rights and
remedies of such Cardholder under applicable Law and Merchant authorizes Bank to assert any and
all such claims in Bank’s own name for and on behalf of any such Cardholder customer individually
or all such Cardholder customers as a class.
3.05 Chargeback Reserve Account. Notwithstanding anything to the contrary in this Agreement,
Bank may establish (without notice to Merchant) and Merchant agrees to fund a non-interest bearing
chargeback reserve account (the “Reserve Account”), or demand other security or raise any
discount, Transaction or other fees. This account may be established at any time or for any reason
if, in the Bank’s reasonable consideration, Bank suspects Merchant’s Transaction processing history
is or perhaps will create liabilities for refunds, chargeback reimbursements or Card Network fines
that will be owed to Bank by Merchant and the Bank determines, in its sole but reasonable
consideration, such obligations may not be collectible from Merchant in a timely manner without
such Reserve Account being established or the amounts within the Reserve Account increased.
Specific examples of conditions that might prompt the Bank to establish or increase the balances
in a Chargeback Reserve Account might include, but will not be limited to: (a) Merchant engaging in
any charge processing that creates an overcharge to a Cardholder by duplicating charges; (b)
Merchant engaging in any activity designed by Merchant to circumvent a “call center” message when
attempting to process a Transaction; (c) Merchant breaching this Agreement, violating any
representation, covenant or warranty herein, or violating any applicable Card Network rule or
applicable Law; (d) Merchant’s application is in any way inaccurate or becomes inaccurate
subsequent to Bank’s approval of the application; (e) Merchant changes its type of business without
Bank’s prior written approval; (f) fraud, Merchant processes an unauthorized charge, or other action
that violates Bank’s applicable risk management standards or is likely to cause a loss; (g) Merchant
has Chargebacks exceeding a percentage of total Transactions, total settlement amounts that could
exceed the limits for chargeback or fraud Transactions permitted by the Card Networks or as such
limits as are established by the Bank in any period (h) creating an excessive numbers of requests
from consumers or card issuing banks to retrieve documentation; (i) Merchant’s financial stability is
in question or Merchant ceases doing business; (j) Merchant terminating this Agreement for any
reason or (k) at the request of Bank in its sole discretion. Once the Reserve Account is established,
collected funds will be placed in the Reserve Account. Before releasing funds after this Agreement is
terminated, Merchant will pay any equipment cancellation fees and any outstanding charges, losses
or amounts, and Chargebacks for which Merchant has provided indemnification under this
Agreement. Further, Bank may require Merchant to deposit additional amounts based upon
Merchant’s processing history and/or anticipated risk of loss to Bank into the Reserve Account. Once
established, unless Bank determines otherwise at its sole discretion, the Reserve Account will
remain in place for 180 days and a reasonable period thereafter during which Cardholder disputes
may remain valid under applicable Card Network rules. The provisions of this Agreement relating to
account debits and credits apply to the Reserve Account and survive this Agreement’s termination
until Bank terminates the Reserve Account. Any balance remaining after chargeback rights have
expired and all of Bank’s other expenses, losses and damages have been paid will be disbursed to
ARTICLE IV – TERMINATION AND EFFECT OF TERMINATION
4.01 Term. This Agreement will be effective once Bank accepts it and, unless otherwise terminated,
will continue for two (2) years with automatic two (2)-year renewals thereafter until Merchant
provides written notice of non-renewal given not less than thirty (30) days before the end of the thencurrent Term.
(a) Without Cause. Bank may terminate this Agreement, without cause, upon thirty (30) days’
advance written notice to Merchant.
(b) For Cause. Bank may terminate this Agreement in its sole discretion, effective immediately, upon
written or verbal notice, or by closing Merchant’s point-of-sale terminal, if Bank reasonably
determines that any of the following conditions exists: (i) Merchant has violated any provision of this
Agreement; (ii) there is a material adverse change in Merchant’s financial condition; (iii) if any case
or proceeding is commenced by or against Merchant under any Law dealing with insolvency,
bankruptcy, receivership or other debt relief; (iv) any information which Merchant provided to Bank,
including if Application information, was false, incomplete or misleading when received; (v) at any
time during the term of this Agreement, Merchant has had a monthly ratio of Chargebacks to total
Transactions or dollar value exceeding Card Network or Bank requirements; (vi) an overdraft in the
settlement account exists for more than three days; (vii) Merchant or any of Merchant’s officers or
employees has been involved in processing Transactions arising from fraudulent or otherwise
unauthorized Transactions; (viii) Merchant is or will be unable or unwilling to perform its obligations
under this Agreement or applicable Law or Card Network Rules; (ix) Merchant has failed to pay Bank
in a timely manner any amount due; (x) Merchant has failed to promptly perform or discharge any
obligation under its settlement account or the Reserve Account; (xi) any of Merchant’s
representations or warranties made in connection with this Agreement was not true or accurate
when given; (xii) Merchant has defaulted on any agreement it has with the 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 15 days of such
service; (xiv) any Card Network rules are amended in any way so that the continued existence of this
Agreement would cause Bank to be in breach of those rules; (xv) any guaranty supporting
Merchant’s obligations is revoked, withdrawn, terminated or altered in any way; (xvi) any
circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any
Card Network; (xvii) termination is necessary to prevent loss to Bank or Card Issuers; (xviii)
Merchant’s type of business indicated on the Application or as conducted by Merchant could
endanger the Bank’s safety or soundness; (xix) Merchant’s owner, officer, guarantor, or corporate
entity has a separate relationship with the Bank and that relationship is terminated, (xx) Merchant
appears on any Card Network’s security reporting; or (xxi) Bank’s security for repayment becomes
impaired; (xxii) an event of default under any other indebtedness of Merchant shall have occurred
the effect of which is to permit the holder thereof to accelerate the due date of all or part of such
indebtedness; (xxiii) one or more judgments shall have been entered against Merchant which
judgment or judgments shall have remained unsatisfied for a period of 45 days from entry thereof;
(xxiv) Merchant receives a civil or criminal investigative demand, subpoena, or written request for
information concerning its or an affiliate’s activities from a federal or state regulatory or law
enforcement agency or Bank receives such a civil or criminal investigative demand, subpoena, or
written request for information concerning the activities of Merchant or its affiliates. Merchant shall
notify Bank in writing immediately upon becoming aware of the occurrence of an event of default, or
an event which with the passage of time or the giving of notice, or both, would constitute an event of
default. If a notice of Merchant’s intent to discontinue using Bank’s services is received from
Merchant by Bank prior to 30 days before the end of the then-current Term of the Agreement, or if
Merchant ceases normal processing activity (defined as the average processing for the previous 6
month period) or the Merchant enters an Agreement with another processor during the initial or
additional terms of this Agreement, such circumstances will be material breaches of this Agreement
(“ Early Termination”) and the Merchant will be subject to the relevant provisions of Section 4.04,
4.03 Effect of Bankruptcy. Any account or security held by Bank will not be subject to any
preference, claim or stay by reason of bankruptcy or similar Law. The parties expressly agree that
the acquisition of Card Transactions hereunder is a financial accommodation and if Merchant
becomes a debtor in any bankruptcy or similar proceeding, this Agreement may not be assumed or
enforced by any other person and Bank will be excused from performance hereunder.
4.04 Effect of Termination. When termination becomes effective, the parties’ rights and obligations
existing under this Agreement survive. If this Agreement is terminated, regardless of cause, Bank
may withhold and discontinue the disbursement for all Cards and other Merchant Transactions in the
process of being collected and deposited. If Merchant is terminated for cause, Merchant
acknowledges that Bank may be required to report Merchant’s business name and the names and
other identification of its principals to the MATCH file maintained by the Card Network. Merchant
expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring
listing on the MATCH file. Merchant waives and will hold harmless Bank from any claims that
Merchant may raise as a result of Bank’s MATCH file reporting. Merchant will also immediately
cease requesting Authorizations. If Merchant obtains any Authorization after termination, the fact
that any Authorization was requested or obtained will not reinstate this Agreement. Further,
Merchant will return all Bank property, forms, or equipment. All obligations for Transactions prior to
termination (including paying for Chargebacks and Bank’s expenses relating to Chargebacks)
survive termination. Bank is not liable to Merchant for damages (including prospective sales or
profits) due to termination. Following termination, Merchant will upon request provide Bank with all
original and electronic copies of Sales Drafts and Credit Vouchers that have been retained by
Merchant as of the date of termination. Upon termination, any amounts due to Bank will accelerate
and be immediately due and payable, without any notice, declaration or other act whatsoever by
Bank. In consideration for the special terms offered merchant, the Bank’s cost of initiating and
administering the Merchant’s processing privileges and for other good and valuable consideration
which hereby is acknowledged by Merchant, the parties agree that if this Agreement is terminated
before completion of the initial term of this Agreement for any reason other than material uncured
breach by Bank, Merchant hereby agrees Bank may debit Merchant’s Account for liquidated
damages (“Cancellation Fees”) for Early Termination and de-conversion of the Merchant’s
processing services by Merchant. Upon any Early Termination, Merchant agrees to return all POS
processing equipment in a complete and entirely undamaged condition and in the original
packaging, within 7 business days following the date of Termination or ceasing Transaction
processing and agrees to pay a shipping and restocking charge of no less than $200 to the Bank. If
all POS equipment is not returned within the time allowed, ISO and Bank will be entitled to debit the
Merchant’s Account for the full cost of all equipment when the equipment was new, plus
a restocking charge of at least $200 (or $600 for any mobile POS equipment). In addition, the
Merchant agrees to pay Bank’s actual costs and attorneys’, accountants’ or investigators’ fees (if
any) plus the greater of: i) the number of remaining months in the Agreement after notice of
termination or discontinuation of processing by Merchant, times $35.00 per month; or ii) the number
of remaining months in the Agreement after notice of termination or discontinuation of processing by
Merchant, times 0.5% the average Visa USA, MasterCard International, and Discover monthly
amounts settled to the Account during the prior six months (or, if less than six full months have
elapsed, then all previous months’ amounts settled to the Account ); or iii) a flat termination fee of
$500.00. Merchant agrees that these damages are not a penalty but are a reasonable computation
of the financial harm caused by the termination of this Agreement. Bank’s rights of termination are
ARTICLE V – MISCELLANEOUS
5.01 Account Monitoring. Merchant acknowledges that Bank will monitor Merchant’s daily deposit
activity. Bank may upon reasonable grounds suspend disbursement of Merchant’s funds for any
reasonable period of time required to investigate suspicious or unusual deposit activity. Bank will
make good faith efforts to notify Merchant promptly following suspension. Bank is not liable to
Merchant for any loss, either direct or indirect, which Merchant may attribute to any suspension of
5.02 Forms. Merchant will use only the forms or modes of transmission of Sales Drafts and Credit
Vouchers that are provided or approved in advance by Bank, and Merchant may not use such forms
other than in connection with card Transactions.
5.03 Indemnification. Merchant will defend, indemnify and hold Bank and its officers, directors,
members, shareholders, partners, employees, agents, subcontractors and representatives harmless
from and against any and all fines, penalties, claims, damages, expenses, liabilities or fees of any
nature whatsoever, including attorneys’ fees and costs (“Damages”), asserted against or incurred by
Bank arising out of, relating to or resulting from, either directly or indirectly: (a) a breach of the
security of the system safeguarding Cardholder Information resulting in unauthorized access to
Cardholder Information; (b) a breach of any representation, warranty or term of this Agreement,
including, but not limited to, the data security provisions by Merchant, or any service provider,
subcontractor or agent of Merchant; (c) the negligence, gross negligence or willful misconduct of
Merchant in the performance of its obligations under this Agreement, including, but not limited to, the
data security provisions; (d) any violation of applicable Laws and guidance and Card Network rules
by Merchant; and (e) all third party claims arising from the foregoing. Notwithstanding the preceding,
Merchant is not liable to Bank if Damages are caused by, related to or arise out of Bank’s
negligence, gross negligence or willful misconduct, or Bank’s breach of this Agreement. Merchant
will promptly reimburse Bank for any assessments, fines, fees or penalties imposed by the Card
Network in connection with this Agreement, including the data security provisions, and authorizes
Bank to deduct any such sums from amounts to be cleared and settled with Merchant.
5.04 Records. In addition to any records Merchant routinely furnishes to Bank under this Agreement,
Merchant will preserve a copy of actual paper Sales Drafts and Credit Vouchers and any written
authorization of the Cardholder for at least two years after the date Merchant presents the
Transaction to Bank.
5.05 Requests for Copies. Immediately after Merchant receives the request by Bank, Merchant will
provide to Bank either the original or a legible copy (in a size comparable to the actual Sales Draft)
of the paper Sales Draft and any other documentary evidence available to Merchant that Bank
reasonably requests to meet Bank’s obligations under law (including its obligations under the Fair
Credit Billing Act) or otherwise to respond to questions concerning Cardholder accounts.
5.06 Intentionally deleted.
5.07 Fees and Charges. Merchant will pay to Bank the fees and charges set forth on Schedule A
including any additional charges applied to Transactions that fail to meet Card Network requirements
for the lowest interchange levels. Merchant’s Account will be debited through ACH or withheld from
daily payments to Merchant for such amounts and for any other fees, charges or adjustments
incurred by Merchant and associated with processing services. Bank may change fees, including
adding fees for additional services utilized by Merchant, upon 30 days’ written notice to Merchant.
Merchant authorizes Bank to initiate ACH credits and debits to the Account to collect fees, charges,
and all other amounts owed by Merchant to Bank under this Agreement and to deposit Payouts (the
“ACH Authorization”). Such authorization shall remain in full force and effect until thirty (30) days
after Bank receives written notification from Merchant of termination of the ACH Authorization, by
email to email@example.com . Bank reserves the right to terminate or suspend the
services at any time that Merchant fails to provide an active Account with ACH Authorization.
5.08 Merchant Statement. Bank shall make available a Merchant Statement or similar information on
no less than a monthly basis. All information appearing on the Merchant Statement shall be deemed
accurate and affirmed by Merchant unless Merchant objects by written notice specifying the
particular item in dispute within 30 days of the date of the Merchant Statement. Delivery of the
Merchant Statement may be in written or electronic form.
5.09 Security Interest. To secure payment of Merchant’s obligations under this Agreement, Merchant
grants to Bank a security interest in all now existing or hereafter acquired: (a) Transactions, Sales
Drafts, Credit Vouchers and other items submitted to Bank for processing by or for Merchant; (b)
accounts receivable and payment rights relating to or arising from this Agreement, including all
amounts due Merchant (including any rights to receive credits or payments hereunder); (c) accounts
(including without limitation all deposit accounts) maintained with the Bank or any institution other
than Bank, including the Reserve Account, in the name of or for the benefit of, Merchant or any
guarantor of Merchant’s obligations under this Agreement; (d) deposits, regardless of source, to
Merchant’s or any guarantor’s accounts with Bank or any institution other than Bank, including the
Reserve Account; (e) all deposits and all other property and funds deposited by Merchant or
withheld by Bank, including funds and property withheld as the result of security monitoring; and (f)
proceeds of the foregoing. if Bank reasonably determines that Merchant has breached any obligation
under this Agreement, or that proceeds of Merchant’s future card sales are unlikely to compensate
the Bank for anticipated Chargebacks, credits, fees or fines and adjustments, as reasonably
determined by Bank (whether or not this Agreement has been terminated or for any other reason),
Bank may setoff or otherwise exercise its security interest without notice or demand by immediately
withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or
those rights available under applicable Laws, including the Utah Uniform Commercial Code, or in
equity. In addition to the collateral pledged above, Bank may, in its reasonable discretion, require
Merchant to furnish such other and different security as Bank deems appropriate in its sole
discretion to secure Merchant’s obligations under this Agreement. Bank may fully or partially prohibit
withdrawal by Merchant of funds from Merchant’s deposit accounts maintained with Bank or financial
institutions other than Bank, pending Bank’s determination from time to time to exercise its rights as
a secured party against such accounts in partial or full payment of Merchant’s obligations to Bank.
Merchant will execute any documents and take any actions required to comply with and perfect any
security interest under this paragraph, at Merchant’s cost. Merchant represents and warrants that no
other party has a security interest or lien in any of the collateral pledged above, and Merchant will
obtain Bank’s written consent before it grants a lien or security interest in that pledged collateral to
any other person.
5.10 Modifications to Agreement. This Agreement is subject to amendment to conform with Card
Network regulations, as amended from time to time. From time to time Bank may amend any
provision or provisions of this Agreement, including, without limitation, those relating to the discount
rate or to other fees and charges payable by Merchant by mailing written notice to Merchant of the
amendment at least 30 days prior to the effective date of the amendment, and the amendment will
become effective unless Bank receives Merchant’s notice of termination of this Agreement before
such effective date. Amendments required due to changes in either Card Network’s rules and
regulations or any law or judicial decision may become effective on such shorter period of time as
Bank may specify if necessary to comply with the applicable rule, regulation, law or decision.
5.11 Warranty Disclaimer. BANK MAKES NO WARRANTIES REGARDING THE USE, OPERATION
OR PERFORMANCE OR NON-PERFORMANCE OF SOFTWARE AND SYSTEMS UTILIZED FOR
THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, AND BANK EXPRESSLY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
5.12 Limitation of Liability. Bank’s liability with respect to any Card Transaction may not exceed the
amount of the Sales Draft in connection with that Transaction less any applicable fees and charges.
Bank is not liable for any incidental or consequential damages whatsoever. Merchant waives all
claims against Bank for any loss, claim, demand, penalty, action, delay, cost or expense (including
reasonable attorneys’ fees) of any kind unless Merchant provides written notice to Bank of the
occurrence that gave rise to the alleged liability within 30 days after Merchant knew or should have
known of the occurrence. Merchant will indemnify and hold Bank harmless from any claim relating to
any Sales Draft paid for by Bank as may be made by anyone by way of defense, dispute, offset,
counterclaim or affirmative action, or for any damages of or losses that Bank may incur as a result of
Merchant’s breach of this Agreement. Further, Merchant will reimburse Bank for all expenses and
costs, including attorneys’ fees, with regard thereto.
5.13 Waiver. Bank’s failure to enforce one or more of the provisions of this Agreement will not
constitute a waiver of the right to enforce the same or other provision in the future.
5.14 Written Notices. All written notices and other written communications required or permitted
under this Agreement will be deemed delivered immediately when hand delivered or when sent by
email to an email address designated by the recipient or sent via facsimile and the sender obtains a
fax confirmation receipt, and upon mailing when sent first class mail, postage prepaid, addressed as
1. a) Paysafe Merchant Services Corp. 3500 de Maisonneuve Blvd West, suite 700, Attn. Legal
Department; FAX 514-380-2760, email: legal.departmentNA@paysafe.com.
2. b) If to Bank: Merrick Bank Corporation, 10705 South Jordan Gateway, Suite 200, South Jordan,
UT 84095, Attn: SVP Merchant Services, Facsimile: 516-576-8741
3. c) If to Merchant: At the facsimile number, email address or address provided as the billing
address and to the contact listed on the Merchant Application.
4. d) Notwithstanding the foregoing, Bank and or ISO may provide written notices and other written
communications required under this Agreement, by email to the Merchant. All written notices and
other written communications will be deemed delivered on the first business day after which it is so
5.15 Choice of Law; Jurisdiction. New York law governs this Agreement. Any claim or cause of
action arising out of this Agreement against Bank must be initiated and maintained exclusively in the
state or federal courts located in Nassau, New York.
5.16 Entire Agreement; Assignability. This Agreement expresses the entire understanding of the
parties with respect to the subject matter hereof and except as provided herein, may be modified
only in writing executed by Bank and Merchant. This Agreement may not be assigned, directly or by
operation of law, without Bank’s prior written consent. This Agreement will be binding upon and inure
to the benefit of the parties’ respective heirs, personal representatives, successors and assigns.
5.17 Deposit Account. Merchant will at all times maintain an Account at a bank that is a member of
the Federal Reserve ACH system and will provide Bank with proper authorization to debit the
Account. All credits for collected funds and debits for fees, payments and Chargebacks and other
amounts for which Merchant is liable under the terms of this Agreement will be made to the Account.
Merchant may not close or change the Account without written notice to Bank. Merchant will be
solely liable for all fees and costs associated with the Account and for all overdrafts. Merchant
hereby grants to Bank a security interest in the Account to the extent of any and all fees, payments
and Chargebacks and other amounts due which may arise under this Agreement, and Merchant will
execute any document and obtain any consents or waivers from the bank at which the Account is
maintained as requested by Bank to protect its security interests therein.
5.18 Credit and Financial Inquiries; Additional Locations; Inspections. Bank may make, at any time,
any credit inquiries which it may consider necessary to accept or review acceptance of this
Agreement or investigate Merchant’s deposit or Card acceptance activities subsequent to
acceptance of this Agreement. Such inquiries may include, but are not limited to, a credit and/or
criminal check of the business including its proprietor, partners, principal owners or shareholders or
officers. Upon Bank’s request, Merchant will provide the written consent of any person for which an
inquiry has been or is to be made if such person has not executed this Agreement and will provide
any financial statements, income tax and business tax returns and other financial information as
Bank may consider necessary to perform initial or periodic reviews of Merchant’s financial stability
and business practices. Merchant may accept Cards only at locations approved by Bank. Additional
locations may be added, subject to Bank’s approval. Any party to this Agreement may delete any
location by providing notice as provided herein. Merchant will permit Bank, at any time and from time
to time, to inspect locations to confirm that Merchant has adhered or is adhering to the terms of this
Agreement and is maintaining the proper facilities, equipment, inventory, records and license or
permit (where necessary) to conduct its business. However, nothing in this paragraph may be
deemed to waive Merchant’s obligation to comply in all respects with the terms of this Agreement or
Card Network Rules. Bank, its internal and external auditors, and its regulators may audit
compliance with this Agreement, compliance with Laws and Card Network Rules including but not
limited to Card acceptance and Transaction processing, and data security provisions, including Card
Network compliance. Merchant will make available its records maintained and produced under this
Agreement, and Merchant’s facilities will be made accessible, upon notice, during normal business
hours for examination and audit. Nothing in this section may be construed to require Merchant to
give access to its facilities, personnel or records in a manner that unreasonably interferes with its
business operations. Each party will bear its expenses of any audit.
5.19 Marketing of Non-Bankcard Services by ISO. From time to time, ISO may offer to Merchant
certain additional products and services which may or may not be related to the processing of credit
card Transactions. In the event of such offers, Merchant shall indicate its desire to ISO to decline
such offers or be deemed to have accepted the offers and be liable for payment therefore. Bank
shall have no responsibility or liability to Merchant for performance of such non-credit card
Transaction services if provided by ISO or a third party, and ISO and Merchant shall enter separate
legal Agreements pertaining to such services, if any.
5.20 Force Majeure. The parties will be released from liability hereunder if they fail to perform any
obligation where the failure occurs by reason of any act of God, fire, flood, storm, earthquake, tidal
wave, communications failure, sabotage, war, military operation, terrorism, national emergency,
mechanical or electronic breakdown, civil commotion or the order, requisition, request or
recommendation of any governmental authority, or either party’s compliance therewith, or
governmental regulation, or priority, or any other similar cause beyond either party’s reasonable
5.21 No Third-Party Beneficiary. No other person or entity may be deemed to be a third-party
beneficiary of this Agreement.
5.22 Severability; Conflict with Card Network Rules. If any provision in this Agreement is for any
reason held to be invalid or unenforceable, no other provision shall be effected thereby, and this
Agreement shall be construed as if the invalid or unenforceable provision had never been a part of it.
In the event of a conflict between this Agreement and the Card Network Rules, the Card Network
Rules shall govern and control.
5.23 Confidentiality. Merchant shall protect all information or other items proprietary to Bank that
Merchant obtains knowledge of or access to as a result of Bank’s provision of the services pursuant
to this Agreement (collectively, “Bank Confidential Information”) from unauthorized disclosure,
publication, or dissemination with the same standard of care and discretion Merchant uses to protect
similar confidential information of Merchant’s own, but in no event less than reasonable care.
Furthermore, Merchant shall not use, reproduce, distribute, disclose, or otherwise disseminate Bank
Confidential Information, except in connection with the performance of Merchant’s obligations under
this Agreement. The Bank Confidential Information described in the previous sentence, shall include,
but not be limited to, the following types of information and other information of a similar nature
(whether or not reduced to writing): scientific, technical, or business information, product makeup
lists, ideas, concepts, designs, drawings, techniques, plans, calculations, system designs, formulae,
algorithms, programs, software (source and object code), hardware, manuals, test procedures and
results, identity and description of computerized records, identity and description of suppliers,
customer lists, processes, procedures, trade secrets, “know-how,” marketing techniques and
material, marketing and development plans, price lists, pricing policies, and all other financial
information. The obligations of non-disclosure provided hereunder shall continue during the Term
and, (i) with respect to Bank Confidential Information that does not constitute a trade secret, for a
period of three (3) years thereafter and, (ii) with respect to Bank Confidential Information that rises to
the level of a trade secret under applicable Law, for such period of time thereafter as the Bank
Confidential Information shall retain its status as a trade secret under applicable Law, and no less
than three (3) years thereafter.
ARTICLE VI – VERIFICATIONS AND CONSENTS
6.01. Verification. 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. When Merchant opens an account, Bank will ask for
Merchant’s name, address, date of birth, and other information that will allow Bank to identify
Merchant. Bank may also ask to see Merchant (or principals’) your driver’s license or other
6.02 Consent. THE PRINCIPAL OF THE MERCHANT AUTHORIZES ISO TO OBTAIN FROM ANY
CREDIT REPORTING AGENCY FINANCIAL AND CREDIT REPORTS, AND TO OBTAIN
STATEMENTS FROM CREDITORS, FINANCIAL INSTITUTIONS AND OTHER THIRD PARTIES
CONCERNING HIMSELF OR HERSELF. THE PRINCIPAL OF THE MERCHANT FURTHER
AUTHORIZES ISO TO CONTACT THIRD PARTIES TO VERIFY ANY INFORMATION PROVIDED
IN HIS OR HER CREDIT REPORT OR OTHERWISE SUBMITTED TO ISO IN CONNECTION WITH
THE MERCHANT APPLICATION.
ARTICLE VII – American Express OptBlue® Program
Terms below are additional terms applicable specifically to the American Express OptBlue®
Program (“American Express Card Acceptance”) (capitalized terms below not defined
elsewhere in the Agreement shall have the meanings assigned in the American Express
Network Rules). With respect to participation in an American Express acceptance program, in
the event of a conflict between the terms below and other terms of this Agreement, the terms
below shall control with respect to American Express Transactions only. Merchant shall be
bound by American Express Network Rules, including the Merchant Operating Guide:
7.01 Transaction Data. Merchant authorizes Bank and/or its affiliates to submit American Express
Transactions to, and receive settlement on such Transactions from, American Express on behalf of
7.02 Marketing Message Opt-Out. Merchant may opt-out of receiving future commercial marketing
communications from American Express by contacting Bank. Note that Merchant may continue to
receive marketing communications while American Express updates its records to reflect this choice.
Opting out of commercial marketing communications will not preclude Merchant from receiving
important transactional or relationship messages from American Express.
7.03 Conversion to American Express Direct Merchant. Merchant acknowledges that it may be
converted from American Express Card OptBlue program to a direct relationship with American
Express if and when its Transaction volumes exceed the eligibility thresholds for the OptBlue
program. If this occurs, upon such conversion, (i) Merchant will be bound by American Express’
then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees
payable by Merchant.
7.04 American Express as Third Party Beneficiary. Notwithstanding anything in the Agreement to the
contrary, American Express shall have third-party beneficiary rights, but not obligations, to the terms
of this Agreement applicable to American Express Card Acceptance to enforce such terms against
7.05 American Express Right to Modify or Terminate Agreement. American Express has the right to
modify the Agreement with respect to American Express Card Transactions or to terminate
Merchant’s acceptance of American Express Card Transactions and to require Processor to
investigate Merchant’s activities with respect to American Express Card Transactions.
7.06 American Express Opt-Out. Merchant may opt out of accepting American Express at any time
without directly or indirectly affecting its rights to accept Cards bearing Marks of other Card
7.07 Refund Policies. Merchant’s refund policy for American Express purchases must be at least as
favorable as its refund policy for purchase on any other Card Network, and the refund policy must be
disclosed to Cardholders at the time of purchase and in compliance with Law. Merchant may not bill
or attempt to collect from any Cardholder for any American Express Transaction unless a
Chargeback has been exercised, Merchant has fully paid for such Chargeback, and it otherwise has
the right to do so.
7.08 Establishment Closing. If Merchant closes any of its Establishments, Merchant must follow
these guidelines: (i) notify ISO immediately; (ii) policies must be conveyed to the Cardholder prior to
completion of the Transaction and printed on the copy of a receipt or Transaction record the
Cardholder signs; (iii) if not providing refunds or exchanges, post notices indicating that all sales are
final (e.g., at the front doors, by the cash registers, on the Transaction record and on websites and
catalogs); (iv) return and cancellation policies must be clearly disclosed at the time of sale; and (v)
for Advance Payment Charges or Delayed Delivery Charges, Merchant must either deliver the goods
or services for which Merchant has already charged the Cardholder or issue Credit for any portion
of the Transaction for which Merchant has not delivered the goods or services.
7.09 Bank or ISO shall have the right to terminate Merchant’s participation in American Express
Card Acceptance immediately upon written notice to Merchant (i) if Merchant breaches any of the
provisions of this American Express Optblue Program Agreement or any other terms of the
Agreement applicable to American Express Card Acceptance, or (ii) for cause or fraudulent or other
activity, or upon American Express’ request. In the event Merchant’s participation in American
Express Card Acceptance is terminated for any reason, Merchant must immediately remove all
American Express branding and marks from Merchant’s website and wherever else they are
7.10 Merchant must accept American Express as payment for goods and services (other than those
goods and services prohibited by this American Express Optblue Program Agreement, this
Agreement, or the RULES) sold, or (if applicable) for charitable contributions made at all of its
business locations and websites, except as expressly permitted by state statute. Merchant is jointly
and severally liable for the obligations of Merchant’s business locations and websites under this
7.11 In the event that Merchant or Bank/ISO is not able to resolve a Claim against American
Express, or a Claim against Bank or ISO or any other entity that American Express has a right to join
in resolving a Claim, the Merchant Operating Guide explains how Claims can be resolved through
arbitration. Merchant or American Express may elect to resolve any Claim by individual, binding
arbitration. Claims are decided by a neutral arbitrator.
7.12 Merchant must ensure that it and any third parties it enlists to facilitate SALES processing
complies with the American Express Technical Specifications (available at
www.americanexpress.com/merchantopguide) (valid and accurate data must be provided for all data
elements in accordance with the American Express Technical Specifications). Failure to comply with
the American Express Technical Specifications may impact Merchant’s ability to successfully
process SALES. Merchants may be assessed non-compliance fees if Merchant fails to comply with
the Technical Specifications. To ensure compliance with the Technical Specifications, Merchants
should work with Bank/ISO.
PART II – ACH ONLY
BETWEEN: PAYSAFE MERCHANT SERVICES CORP., a legal person having a place of business
at 1209 Orange Street, Wilmington, DE, 19801
(hereinafter referred to as “Paysafe”)
AND: CLIENT, whose name and address are as stated on the attached Application
(hereinafter referred to as the “Client”)
1.1 WHEREAS the Client wishes to engage the services of Paysafe to act as limited agent of the
Client in order to process, verify, settle, confirm, report and perform related Processing Services
relating to the business operations of the Client;
1.2 WHEREAS the Client has completed an Application and Paysafe in reliance on the Information
furnished therein has approved the opening of an account by the Client with Paysafe;
1.3 WHEREAS Paysafe wishes to provide Processing Services to the Client subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
2.1 “ACH” means the Automated Clearing House.
2.2 “Application” means an application to open an account for ACH Processing Services with
Paysafe in the form attached hereto.
2.3 “Clearing Houses” means a member or members of the National Automated Clearing House
Association designated by Paysafe to process and settle Electronic Check Transactions.
2.4 “Clearing Period” means the 6th business day following the submission of a transaction to the
2.5 “Client Designated Account” means the Client’s bank account at a financial institution as
indicated by Client in the Application, or as otherwise amended by Client with the prior written
consent of Paysafe.
2.6 “Confidential Information” shall mean Paysafe’s programs, procedures, proprietary or other
software (including transaction software) and other intellectual property.
2.7 “Data” means: (i) the data about transactions and related instructions and information provided
by Client to Paysafe in the form as indicated by Paysafe in documentation provided to Client, and as
amended from time to time; and (ii) any other information requested by Paysafe.
2.8 “Effective date” means the date of this agreement as it appears above the signatures of the
2.9 “Electronic Check(s)” means an electronic debit to a United States bank account, initiated
directly or indirectly via the ACH.
2.10 “Electronic Check Transaction(s)” means transactions involving Electronic Checks that have
been approved based on positive credit information and positive credit availability (following the
Clearing Period) and where available, positive address verification, as more fully described in
2.11 “Fee” means the amounts specified the Application.
2.12 “Fine” means (i) any fine imposed on Paysafe by any party as a result of any activity related
directly or indirectly to Client; (ii) any amount which may reasonably be imposed as a fine or other
penalty by a third party as a result of any activity related directly or indirectly to Client; (iii) any fine
which may be imposed by Paysafe for excessive Returned Items or breach of the terms of this
2.13 “Information” means all the information supplied by the Client to Paysafe in the Application.
2.14 “NACHA” means the National Automated Clearinghouse Association.
2.15 “NACHA Operating Rules” means the standards, rules, regulations and procedures established
by NACHA that enable depository financial institutions to exchange payments on a national basis.
2.16 “NSF” means an approved and settled Electronic Check Transaction that returns with an error
code of R01.
2.17 “Obligations” has the meaning ascribed thereto in Section 4.6.
2.18 “ODFI” means the Originating Depository Financial Institution, or Paysafe’s bank.
2.19 “Processing Services” has the meaning ascribed thereto in Section 3.1.
2.20 “RDFI” or “Consumer’s Bank” means the Receiving Depository Financial Institution, or the
2.21 “Remittances” has the meaning ascribed thereto in Section 3.1.2.
2.22 “Reserve Amount” has the meaning ascribed thereto in Section 4.4.
2.23 “Reserve Amount Expense” means all liabilities in respect of actual or potential post-termination
Obligations, and other charges, indemnifications and expenses due or reasonably anticipated to be
2.24 “Returned Items” means all approved and settled Electronic Check Transactions which are at
any time refused or debited by the RDFI against the ODFI, including but not limited to the following
return codes; R01 (insufficient funds), R02 (account closed), R03 (unable to locate account), R04
(invalid account number), R08 (stop payment), R09 (uncollected funds), R16 (account frozen) R20
(non-transaction account), and R29 (Corporate Customer Not Authorized).
2.25 “Security Deposit” has the meaning ascribed thereto in Section 4.5.1.
2.26 “Security Deposit Account” has the meaning ascribed thereto in Section 4.5.
3. PROCESSING SERVICES
3.1 Subject to the terms and conditions set forth in this Agreement, Paysafe hereby agrees to
provide the following processing services to the Client (the “Processing Services”), as limited agent
of the Client, as more fully described in Section 3A:
3.1.1 Submission of debit (withdrawal) and credits (refund) requests by consumers, based on the
bank account number and routing number provided by the consumer except where authorization has
been revoked. “Submission” of those requests, for purposes of this provision, shall mean the receipt
and, after positive verification of the negative database, transmission of such information to the
Clearing Houses for confirmations and approvals from the Clearing Houses;
3.1.2 Settlement of funds into Client’s account (“Remittances”) as described in the Application;
3.1.3 Provision of a Web-based real-time reporting tool to view Electronic Check Transactions,
Returned Items, and all associated fees and reserves as per Section 4;
3.1.4 Provision of documentation and application programming interface(s) for use by Client to
submit transactions to Paysafe;
3.1.5 Confirmation of receipt of the Data provided by Client;
3.1.6 Verification of the submitted bank routing number;
3.1.7 Prompt notification of Client of any rejected entry from ACH. Paysafe shall use reasonable
efforts to provide such notification within one (1) business day of receipt of the rejected entry;
3.1.8 Prompt notification of Client of any Returned Items. Paysafe shall use reasonable efforts to
provide such notification within six (6) business days of receipt of the Returned Item;
3.1.9 Issuance of a user name and password to access Paysafe’s Web-based interface.
3.2 Notwithstanding the above, Paysafe maintains the right to decline to process any Data or
3.3 Nothing herein grants the Client any rights whatsoever in any of Paysafe’s transaction or other
software other than a limited, non-exclusive, non-transferable license for use subject to the terms
and conditions of this Agreement and as Paysafe otherwise may direct, and any use thereof by the
Client beyond the requirements of the Processing Services shall be subject to a separate written
3A. LIMITED AGENT
3A.1 The Client hereby appoints Paysafe as the Client’s limited agent solely for purposes of
collecting payments received through the Processing Services from consumers, and remitting
refunds related to purchases of the Client’s services to consumers, on behalf of the Client.
Notwithstanding anything herein to the contrary, the Client acknowledges and agrees that payment
made by a consumer to Paysafe acting on behalf of the Client pursuant to the authority granted
herein shall be considered the same as payment made directly to the Client, and the Client shall
have no recourse against any consumer for any amounts received from such consumer through the
Processing Services by Paysafe in connection with such consumer’s purchase of the good or
service, as applicable, from the Client. The foregoing sentence shall survive the termination or
expiration of this Agreement. Notwithstanding anything contained herein to the contrary, Paysafe
disclosures or notices that Paysafe may deem necessary or prudent in its sole discretion. In
accepting appointment as the limited authorized agent of the Client, Paysafe assumes no liability for
any acts or omissions of the Client.
3A.2 Client shall make reasonable efforts to disclose to consumers, where appropriate, that the
services that provide the consumers with the ability to pay for the goods or services from the Client
using the Processing Services are provided by Paysafe on behalf of the Client as its limited
4. FEES AND RESERVES
4.1 In consideration for Processing Services the Client agrees to pay to Paysafe the following nonrefundable fees:
4.1.1 All fees as indicated in the Application;
4.1.2 For any Returned Items that exceed NACHA thresholds, a Fine of up to $35 for each such
returned transaction may be assessed by Paysafe, its sponsoring ODFI, or the NACHA governing
4.1.3 Should the Client be deemed to have violated the terms of Schedule B, Client shall pay
Paysafe the Fine as indicated therein;
4.1.4 Any other charges or fees imposed from time to time by the Clearing Houses or banks or other
third parties for handling Electronic Checks; and
4.1.5 For each wire transfer received from Paysafe the amount specified in the attached Application.
4.2 The Client shall also be obliged to:
4.2.1 reimburse Paysafe for all credits issued by Paysafe on behalf of the Client; and
4.2.2 reimburse Paysafe for all Returned Items and pay all Fines related to Returned Items.
4.3 Client hereby authorizes Paysafe to deduct from the Remittances the amounts owing under
Sections 4.1 and 4.2 above. In the event that the Remittances are insufficient to pay the amounts
owing by the Client to Paysafe, the Client shall pay the balance thereof within seven (7) business
days following receipt of Paysafe’s notice for such amount.
4.4 Paysafe is authorized to establish a reserve amount (the “Reserve Amount”) in connection with
the Processing Services provided hereunder. The Reserve Amount shall be maintained in full by
Paysafe for the term of this Agreement and for a period of seven (7) months thereafter. Thereafter,
Paysafe shall pay to the Client any amounts remaining out of the Reserve Amount that were not
used to offset any Obligations due to Paysafe in connection with any account, such Obligations
including but not limited to Reserve Amount Expenses.
4.4.1 The Parties agree that the purpose of the Reserve Amount is to ensure Paysafe’s recovery of
any liabilities owed it or reasonably anticipated to be owed to it by the Client pursuant to this
Agreement including, without limitation, all applicable fees provided for in Section 4 hereof, and
Reserve Amount Expenses for any account, transaction or otherwise arising from this Agreement.
4.4.2 The Parties agree that the Remittances shall be used to fund and replenish the Reserve
Amount. Paysafe shall withhold amounts from the Remittances so as to maintain a balance in the
Reserve Amount consistent with the Reserve Amount set forth in the Application.
4.4.3 Paysafe, in its sole discretion, may amend the Reserve Amount at any time following the six
(6) month anniversary of the Effective Date. Notwithstanding any provision to the contrary in this
Agreement, any new Reserve Amount would take effect immediately upon the Client’s receipt of
written notice of such new rate from Paysafe.
4.4.4 On the first business day of the seventh month after the Effective Date, and on that day of
every month during the term thereafter, the reserves generated from the first month of operation
(and, thereafter, from the first remaining month) will be forwarded to the Client on a rolling basis, net
of any amounts in any Account offset pursuant to this Agreement, including without limitation all
Reserve Amount Expenses.
4.4.5 For the avoidance of doubt, Paysafe shall have the right, in its sole discretion and at any time
without notice, to withdraw and make use of any and all amounts from the funds comprising the
Reserve Amount. Interest that accrues on the amounts comprising the Reserve Amount (if any) shall
belong to, and be retained by, Paysafe.
4.4.6 Client’s right in respect of the Reserve Amount is solely a contractual right in a running account
to payment of the ultimate balance found due (if any), after any offsets under or in accordance with
this Section 4.4 have been made.
4.5 Paysafe is authorized to establish a security deposit account (the “Security Deposit Account”) in
connection with the Processing Services hereunder in the name of Paysafe. The Security Deposit
Account shall be maintained by Paysafe for the term of this agreement and for a period of seven (7)
months thereafter. Thereafter, Paysafe shall pay to the Client any amounts remaining in the Security
Deposit Account that were not used to offset amounts due to Paysafe under any other provision of
4.5.1 As security for the payment of the Obligations by the Client, the Client agrees to provide
Paysafe with a security deposit (the “Security Deposit”) for the Security Deposit Account in the form
and amount specified in the Application. Any existing Security Deposit and Security Deposit Account
shall remain in effect but under the terms of this Section 4.5, 4.5.2 and 4.5.3.
4.5.2 Interest that accrues on the amounts comprising the Security Deposit (if any) shall belong to,
and be retained by, Paysafe.
4.5.3 Paysafe shall have the right, in its sole discretion, to withdraw from the Security Deposit
Account any and all amounts owed to Paysafe hereunder should the Client fail to pay such amounts
within five (5) business days of the Client’s receipt of written notice of default from Paysafe.
4.6 As continuing and collateral security for the due and punctual payment of any and all amounts
now owing or which may hereafter become owing to Paysafe by the Client or for the satisfaction of
any amounts disbursed by Paysafe on behalf of the Client including, but not limited to, credits,
Returned Items, Fines, penalties and interest, under this Agreement (the “Obligations”), as same
may be amended, renewed, extended or supplemented, the Client hereby charges, mortgages and
hypothecates in favour of Paysafe, with effect as of and from this date, all right, title and interest of
the Client in and to the Remittances, Security Deposit and Reserve Amount and all funds therein
comprised. The Client undertakes not to grant to any other person any charge, mortgage,
hypothecary or other security interest of equal or superior rank to Paysafe’s in the Remittances,
Security Deposit or Reserve Amount. The Client further undertakes, upon notice by Paysafe and at
its expense, to execute and register such documents as may be necessary or desirable to perfect
Paysafe’s first-ranking security interest therein. To the extent applicable, in the case of any voluntary
or involuntary bankruptcy or insolvency petition or proceeding, Client acknowledges and agrees that
notwithstanding anything contained in this Agreement, the Remittances, Security Deposit or Reserve
Amount is separate and apart from the Client’s insolvency estate and Paysafe has a first priority
4.7 Paysafe shall have the right to immediately withdraw from the Reserve Amount any and all
amounts owed to it hereunder without notice or demand. Paysafe shall have the additional right to
immediately withdraw from the Security Deposit any and all amounts owed to it hereunder.
Paysafe’s rights to sums owed to it by Client pursuant to this Agreement shall in no way be limited
by the balance or existence of the Reserve Amount or the Security Deposit. Paysafe’s rights with
respect to the Reserve Amount and the Security Deposit shall survive the termination of this
4.8 All interest which may accrue in respect of the Reserve Amount and Security Deposit shall be for
the sole account of Paysafe.
4.9 As amounts become payable to either party under this Agreement, and unless otherwise agreed
in writing, the party making the payment shall do so by facilitating a wire transfer to a pre-designated
account stipulated by the other party.
4.10 Either party may change or modify its pre-designated account(s), except that any change or
modification by Client to its pre-designated account(s) requires prior written consent of Paysafe,
which may be withheld in its sole discretion.
4.11 The Client shall be responsible, in addition to the amount mentioned above, for the payment of
any and all applicable sales or other taxes due upon the Electronic Check Transactions and the fees
4.12 Notwithstanding Section 3.1.1, Paysafe shall have the right to limit or cease processing credit
requests (i) should in Paysafe’s sole determination the Client’s Reserve Amount and Security
Deposit not be adequately funded; or (ii) if Paysafe has a concern about the volume of activity in the
account; or (iii) if the Client is in overdraft with Paysafe; or (iv) for any other valid reason.
4.13 Paysafe reserves the right to amend the fees charged under Section 4.1 at its sole discretion
and at any time following the six (6) month anniversary of the execution of this Agreement. The new
fees will take effect upon a simple notice to the Client in accordance with Section 11.
4.14 Paysafe reserves the right to increase the Reserve Amount withheld from Remittances under
Section 4.4 should Paysafe in its sole discretion deem the risk of Client’s account to have materially
5. INDEMNIFICATION AND LIMITATION OF LIABILITY
5.1 The Client and the Guarantor (as hereinafter defined) shall jointly and severally defend and hold
harmless Paysafe against and in respect to any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties and
reasonable attorney fees that Paysafe shall incur or suffer, that arise, result from, or relate to any
breach of or failure by the Client to perform any of its representations, warranties, covenants or
agreements in this Agreement or in any schedule, supplemental agreement, appendix or other
instrument furnished or to be furnished to Client under this Agreement.
5.2 Paysafe’s liability to Client with respect to any Electronic Check Transaction shall not exceed the
amount represented by the transaction record in connection with such Electronic Check Transaction,
less the applicable fees payable to Paysafe hereunder.
5.3 ALL WARRANTIES EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE OF
THE PROCESSING SERVICES OR OF ANY OTHER SOFTWARE, HARDWARE OR SERVICES
PROVIDED BY PAYSAFE HEREUNDER ARE HEREBY DISCLAIMED BY PAYSAFE, ITS
AFFILIATES, AGENTS AND LICENSORS. IN ADDITION, PAYSAFE, ITS AFFILIATES, AGENTS
AND LICENSORS SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, PUNITIVE, LIQUIDATED OR OTHER INDIRECT OR EXTRA-CONTRACTUAL
DAMAGES IN ANY WAY CONNECTED WITH OR ARISING OUT OF THE USE OF THE
PROCESSING SERVICES OR ANY OTHER SOFTWARE, HARDWARE OR SERVICES
PROVIDED BY PAYSAFE HEREUNDER.
5.4 Paysafe shall use commercially reasonable efforts to perform the Processing Services provided
however, Paysafe, its affiliates, agents or licensors shall not be liable for any loss resulting from the
activities of Paysafe’s service providers, the Client or the Client’s consumers, nor from any
erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption
or failure to perform hereunder due to any circumstances beyond Paysafe’s reasonable control
including, without limitation, acts of god, fire, explosion, earthquake, riot, war, sabotage, accident,
embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other
interconnect services or in electronic or mechanical equipment. Paysafe’s obligations hereunder
shall be suspended during any of the foregoing circumstances, which suspension shall not be a
cause for termination of this Agreement by the Client.
6. TERM AND TERMINATION
6.1 This Agreement shall be effective commencing on the Effective Date until the first anniversary of
the Effective Date, and thereafter shall be renewed automatically for additional consecutive three (3)
month periods, unless earlier terminated in accordance with the terms of Sections 6.2 to 6.4 hereof.
6.2 Notwithstanding Section 6.1, Paysafe shall have the right to terminate this Agreement
immediately in the event:
6.2.1 of breach by the Client of its representations, warranties, covenants or other obligations under
6.2.2 that the Client is delinquent in any payment hereunder ten (10) days after the same has
6.2.3 the Client assigns this Agreement to any party without the consent required under Section
6.2.4 the Client makes an assignment for the benefit of its creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, files a petition or applies to any tribunal for any receiver, trustee,
liquidator or sequestrator of any substantial portion of its property, commences any proceeding
under any law or statute of any jurisdiction respecting insolvency, bankruptcy, reorganization,
arrangement or readjustment of debt, dissolution, winding-up, composition or liquidation, or
otherwise takes advantage of any bankruptcy or insolvency legislation whether now or hereafter in
effect, or if any receiver, trustee, liquidator or sequestrator of any substantial portion of its property is
6.3 Paysafe may also terminate this Agreement without cause upon twenty (20) days’ written notice
6.4 Notwithstanding Section 6.1, Client may terminate this Agreement, with or without cause, upon
thirty (30) days’ written notice to Paysafe.
6.5 Upon any termination of this Agreement, the Client shall immediately discontinue the use of all of
the Processing Services and the license granted under Section 3.3 shall terminate. All provisions
regarding indemnification, representations, warranties, liability and limits thereon and Confidential
Information shall survive indefinitely or until the expiration of any time period specified elsewhere in
this Agreement with respect to the provision in question, and termination of this Agreement shall not
relieve the Client of its obligations to pay accrued fees.
6.6 Upon any termination of this Agreement, Paysafe shall retain, as security for the payment of the
Obligations, each of the Security Deposit and the Reserve Amount as well as any other amounts in
the Client’s account for a full seven (7) month period from the date of termination.
7.1 The Client agrees that it will:
7.1.1 not use any of the Confidential Information for purposes other than this Agreement;
7.1.2 not disclose to any third party any of the Confidential Information; and
7.1.3 will retain in strictest confidence all Confidential Information except in the performance of its
obligations under this Agreement.
7.2 The Client agrees that it will not issue any press releases or similar publicity statement regarding
this Agreement without the prior written consent of Paysafe or as required by law.
7.3 Termination of this Agreement shall not release the Client from its obligations under Sections 7.1
7.4 Paysafe agrees that it will retain in strictest confidence the names and other personal information
about the Client’s consumers unless such disclosure is required by competent authority.
7.5 Termination of this Agreement shall not release Paysafe from its obligations under Section 7.4.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CLIENT
8.1 The Client hereby covenants to Paysafe that it will:
8.1.1 offer for sale through its Web site only products and services that are available for delivery in
the normal course of the Client’s business, based upon the type of product or service being offered,
which were pre-approved by Paysafe in the Application;
8.1.2 offer products or services for sale only if the Client has legitimate rights to market and sell such
products or services;
8.1.3 fully comply with the rules imposed by the Financial Institutions from time to time and as
currently specified in Schedule A;
8.1.4 submit to Paysafe in writing, for Paysafe’s written consent, any changes or modifications to the
Information, including but not limited to, changes in the products and services available through the
Client’s Web site or changes to any of Client’s policies;
8.1.5 only use the Processing Services for transactions for which Client has received full express
and proper authorization from the consumer for such transaction, including full express and proper
authorization and consent from the consumer for Paysafe and its affiliates, agents, suppliers, and
subcontractors to use personal information provided by consumer to obtain credit reports from
authorized credit reporting agencies, in accordance with all applicable laws and regulations and the
NACHA Operating Rules; Client further represents, warrants and covenants that it has obtained all
required consents from consumers in respect of their personal information to be accessed, collected,
used or transferred by Paysafe in providing the services under this Agreement; and it has read,
at:https://www.paysafe.com/paysafegroup/privacy-policy/ . In addition, to the extent that Client has
been introduced to Paysafe and entered into this Merchant Agreement through a referral partner of
Paysafe or a software platform provider integrated to Paysafe (collectively referred to as the
“Platform Partner”), Client acknowledges and agrees that Paysafe may share transaction information
with the Platform Partner on a need to know basis.
8.1.6 only use the Processing Services for transactions that are in compliance with all federal, state
and local laws and regulations, and the NACHA Operating Rules; and
8.1.7 only use the Processing Services for transactions with consumers who can form legally binding
contracts under applicable laws and regulations. Without limiting the scope of this Section 8.1.7,
consumers must be at least 18 years of age or the age of majority in the jurisdiction in which the
consumer is domiciled, whichever is greater.
8.1.8 Once the Client has received confirmation from Paysafe of a consumer’s payment, the Client
covenants to deliver, perform, or allow the consumer access to the purchased service or good of the
Client. Consumer access to the purchased good or service shall be, as the case may be, immediate
upon receipt of the aforementioned payment confirmation, or within a longer time frame as specified
in the terms of the agreement(s) or policies between the Client and the consumer, and shall be
provided by the Client as if all amounts due from the consumer to the Client related thereto were
received by the Client, regardless of whether such amounts are ultimately remitted to the Client by
Paysafe. The foregoing obligation of the Client shall survive the termination or expiration of this
8.2 The Client hereby represents and warrants to Paysafe that:
8.2.1 it will maintain the value and reputation of Paysafe to the best of its reasonable ability;
8.2.2 it will advise Paysafe promptly in writing of any errors in the Processing Services;
8.2.3 it will conduct its business affairs in accordance with the terms and intent of this Agreement,
and in compliance with all applicable government laws, including but not limited to compliance with
Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. Part 310) and the Telephone
Consumer Protection Act, and regulations and the NACHA Operating Rules or other rules or
guidelines as set out by Paysafe from time to time;
8.2.4 it will manage its business in such a way as to ensure that Returned Items do not exceed a
reasonable amount of the total value of its business;
8.2.5 it will immediately replenish its account at Paysafe should the balance fall below acceptable
levels as determined by Paysafe;
8.2.6 it will not use the Processing Services in connection with any illegal or fraudulent business
8.2.7 it will not permit or authorize any other person to use the Processing Services;
8.2.8 the Information will not be changed or modified in any way without the prior written consent of
8.2.9 In respect of every transaction, the consumer shall have accurately provided all required
information necessary to authorize and process the transaction;
8.2.10 the date of the Electronic Check shall accurately coincide with the date of the submission of
the transaction to Paysafe for processing and the date the transaction actually occurred;
8.2.11 the amount of the Electronic Check entered into the Paysafe system for processing and the
Electronic Check amount authorized by the consumer shall agree;
8.2.12 in respect of every transaction, Client has no reason to question or have notice of any fact,
circumstance or defense which would impair the validity or collectability of the consumer’s obligation
or relieve the consumer from liability for the Electronic Check;
8.2.13 each Electronic Check must be a first party personal or company check for which the
consumer has authorized payment to Client drawn by electronic means on a United States financial
institution for the purchase of goods or services from Client; and
8.2.14 each Electronic Check represents the obligation of the consumer for goods or services
actually sold or rendered by Client for the actual price of such goods or services (including tax and
shipping) and does not involve any element of credit for any purpose.
8.3 The Client acknowledges to Paysafe that the parties are independent contractors and that
nothing herein shall be construed as creating a joint venture or partnership between them. For
greater certainty, the Client acknowledges that Paysafe is not involved in the Client’s business.
8.4 The Client agrees that at any time, and from time to time, during the term of this agreement and
only with regard to the Paysafe services, Paysafe shall have the right to post or to require posting of,
without any charge, a banner, graphic or logo of Paysafe on the application/deposit page of internet
Web site(s) incorporating the Processing Services, advertising Paysafe’s and its affiliates’
businesses. Paysafe’s obligation to provide Client with the Processing Services are conditional on
Client undertaking to:
8.4.1 Identify Client Designated Account;
8.4.2 Provide Paysafe with the Data in a timely manner and as requested by Paysafe from time to
8.4.3 Co-operate with Paysafe to permit Paysafe to provide the Processing Services;
8.4.4 Follow procedures, written or oral, as provided to Client by Paysafe from time to time;
8.4.5 Adhere to all applicable laws and regulations;
8.4.6 Review all statements issued to Client by Paysafe and inform Paysafe in writing of any errors
or discrepancies within five (5) days of Client receipt of same;
8.5 Client hereby irrevocably pre-authorizes Paysafe to:
8.5.1 issue debits for payment from any Client Designated Account to Paysafe for any amount due
from Client to Paysafe in accordance with the terms hereof; and
8.5.2 issue debits for payment from Client Designated Account to pay for Fees, Returned Items,
penalties and Fines; such rights to exist during the term of this Agreement and to continue for one
hundred and eighty (180) days thereafter.
8.6 Upon Client execution of this Agreement Client authorize Paysafe to undertake the appropriate
credit and risk assessments on Client.
9.1 As a primary inducement to Paysafe to enter into this Agreement, the individuals listed as
“Guarantor 1” and “Guarantor 2” on the attached Application (the “Guarantors”), being all the
registered and beneficial shareholders of the Client or any other party identified as a Guarantor, by
signing this Agreement, jointly and severally, unconditionally and irrevocably, guarantee the
continuing full and faithful performance and payment by Client of each of its duties and obligations to
Paysafe pursuant to this Agreement, whether before or after termination or expiration and whether or
not any of the Guarantors has received notice of any amendment. If Client breaches this Agreement,
Paysafe may proceed directly against any or all of the Guarantors or any other persons or entity
responsible for the performance of this Agreement, without first exhausting its remedies against any
other person or entity responsible therefore to it, or any security held by Paysafe.
10.1 Except as otherwise expressly stated to the contrary, Paysafe may amend this Agreement at
any time by written notice to Client of any amendment at least thirty (30) days prior to the effective
date of the amendment, which amendment shall not (without Client’s written consent) retroactively
affect or modify the fees, reserves or transactions occurring prior to the effective date of the
amendment. The amendment shall become effective on the date specified by Paysafe unless
Paysafe receives Client’s notice of termination of this Agreement pursuant to this Section 10.1
before such effective date.
11.1 Written Notices. All written notices and other written communications required or permitted
under this Agreement must be either personally delivered, sent by prepaid, registered mail or sent by
email, charges (if any) prepaid, addressed as follows:
A) If to Paysafe Merchant Services Corp.:
3500 de Maisonneuve Blvd. W, Suite 700
Montréal, Québec, H3Z 3C1
Attn: Legal Department
B) If to Client: At the email address or address provided as the billing address and to the contact
listed on the Merchant Application.
Any written notice delivered to the party to whom it is addressed will be deemed to have been given
and received on the day it is so delivered at that party’s address, provided that (i) it is so delivered
before 5:00 p.m.; and (ii) if that day is not a business day then the written notice will be deemed to
have been given and received on the next business day. Any written notice transmitted by email will
be deemed to have been given and received on the day on which it was transmitted (but if the
written notice is transmitted on a day which is not a business day (or after 5:00 p.m.), the written
notice will be deemed to have been received on the next business day). Any written notice given by
registered mail will be deemed to have been received on the fifth business day after which it is so
mailed. Merchant acknowledges and agrees that written notice and other written communications
required or permitted to be given by Paysafe under the Merchant Agreement shall be properly given
if contained in the on-line statement provided from time to time to Merchant by Paysafe. For
purposes of this Section 11.1, references to a time of day shall mean that time of day in the
jurisdiction of the receiving party (e.g., “5:00 p.m.” shall mean 5:00 p.m. in the jurisdiction of the
receiving party) and references to “business day” shall be mean a day other than a Saturday,
Sunday or statutory holiday in the jurisdiction of the receiving party.
12. RETENTION OF ELECTRONIC CHECK AUTHORIZATION RECORDS
12.1 Client shall cause the consumer to provide a verbal authorization for each Electronic Check
Transaction conducted by telephone (“Telephone Transaction”) and an electronic authorization for
each transaction conducted over the Internet (“Internet Transaction”) submitted to Paysafe for
processing pursuant to this Agreement. In connection with the Telephone Transactions, Client shall
either make a tape recording of the consumer’s verbal telephone authorization or Client shall provide
a written confirmation notice to the consumer of such verbal authorization in Paysafe’s required
format within three (3) days of the Electronic Transaction. Client shall maintain a copy of (i) each
such tape recording authorization or, alternatively, the written confirmation notice provided to the
consumer of the consumer’s verbal authorization for Telephone Transactions, and (ii) said electronic
authorization for Internet Transactions for a minimum period of two (2) years from the date of the
transaction or for the period specified by the NACHA Operating Rules, whichever is longer
(collectively the “Authorization Documentation”).
12.2 Within 7 days of Paysafe’s request therefor, Client shall deliver to Paysafe a physical or
electronic copy of the Authorization Documentation for any Telephone Transaction and/or Internet
12.3 Client, upon reasonable notice and during normal business hours, shall permit Paysafe to audit
Client for its compliance with this Section 12.
12.4 Notwithstanding anything to the contrary herein, if Paysafe has agreed to provide the written
confirmation notice referred to in this Section 12 on behalf of Client to the consumer, Client shall not
be responsible for maintaining such records nor shall Client be considered in breach of such
13. CREDIT LAW COMPLIANCE
13.1 Client certifies that: (i) it has a legitimate business need in connection with a transaction
initiated by or with the consumer for the information provided by Paysafe under this Agreement
regarding such consumer; and (ii) the information provided by Paysafe will only be used for
permissible purposes as defined in the Fair Credit Reporting Act and applicable state and federal
laws, with the exception that the information will not be used for employment purposes, and will not
be used by Client for any purpose other than one transaction between Client and the consumer
occurring on the date of the submission of the transaction to Paysafe for processing. Neither Client,
nor its agents or employees, shall disclose the results of any inquiry made to Paysafe except to the
consumer about whom such inquiry is made and in no case to any other person outside Client’s
organization. If Client decides to reject any transaction, in whole or in part, because of information
obtained from Paysafe, Client agrees to provide the consumer with all information required by law
14.1 Subject to the payment of the minimum monthly fee as indicated in the Application, Client’s use
of Paysafe’s services hereunder are completely at will and non-exclusive.
14.2 This Agreement together with its Schedules and any supplemental agreements, addenda and
appendixes constitutes the entire agreement between the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed
or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
14.3 The Client may not assign this Agreement, or any rights hereunder, directly or by operation of
law, without the prior written consent of Paysafe which consent may be withheld for any reason in
Paysafe’s sole discretion. For purposes of this Agreement, assignment shall include, but not be
limited to, transfer of control of the Client, any ownership change which results in a new majority
owner and any change in the jurisdiction of incorporation of the Client.
14.4 The Client shall be liable for and shall indemnify and reimburse Paysafe for any and all
attorneys’ fees and other costs and expenses paid or incurred by Paysafe in the enforcement of this
Agreement, or in collecting any amounts due from the Client hereunder, or resulting from any breach
of any of the terms or conditions of this Agreement.
14.5 All remedies of either party hereunder are cumulative and may be exercised concurrently or
separately. The exercise of any one remedy shall not be deemed to be an election of such remedy
and shall not preclude the exercise of any other remedy. No failure on the part of either party to
exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such
right or remedy.
14.6 If any provision of this Agreement is held invalid or unenforceable by any court of final
jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to
remain fully valid, enforceable and binding on the parties.
14.7 The subject headings of the paragraphs and subparagraphs of this Agreement are included for
convenience only and shall not affect the construction or interpretation of any of its provisions.
14.8 All disputes arising between the parties hereto in connection with the Agreement, including its
existence, validity or termination, shall be resolved through binding arbitration under the Rules of the
American Arbitration Association or, if mutually agreed, by another recognized arbitral body, in either
case to take place in Montreal, Canada before a single arbitrator with the proceedings to be
conducted in English. This Agreement shall be governed by and construed under the laws of the
State of New York, without regard to principles of conflict or choice of law of the State of New York
or any other jurisdiction.
14.9 All amounts referred to in this Agreement are in United States funds.
14.10 The Parties hereto intend that this Agreement is not an executory contract and that each Party
hereto has fully performed its obligations hereunder. In the event that Client files a petition under the
bankruptcy laws of the United States, or the equivalent of another jurisdiction, or that an involuntary
petition shall be filed against Client, the parties hereto intend that Paysafe shall be protected in the
continued enjoyment of its rights hereunder to the maximum feasible extent including, without
limitation, if it so elects, the protection conferred upon licensees under 11 U.S.C. § 365(n), any
successor provision or any similar provision of any applicable law.
Merrick online Merchant Agreement + echeck (Version 05/2020)