Definitions: Capitalized terms as used in this agreement ("Agreement") shall have the meanings as set forth in the accompanying Merchant Application or as set forth herein.
WHEREAS, National Bank of Commerce, Berkeley, Illinois ("Bank") is engaged in the processing of transactions which include, but is not limited to the processing of and
providing for the payment of credit card charges created by cardholders with merchants, and
WHEREAS, Bank has engaged the services of Landmark Merchant Solutions, LLC, an independent service organization and member service provider to Bank ("MSP") to act on
behalf of Bank for all purposes of this Agreement (with the exception of funds transfers and settlement), and MSP is a party to this Agreement with all rights and benefits
accruing to Bank to the MSP, such that all references to Bank herein also include MSP, and
WHEREAS, Merchant hereby affirms, represents and warrants to Bank that it is engaged in the lawful business shown on the front of the Merchant Application and is duly
licensed under the laws of the State, County and City in which Merchant is located to conduct such business; and Merchant currently accepts or desires to accept cards for the
purchase of goods and services through transactions with cardholders; and
WHEREAS, Merchant warrants that Merchant, including any owners, officers or predecessor businesses of Merchant or any businesses which they have owned, managed or
operated have not been terminated from settlement of card transactions by any other financial institution or credit card processor or has been determined to be in violation of the
rules and regulations of Bank, MasterCard, VISA or any other card association or network ("Rules").
NOW, THEREFORE, in consideration of the representations, covenants and promises made herein and in the accompanying Merchant Application, the parties hereto agree as
follows:
1. Agreement. This Agreement, the Merchant Application and all other documents executed or delivered in connection herewith by Merchant or incorporated herein by reference
shall constitute the entire agreement between Bank and Merchant. The information disclosed in the Application is correct and Merchant will advise Bank in writing within five
business days of any changes thereto. If the Bank sponsors Merchant into any card program, such sponsorship shall extend only so long as the term of this Agreement. The
addition hereto of supplemental locations of Merchant requires the prior approval of Bank. Such locations must be owned and operated by the same entity, must be doing
business under the same name, must be operating the same type of business under the same procedures and upon such approval will be subject to the terms hereof. Merchant
understands and agrees that (i)this Agreement has been facilitated by MSP, (ii) the functions and services of Bank (with the exception of funds transfers and settlement) will be
provided by the MSP, (iii) MSP is a party hereto and beneficiary of this Agreement and may directly enforce this Agreement with Merchant and (iv) references to Bank in this
Agreement shall also relate to and include MSP in conferring the benefits of this Agreement upon both Bank and MSP. Merchant also understands and agrees that Bank or MSP
may provide processing and services through arrangements with third parties.
2. Merchant's Authority. Merchant has all licenses necessary to conduct business. Merchant specifically warrants to Bank that Merchant has taken all necessary action and
has authority to enter into the Agreement with Bank and that the person(s) signing for or on behalf of Merchant are specifically authorized and directed to do so by Merchant.
This Agreement constitutes the legal, valid and binding obligation of Merchant, enforceable in
accordance with its terms.
3. Promotion. Merchant agrees to adequately display the most current card emblems and materials to inform the public that cards will be honored. Merchant shall only indicate
that cards are accepted and shall not indicate that any Association endorses Merchant, its products or services. Merchant shall make no other use of the marks without Bank's
prior written consent. Any use thereof shall be in accordance with the Rules. Merchant will discontinue use thereof upon request and in any event, upon termination of this
Agreement.
4. Acceptance of Cards. Merchant agrees to honor, without discrimination, all valid cards when properly presented as payment by a cardholder or other authorized user upon
obtaining authorization for each transaction in advance from the authorization center in accordance with the terms and conditions of this Agreement. However, on and after
January 1, 2004, Merchant may elect not to accept Visa or MasterCard branded debit cards, provided that to make such election effective, Merchant must provide Bank with
prior written notice thereof, which notice shall be effective unless and until Merchant provides written notice to the contrary to
Bank.Merchant will submit all authorized card
transactions for its business exclusively to Bank. Merchant shall not establish minimum or maximum transaction amounts as a condition for honoring cards. Merchant shall
comply with identification and security procedures including comparing embossed account numbers to numbers displayed, comparing signatures on the sales draft to the
signature on the card, comparing encoded account numbers displayed with the account number embossed on the card, compare the first four printed and embossed numbers on
the card, check holograms and expiration dates, follow any terminal prompts, compare photographs on the card to the person and following other card security features required
by the Rules or as specified by Bank. Contact the authorization provider if there is any discrepancy. If a card is not signed, perform an authorization request, ask for additional
identification and require the card to be signed.
5. Completion of Transactions. Merchant agrees to complete all transactions with a cardholder or other authorized user in accordance with the provisions of this Agreement and
the Rules in effect and as the same may be amended from time. The Rules are incorporated by reference and made a part of this Agreement. Merchant shall not impose the
requirement upon cardholders to provide any personal information such as a home or business telephone number, a home or business address, or driver's license as a condition
for honoring cards, unless deemed necessary because of suspicious circumstances or as is otherwise required by the authorization center or the Rules, except for debit card
transactions (Pueblo Bank and Trust is the debit sponsor) and as specifically authorized by the Rules. Merchant shall never utilize the credit available through individual cards to
provide cash advances to cardholders. Merchant may not process or submit any transaction representing the financing of an existing obligation whether previously owed to
Merchant arising from the dishonor of a check or otherwise. Merchant shall not submit a transaction which is an attempt to collect a chargeback. Such actions will subject the
Merchant to immediate termination of this Agreement and all funds of Merchant, including those in Merchant's Designated Account, may be placed on hold pursuant to the
provisions of Paragraph 17 hereof. Merchant shall require the cardholder to sign the sales draft and shall give the cardholder a true copy of the sales draft including the total
transaction amount at the time of any sales transaction. The sales draft may not be altered after the transaction is completed. A card transaction shall not be completed if the
card used is not yet in effect, has expired or which Bank has advised Merchant not to honor. Authorization responses shall be recorded on the sales draft.
6. Point of Sales Devices. (a) Merchant agrees to utilize and maintain, at Merchant's expense, POS terminal(s) and related equipment approved by Bank for all transactions, in
a format and medium of transmission acceptable to Bank. Merchant hereby authorizes payment for all such equipment leased or purchased by Merchant to be made to the
equipment seller, lessor or other designated entity, through an Automated Clearing House (ACH) electronic deduction from Merchant's Designated Account on the due date any
payment or payments. Bank has no responsibility for any POS terminal or related equipment, (b) Merchant shall record each transaction by "swiping" the card through the POS
terminal whenever possible. Merchant acknowledges that each outlet, retail location, or business entity will have its own POS terminal and Merchant identification number.
Merchant understands that sales completed at one location cannot be processed through a terminal at another location, (c) In the event of breakdown of the POS terminal or
other system failure, Merchant shall immediately contact the designated Merchant Help Desk. In such case, Merchant shall imprint each sales draft with the embossed data
from each card and Merchant's plate on an imprinter and obtain the cardholder's or other authorized user's signature which must match the signature on the card. If Merchant
uses an electronic printer connected to a POS terminal, Merchant must still obtain the cardholder's or other authorized user's signature on the printed sales draft. As soon as a
POS Terminal is operable, Merchant will enter all transactions engaged in during such period. Failure to comply with these requirements may result in a chargeback. (d) Merchant
is responsible for all telephone and communication fees and charges with respect to POS terminals.
7. Surcharges and Taxes. Merchant shall not impose any surcharge on card transactions. Any tax required to be collected by Merchant, must be included in the total
transaction amount and shall not be collected separately in cash. Merchant is responsible for the payment of all applicable taxes with respect to the transactions contemplated
by this Agreement, including for any equipment.
8. Sales Drafts. Merchant agrees to swipe each card and prepare a sales draft in legible form for each transaction. All items, goods and services purchased in a single
transaction shall be included in the total amount on a single sales draft. Merchant shall legibly type or print the following information on each sales draft: (a) the cardholder's
name or name of other authorized user, if applicable; (b) the cardholder's account number and expiration date; (c) Merchant's correct name and address of business; (d) the date
of the transaction; (e) the total cash price of the sale (including all applicable state, federal or local surcharges and taxes); or (i) the amount to be charged if a partial payment is
made in cash or by check; or (ii) the amount to be charged if a partial payment is made as a deposit or as the balance owing after a deposit has been made; (f) a brief
description of the goods and services; (g) the words "deposit" or "balance" if full payment is to be made in this manner at different times on different sales draft; (h) the
authorization code number from the authorization center; and (i) for telephone order transactions, the designated "TO" and; for mail order transactions, the designation "MO", and
for preauthorized transactions, the designation PO; and for recurring transactions, the phrase "Recurring Transaction" in each instance shall be typed or printed on the signature
line. In such case, Merchant will take reasonable steps to verify card information. Merchant warrants the cardholder's identity whether or not authorization is received. Merchant
shall not deliver goods or perform services covered by an authorization after receiving notification that the authorization is cancelled or that the card is not to be honored.
Merchant shall deliver to the cardholder a true and completed copy of the sales draft. Failure to comply with the above requirements will, in addition to subjecting the transaction
to chargeback and other penalties, will subject Merchant to immediate termination under Paragraph 21, indemnification of Bank by Merchant under Paragraph 24 and the
establishment of a Chargeback Reserve Account under Paragraph 17.
9. Authorizations; Retention of Cards. Merchant understands and acknowledges that its floor limit shall be Zero and that ALL TRANSACTION MUST BE AUTHORIZED in
advance through the authorization center. Merchant acknowledges and agrees that authorization for any card transaction only indicates the availability of credit at the time of
authorization, does not confirm that the person presenting the card is the rightful cardholder and is not a guaranty that any card transaction will not be subject to chargeback. If
authorization is denied, the transaction shall not be completed and Merchant shall follow instructions from the authorization center, including recovery of cards by reasonable and
peaceful means, without injury. Merchant shall retain or retrieve cards, as required by the Rules, which are expired or for which reasonable grounds exist to believe that such
cards are counterfeit, fraudulent or stolen. Merchant shall type or print legibly on the applicable sales draft the authorization approval code evidencing each authorization
obtained by Merchant. Merchant shall also obtain the expiration date of each card and forward the expiration date as part of each authorization inquiry to the authorization center.
In the event of terminal failure or communication error, notwithstanding anything to the contrary in Paragraph 20 below, Merchant agrees to obtain authorization according to voice
back-up procedures furnished by Bank at a cost (see Schedule of Charges) or such other cost as may be established by Bank from time to time. Any errors in transmission
shall be the responsibility of Merchant. Merchant understands and agrees that obtaining authorization does not constitute a guaranty of payment and does not release Merchant
of liability for chargebacks. If Merchant uses an authorization service other than designated by Bank. Bank shall not be responsible for any
authorizations obtained from such service.
10. Mail and Telephone Sales/Internet Sales. Merchant will not engage in the amount of any mail order, telephone order or internet sales in excess of that stated in the
Merchant Application without the prior express and written approval of Bank. Merchant will take reasonable steps to verify the authorized usage of the card number, requiring
cardholder names, account number and valid from and expiration dates. Address verification should be obtained for these transactions. Merchant understands that an
authorized mail or telephone or internet order does not constitute a guarantee of payment, only that the cardholder has available credit, and may be subject to dispute or
chargeback. For all non face to face (no card present) transactions, Merchant warrants that the customer conducting the transaction is the cardholder or an authorized user,
regardless of whether authorization has been received. Merchant further warrants that any website of Merchant is secure for card data and that any website conforms to the
business specified in the Merchant Application. Bank reserves the right, WITHOUT PRIOR NOTICE and at Bank'S SOLE DISCRETION, to establish a Chargeback Reserve
Account to fund chargebacks arising from mail or telephone or internet orders.
11. Settlement. Merchant understands and agrees to balance and settle each POS terminal daily except on days when Merchant's place of business is closed. Merchant agrees
to electronically submit sales no later than the day following the date of authorization. Sales submitted or settlement more than one day following after the date authorization
may be refused, become subject to chargeback or assessed an additional fee by Bank. Sales charged to a card issued by a foreign issuer may be assessed an additional fee.
Merchant acknowledges that all transactions between Merchant and Bank under this Agreement shall be treated as a single transaction and that all settlements are provisional
subject to the cardholder's rights under the Rules for disputing charges against the cardholder's account. In submitting transactions to Bank, Merchant endorses and assigns to
Bank all right, title and interest for such items with rights of endorsement. Bank has the right to receive payment on all transactions acquired and Merchant will not attempt to
collect any such transactions. If any payment is received, Merchant will hold it in trust for and promptly deliver to Bank.
12. Payment. Merchant acknowledges that this Agreement provides for provisional settlement of Merchant's transactions, subject to certain terms and conditions, fees, credit
transactions, contingent claims for chargebacks, adjustment and final settlement including but not limited to those enumerated herein. All payments to Merchant for legitimate
and authorized transactions shall be made by Bank through the ACH and shall normally be electronically transmitted directly to Merchant's Designated Account which Merchant
agrees to maintain. Merchant hereby authorizes Bank to initiate debit and credit entries to Merchant's Designated Account. This authorization shall continue in effect for at least
180 days after termination of this Agreement, or at Bank's discretion, for a longer period as determined by Bank in the exercise of reasonable discretion. Merchant shall confirm
to any depository institution holding the Merchant Designated Account of this authorization and direct such institution to comply with Bank's directions. Merchant understands
that payments with respect to a transaction date are transmitted by the end of the second Bank business day (for retail) and the fifth Bank business day (for mail order,
telephone order or Internet) following the day Merchant closes such transaction date batch provided that such transmission is before 5 p.m. Central Time, or such other time as
Bank shall designate unless Bank is investigating a transaction or activity for breach of warranty by Merchant or for other reasons. Other reasons may include (but not be
limited to) suspicious or unusual activity, material variance in the volume, nature of business or product of Merchant, variance in average ticket size or other transaction data,
variance from Application disclosures, excessive retrieval or chargeback requests or activity, failure to deliver products or services or foreign transactions. Bank may monitor
account activity and Merchant agrees that Bank may divert funds or suspend processing as a part of its account monitoring activity. If funds are diverted or processing
suspended, Bank may investigate activity and resolve it to its satisfaction. Bank shall have no liability for diversion of funds or suspension of processing. Bank will attempt to
notify Merchant if actions are taken, but Bank shall have no liability for any such actions taken by bank. Bank cannot guarantee and is not responsible for the timeliness with
which any payment may be credited by Merchant's bank. Merchant understands that due to the nature of the ACH and the electronic networks involved and the fact that not all
banks belong to an ACH, payment to Merchant can be delayed. In such cases, Merchant agrees to work with Bank to help resolve any problems in crediting Merchant's
Designated Account. In the event that a payment is rejected by Merchant's bank or fails to arrive within two (2) days (for retail) and five (5) days (for mail order, telephone
order or Internet) from the date of settlement due to problems beyond Bank's control, Bank may periodically wire transfer all funds due Merchant until the problem is corrected,
at Merchant's expense. Merchant agrees to pay the fees and charges specified in this Agreement and any fee schedule, including for equipment purchase or rental. All
payments to Merchant to be made for transactions submitted by Merchant may be made after first deducting therefrom the Discount Fee, Transaction Fees, credits,
chargebacks, reserves or other fees or charges for which Merchant is responsible pursuant to this Agreement, including the ACH Reject Fee specified in Section 26 hereof. All
charges and fees due to Bank under this Agreement may be deducted from incoming transactions or may be debited against Merchant's Designated Account at Bank's sole
discretion, without and further notice or demand. Bank may hold, setoff or retain funds to protect against amounts owed Bank or based on Merchant's financial condition. Bank
will not be liable for any dishonor of any item as a result of actions taken hereunder. Any account is subject to review, verification, audit and acceptance by Bank. Bank may
return any draft or transaction to Merchant for correction.
13. Draft and Data Storage Retrieval. The Rules require the presentation of sales and credit drafts to issuers upon request. Merchant shall be responsible for and establish a
system to store and maintain sales and credit drafts and data in such a manner so as to allow Merchant to forward same within twenty-four (24) hours of request, and Merchant
agrees to relinquish control and possession of all sales and credit drafts or data for any transaction to Bank or Bank's designated agent upon demand of Bank. Merchant
understands that failure to respond to such a retrieval request constitutes a violation of this Agreement and may result in a
chargeback, establishment of a Chargeback Reserve
Account under Paragraph 17 or immediate termination of this Agreement without prior notice to Merchant. Merchant agrees to preserve all records pertaining to sales drafts and
credit drafts for a least six (6) months from the date of transmission in original form and to retain original or microfilm copies for three (3) years from the date of the document,
and to promptly comply with all requests by Bank for production of said records. Merchant further agrees that Bank or its representatives may during normal business hours,
inspect, audit, and make copies of Merchant's books, accounts, records and files pertaining to any transaction and refunds or adjustments thereon. Merchant is not relieved of
the foregoing responsibilities even if transaction data is electronically captured.
14. Returns and Credits. Merchant shall maintain a fair policy permitting refunds, exchanges, returns and adjustments. If, with respect to any transaction, any goods are
accepted for return of any services are refunded, terminated or canceled or a price adjustment is allowed by Merchant and except where otherwise required by law or
governmental regulations, Merchant shall not make any cash refund to the cardholder during the term of this Agreement, but Merchant shall utilize a credit draft evidencing such
refund or adjustment. Merchant shall date each credit draft with the transaction date and include thereon a brief description of the goods returned, services canceled or
adjustment made and the amount of the credit, insufficient detail to identify the transaction. One completed copy of the credit draft shall be delivered to the cardholder at the
time of each return or cancellation of a transaction. The credit shall not exceed the amount of the original sales draft. The per item Transaction Fees will still be applicable.
Merchant shall not under any circumstances, during the term of this Agreement, issue cash for returns of goods or services where originally purchased in a transaction. With
proper disclosures at the time of the transaction, Merchant may (a) refuse to accept goods in return or exchange and refuse to issue a refund to a cardholder; (b) accept returned
goods in exchange for the Merchant's promise to deliver goods or services of equal value available from Merchant at no additional cost to cardholder or provide in store credit; or
(c) stipulate special circumstances agreed to by the cardholder. Proper disclosure shall deemed to have been given only if, at the time of the transaction, the following notice
appears on all copies of the sales draft in legible letters at least one-quarter (1/4) inch high and in close proximity to the space provided for the cardholder's signature stating "NO
REFUND" or "EXCHANGE ONLY" or "IN STORE CREDIT ONLY" or any special terms as applicable, or equivalent language.
15. Warranties By Merchant. Merchant warrants and agrees to fully comply with all federal, state and local laws, rules and regulations, as amended from time to time including
with respect to consumer protection and credit (and including without limitation the federal Truth in Lending Act and its implementing Regulation Z), and the Rules as to all activity
and card transactions. Merchant also warrants not to change the nature of its business as indicated on the Application submitted herewith or to modify the
ownership of the business without the prior written consent of Bank. As to each transaction presented to Bank for payment, Merchant specifically warrants that: (a) the sales draft is valid in form
and has been completed in accordance with the Rules, all applicable laws and all other applicable requirements; (b) Merchant has delivered goods to the cardholder or completed
the service described on the sales draft in accordance with Merchant's agreement with the cardholder; (c) each sales draft represents a bona fide direct sales transaction
between the Merchant and the cardholder in the Merchant's ordinary course of business and the sales draft shows the cardholder's indebtedness for the total amounts shown; (d)
the cardholder has no claim, defense, right of offset, or dispute against Merchant in
connection with the purchase of the goods or services and Merchant will provide adequate
services to cardholders and will honor all warranties applicable thereto; (e) Merchant has not charged cardholder any separate or additional fee(s) in connection with the
transaction other than as may be required by law. The foregoing shall not prohibit Merchant from extending discounts to customers paying by cash, check, or any other means,
other than by credit card; (f) Merchant warrants to Bank That each transaction was placed by a person who is the cardholder or other authorized user of the card; (g) all of the
Merchant's business location engage in the same or substantially similar business activity as that listed on the face of this Agreement or the Application; (h) the percentage of
mail and/or telephone order sales listed by Merchant is consistent at all of Merchant's locations; (i) Merchant offers no enticements or incentives to cardholders in connection with
card transactions for the sale of Merchant's products; (j) Merchant and its employees will not use their personal credit card on the Merchant POS terminal; (k) Merchant uses both
the name and address shown on the front of the Agreement on all sales drafts and does not use any other name; (l) Merchant has included all items of goods and services
purchased in a single transaction in the total amount on a single sales draft or transaction record (Merchant shall not "split tickets"). Merchant has not submitted duplicates of
any transaction; (m) no transaction is between a cardholder and an entity
other than Merchant. Merchant further warrants and agrees that it shall not, without the
cardholder's consent, sell, purchase, provide, transfer, lease or exchange card account information of any time, including without limitation, in the form of sales drafts, mailing lists, tapes, or
any other media obtained by reason of a transaction or otherwise, to any third party other than to Merchant's agent approved by Bank for the purpose of assisting Merchant in
its business, to Bank, the MSP, the respective card issuer or association or pursuant to lawful government demand. All media containing card account numbers must be stored
in an area limited to selected personnel until discarding and must be destroyed prior to or in connection with discarding in a manner that will render the date unreadable. Merchant
will not disclose and will keep confidential the terms and conditions of this Agreement.
16. Data Security (A) Safeguards. Merchant agrees to maintain appropriate administrative, technical and physical safeguards for all Customer Information. These safeguards shall (i) insure the confidentiality of Customer Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Customer Information; (iii) protect against unauthorized access to or use of Customer Information that could result in substantial harm or inconvenience to any customer; and (iv) properly dispose of all Customer Information to ensure no unauthorized access to Customer Information. Merchant agrees to maintain all such safeguards applicable to Merchant, Landmark or Bank in accordance with applicable federal and state laws, rules, regulations and guidance.
(B) Customer Information. For purposes of this Agreement, “Customer Information” shall mean any non-public, sensitive information about a consumer including any combination of consumer name plus any of social security number, driver’s license or other identification number or credit or debit card number, or other bank account number.
(C) Compliance with Card Association Rules. Merchant specifically represents, warrants and covenants that it is and shall remain throughout the term of this Agreement in compliance with Card Association bylaws, operating regulations and rules related to data security, data integrity and the safeguarding of Customer Information including the Payment Card Industry Data Security Standard (“PCI”), MasterCard’s Site Data Protection Program (“SDP”) and Visa’s Customer Information Security Program (“CISP”), in effect and as may be amended, supplemented or replaced. Merchant agrees to cause all of its service providers, subcontractors and agents to be in compliance with PCI, SDP and CISP requirements at all times. Merchant shall report any non-compliance immediately to Landmark and Bank. In furtherance of the foregoing, Merchant agrees to encrypt all debit, credit or stored value card numbers whether in storage, transport or backup and agrees not to store data security codes on its systems, network or software.
(D) Annual Certification. Merchant agrees to provide an annual certification to Landmark or Bank if requested by Landmark or Bank (in a form acceptable to Landmark or Bank as the case may be) certifying compliance with these data security provisions, including compliance with applicable Card Association requirements, including PCI, SDP and CISP. Merchant agrees to provide annual certifications for Merchant’s service providers, subcontractors and agents.
(E) Limits on Use of Information. Merchant will not sell, disclose, or otherwise make Customer Information obtained in connection with providing Services under this Agreement available, in whole or in part, in a manner not provided for in this Agreement, without the prior written consent of Landmark. Provided, however, Merchant may disclose Customer 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 such individuals or entities have assumed confidentiality obligations in accordance with this Agreement, or as may be required by legal process or applicable federal and state laws, rules, regulations and guidance and have entered into a written agreement with Merchant containing the agreement of Merchant and such individuals or entities to the foregoing data security provisions including, inter alia, compliance with Card Association rules, regulations or bylaws.
(F) Response to Unauthorized Access. Merchant agrees to notify Landmark promptly, but no less than twenty-four (24) hours after knowledge of any breach in security resulting in an unauthorized access to Customer Information. Merchant agrees to provide any assistance that Landmark, Bank, the issuing bank(s) of Customer(s), and their regulators and the Card Associations deem necessary to contain and control the incident to prevent further unauthorized access to or use of Customer Information. Such assistance shall include, but not limited to, preserving records and other evidence and compiling information to enable Landmark to assist Bank and the issuing bank(s) or the Card Associations to investigate the incident and provide assistance and cooperation (i) to file Suspicious Activity Reports (as applicable); (ii) notify their regulators (as applicable); and (iii) notify the affected Customers (as required). Unless such unauthorized access was due to the acts or omissions of Landmark, Merchant shall bear the cost of providing notices to the affected Customers.
(G) Audit. Merchant agrees that the records maintained and produced under this Agreement shall be available and the facilities of Merchant shall be accessible upon prior notice during normal business hours for examination and audit by Landmark, Bank and their regulators having jurisdiction over their businesses, and internal and external auditors of Landmark and Bank to audit compliance with this Agreement and compliance with federal and state laws, rules, regulations and guidance applicable to the Services and these data security provisions, including Card Association compliance. Nothing in this Section shall 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 shall bear its expenses of any audit.
(H) Indemnification. Merchant shall defend, indemnify and hold Landmark and Bank and their 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 Landmark or Bank arising out of, relating to or resulting from, either directly or indirectly, (i) a breach of the security of the system safeguarding Customer Information resulting in unauthorized access to Customer Information; (ii) 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; (iii) 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; (iv) any violation of applicable federal and state laws, rules, regulations and guidance and Card Association rules by Merchant; and (v) all third party claims arising from the foregoing, provided, however that Merchant shall not be responsible to Landmark or Bank to the extent that the Damage is caused by, related to or arises out of the negligence, gross negligence or willful misconduct of Landmark or Bank or any breach of this Agreement by Landmark or Bank. Further, Merchant agrees to promptly reimburse Landmark or Bank for any assessments, fines, fees or penalties imposed by the Card Associations in connection with this Agreement, including the data security provisions and authorizes Landmark and Bank to deduct any such sums from amounts to be cleared and settled with Merchant.
(I) No Third Party Beneficiary. No other person or entity shall be deemed to be a third party beneficiary of these provisions.
(J) No Liability. Merchant agrees not to make a claim against Landmark or Bank or hold Landmark or Bank liable for the acts or omissions of other merchants, service providers, Card Associations, financial institutions or others that do not have a written contractual relationship with Landmark or Bank or over which Landmark or Bank has no control.
(K) Amendment. These provisions supplement, augment and are in addition to obligations of indemnification, audit, confidentiality and other similar provisions contained in the applicable agreement with the Merchant.
17. Chargebacks. Merchant will pay to Bank, upon demand, and bear all risk of loss without warranty or recourse to Bank for the amount of any transaction plus applicable fees
or other amounts due Bank (including the costs and expenses of Bank), and Bank shall have the right to debit Merchant's incoming transactions, the Designated Account or any
other funds of Merchant in Bank's direct or indirect control by reason of
Bank's security interest granted to Bank by Merchant under Paragraph 23 below; and to charge back any
transaction to Merchant for any violation of this Agreement, the Rules or applicable law, and including any of the following situations: (a) Where goods have been returned or
service canceled by a cardholder and the cardholder requested a credit draft and such credit was not processed by Merchant; (b) Where the sales draft or purchase breaches
any representation, warranty or covenant or failed to meet the requirement of this Agreement, the Rules or applicable law, or had not been authorized in advance by the
authorization center as required thereunder or any transaction which was charged back by an issuer or any card association or network; (c) Where there is a type of goods or
services sold other than as disclosed in the Merchant Application or approved in advance by Bank or the amount shown on the sales draft differs from the copy given to the
cardholders; (d) Where a cardholder contends or disputes in writing to Bank, or the issuer that: (1) Goods or services were not received by the cardholder or other authorized user;
or (2) Goods or services received by a cardholder or other authorized user do not conform to the description on the sales draft; or (3) Goods or services were defective or the
cardholder has a claim, dispute or defense to payment related to the
transaction; or (4) The dispute reflects a claim or defense authorized against issuers or
creditors by a relevant statute or regulation; (e) Where a sales draft or credit draft was not received by Bank as required in accordance with Paragraphs 13 and 14 of this Agreement or is
subject to indemnification hereunder; (f) Where the sales draft is illegible, incomplete or no authorization appears or does not contain a transaction date or the face of such sales
draft shows that such date or dollar amount has been altered or incorrectly entered and the sales draft is charged back by the issuer; (g) Where the sales draft contains the
imprint or description of a card other than the card specified; (h) Where the transaction was generated through the use of a card that was not valid, effective or unexpired on the
transaction date of which was altered or counterfeit or of which Merchant had notice not to honor the card and did not reject the transaction, or if any denial of authorization was
disregarded; (i) Where no signature appears on the sales draft (or the sales draft does not contain the embossed legend from the card in the case of a permitted manual data
capture transaction) or Merchant failed to obtain specific authorization in advance from the authorization center to complete the transaction and/or a valid authorization number
was not on the sales draft and/or the cardholder has certified in writing to Bank or the issuer that the cardholder or other authorized user did not make or authorize the transaction;
(j) Where security procedures have not been followed or where the signature on the sales draft is obviously different from the signature appearing on the signature panel of the
card and the sales draft is charged back; (k) Where the issuer or Bank has information that Merchant fraud occurred at the time of the transactions(s), or the transaction is not a
sale by Merchant whether or not such transaction(s) was properly authorized by the issuer and the cardholder neither participated in nor authorized the transactions(s); (l) In any
other situation where the sales draft was executed or depository credit given to Merchant in circumstances constituting a breach of any representation of warranty of Merchant or
in violation of the Rules, this Agreement or applicable law or where Merchant has not provided documents or resolved a cardholder dispute whether or not a transaction is charged
back by the issuer; and (m) A sales draft was charged back and represented whether or not the cardholder knows or consents to this representment.
If, with respect to any one of Merchant's outlets, the amount of any card counterfeit or fraud incidents becomes excessive, in the sole determination of Bank, Merchant may be
charged back for all transactions, this Agreement may be terminated immediately without notice, and Merchant's funds, including but not limited to those in incoming transactions
and in Merchant's Designated Account, shall be subject to the provisions of Paragraph 17 below. Bank will provide Merchant with any information possessed by it which may
enable Merchant to recover from others the amount of any transaction charged back to Merchant. Bank shall retain any discount or fee related to a chargeback transaction.
Merchant understands that Bank will assess a fee, plus Bank's costs and expenses per each chargeback, or other charges as may be established by Bank from time to time.
Furthermore, Bank may assess Merchant for any fines imposed by MasterCard/Visa plus a fee for processing such fine as may be required by Bank at its sole discretion.
Disputes relating to chargebacks shall be governed by the Rules, including Merchant's obligation to provide required documentation.
18. Chargeback Reserve Account. Notwithstanding anything to the contrary in this Agreement, Bank reserves the right to establish (without notice to Merchant) and Merchant
agrees to fund a non-interest bearing Chargeback Reserve Account, or demand other security and/or to raise the Discount Fee or Transaction Fees or other fees hereunder, at
any time for any reason, including upon Bank's reasonable determination that it is subject to possible loss or chargeback risk, including, without limitation the occurrence of any
of the following: (a) Merchant engages in any processing of charges which create an overcharge to the cardholder by duplication of charges; (b) Any activity designed by
Merchant to circumvent a "Call Center" message when attempting to process a transaction; (c) Failure by Merchant to fully disclose the true nature or percentage of its actual or
intended telephone and/or mail order business; (d) Failure by Merchant to fully disclose the true nature of its business to Bank to permit a fully informed decision as to the
suitability of Merchant for processing through Bank; (e) Failure by Merchant to fully disclose the true ownership of Merchant's business entity or evidence of fraud; (f)
Processing by Merchant of unauthorized charges or any other action which violates applicable risk management standards of Bank or is likely to cause loss; (g) Any
misrepresentation made by Merchant in completion of the Merchant Application or breach of any other covenant, warranty, or representation contained in this Agreement, the
Rules or applicable law including a change of type of business without prior written approval by Bank; (h) Merchant has chargebacks which exceed 1% of the total number of
transactions completed by Merchant in any thirty (30) calendar day period; (l) Excessive number of requests from consumers or issuing banks for retrieval of documentation; (j)
Merchant's financial stability is in question or Merchant ceases doing business; or (k) Upon violation by Merchant of this Agreement or notice of or termination of this Agreement.
After payment or adequate provision for payment is made by Bank for all obligations on the part of Merchant to Bank under this Agreement and the rules,
Merchant may request Bank to disburse to Merchant any funds remaining in the
Chargeback Reserve Account unless otherwise agreed to by Bank. Such funds will not be
disbursed to Merchant until the end of one hundred eighty (180) days after termination of this Agreement, one-hundred twenty (120) after delivery of final goods or services to
cardholders or ninety (90) days from the date of the last chargeback activity, whichever is later, unless Bank in its sole discretion has reason to believe that cardholder
chargeback rights may be longer than such period of time or that loss is otherwise likely, in which event Bank will notify Merchant of such fact and Bank will set the date when
funds shall be released. No monies had in the Chargeback Reserve Account shall bear interest. Provisions applicable to the Designated Account are also applicable to the
Chargeback Reserve Account.
19. Fraudulent Sales-Factoring or Laundering. Merchant shall never accept or deposit or enter into its POS terminal a fraudulent sale or sale made by any other person or
merchant. Should Merchant do so, Merchant may immediately be terminated, have all funds placed into a Chargeback Reserve Account, pursuant to Paragraph 17 above. In the
event of Merchant termination, Merchant will be placed on the terminated
merchant lists (the M.A.T.C.H. file) published by the card associations. Said action may result in
Merchant never being allowed to settle transactions. Merchant indemnifies Bank under the provisions hereof from any claims resulting from being placed on any such list.
20. Bank and MSP Liability. Except as expressly provided in this Agreement, Bank (including MSP) makes no other warranties whether express, implied, statutory or otherwise,
in connection with this Agreement or the transactions contemplated hereby and without limiting the foregoing, Bank and MSP disclaims all warranties of merchantability and
fitness for a particular purpose. Bank and MSP may utilize systems of others, including card associations. Bank and MSP shall not be responsible or liable for any information
provided by others or for the use of any system or equipment of Bank and MSP or others or for any circumstances beyond its control. Bank and MSP shall not be liable in any
event for lost profits, consequential, special, punitive, exemplary or incidental damages, even if Bank and MSP has been advised of the possibility of such damages. The sole
and exclusive liability of Bank and MSP and remedy of Merchant hereunder (including negligence) shall be general money damages not to exceed the amount of the card
transaction subject to claim or dispute, regardless of the characterization of such action or claim.
21. Force Majeure. The parties to this Agreement shall be released from liability hereunder for failure to perform any of the obligations herein where such failure to perform
occurs by reason of any act of God, fire, flood, storm, earthquake, tidal wave, communications failure, sabotage, war, military operation, national emergency, mechanical or
electronic breakdown, civil commotion or the order, requisition, request or recommendation of any governmental agency or acting governmental authority, or either party's
compliance therewith, or governmental procreation, regulation, or priority, or any other cause beyond either party's reasonable control, whether similar or dissimilar to such
causes.
22. Termination. This Agreement shall continue in effect until termination as provided herein. This Agreement may be terminated by Merchant for any reason or cause
whatsoever upon the expiration of thirty (30) days prior written notice to Bank. Bank, in addition to any rights of immediate termination without notice as may be contained
elsewhere in this Agreement, may terminate this Agreement and, at Bank's discretion, any other business the ownership of which is connected with Merchant, for any reason or
cause whatsoever upon the giving of written notice to Merchant. Unless otherwise agreed in writing, such termination shall become effective upon the giving of such notice.
Merchant's rights to make card transactions and any other rights derived under this Agreement shall cease upon termination and Merchant shall return any Bank property, forms,
or equipment. All obligations for transactions prior to termination (including to pay for chargebacks
and expenses of Bank related to chargebacks) shall survive termination. Neither party shall be liable to the other for damages (including prospective sales or profits) due to
termination. Notwithstanding Paragraph 22, notice of termination due to breach may be given orally or in writing at the discretion of Bank. This Agreement may also be
terminated effective upon the giving of notice, orally, in writing or closing the Merchant's POS terminal without prior warning at the discretion of Bank in the event Bank
determines that Merchant's type of business as indicated on the Merchant's Application or as conducted by Merchant could endanger the safety and/or soundness of Bank, the
owner, officer or corporate entity has a separate relationship with Bank and such relationship has been terminated by Bank, Merchant files for bankruptcy or is otherwise shown
to be insolvent, in the event Merchant has chargebacks which exceed association requirements or 1% of the total number of transactions completed by Merchant in any thirty
(30) calendar day period, or in the event Merchant owes money to Bank and fails to make timely payment thereof. IT IS THE EXPRESS
AGREEMENT OF MERCHANT AND
BANK THAT THE ACQUISITION OF CARD TRANSACTIONS HEREUNDER A FINANCIAL ACCOMMODATION AND IN THE EVENT MERCHANT BECOMES A DEBTOR IN
ANY BANKRUPTCY OR SIMILAR PROCEEDING, THIS AGREEMENT CANNOT BE ASSUMED OR ENFORCED BY ANY OTHER PERSON AND BANK SHALL BE EXCUSED
FROM PERFORMANCE HEREUNDER. It is the intent of the parties that any account or security held by Bank shall not be subject to any preference, claim or stay by reason
by any bankruptcy or similar law. Bank reserves the right to require Merchant to deposit sums into the Chargeback Reserve Account pursuant to Paragraph 17 hereof upon
termination.
23. Notices. Notices required or permitted under this Agreement shall be deemed to have been given upon personal delivery (including overnight courier service), electronic
mail, receipt of facsimile (with answerback confirmation), monthly statement message, and if by mail on the third day after the same shall be deposited in the United States
mail, by first class mail, postage prepaid, and addressed to Bank, c/o Landmark Merchant Solutions, 2050 E. Algonquin Road., Suite 610, Schaumburg, Illinois 60173, Attention:
Risk Department or to Merchant at the address written on the Merchant Application or at such other address as either party may give to the other from time to time by written
notice to the other party. All obligations of confidentiality and of any party to this Agreement to pay funds to the other shall survive any termination. Nothing herein shall be
construed as relieving Merchant of the obligation for Minimum Discount Fee as provided in Schedule of Charges for the term of this Agreement.
24. Security Interest. To SECURE ALL OBLIGATIONS OF MERCHANT TO BANK (INCLUDING MSP) ARISING FROM THIS AGREEMENT, MERCHANT HEREBY GRANTS
BANK (INCLUDING MSP) A LIEN AND SECURITY INTEREST IN ALL TRANSACTIONS, DRAFTS AND ITEMS SUBMITTED (OR TO BE SUBMITTED FOR PROCESSING
INCLUDING FUTURE SALES DRAFTS) TO BANK, ALL RIGHTS RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL AMOUNTS DUE MERCHANT
(INCLUDING ANY RIGHTS TO RECEIVE CREDITS OR PAYMENTS HEREUNDER), ALL DEPOSITS REGARDLESS OF SOURCE TO MERCHANT'S DESIGNATED ACCOUNT
AND OTHER BANK ACCOUNTS ESTABLISHED IN MERCHANT'S NAME (INCLUDING THE CHARGEBACK RESERVE ACCOUNT) OR OF ANY PARTY SIGNING THE
PERSONAL GUARANTY, ALL OTHER PROPERTY OF MERCHANT MAINTAINED BY
BANK AND ALL PROCEEDS OF THE FOREGOING (THE "SECURED ASSETS"). Said security interest may be set off or otherwise be exercised by Bank without notice or
demand of any kind of making an immediate withdrawal from or freezing of any said Secured Asset or account, upon Bank's reasonable determination that a breach of any
obligation of Merchant under this Agreement has occurred. The exercise of this security interest shall be in addition to any other rights of Bank under the Uniform Commercial
Code, this Agreement, applicable laws or in equity. The parties specifically acknowledge and affirm that pursuant to the Uniform Commercial Code of Illinois, this Agreement
shall constitute a security agreement and that Bank has general lien and right of offset upon all funds on deposit with Bank, which shall stand as one continuing collateral
security for the timely performance by Merchant of all of its obligations to Bank, including Merchant's obligation to pay amounts due and owing to Bank. Bank shall also have
the right to require the Merchant to furnish such other and different security as Bank shall de em appropriate in is sole discretion in order to secure Merchant's obligations under
this Agreement. Merchant agrees to execute any documents or take any actions required in order to comply with and perfect any security interest under this Paragraph, at
Merchant's cost. To the extent permitted by law, Merchant irrevocably authorizes Bank to execute any financing statement or other documents relating to this security interest.
Merchant represents and warrants that no other party has a security interest or lien in the Secured Assets and Merchant shall obtain from Bank written consent from Bank prior to
granting a lien or security interest of any kind in the Secured Assets to any other person.
25. Indemnification. Merchant shall indemnify and hold Bank (including MSP) and its officers, employees, agents and independent contractors (including the MSP) harmless
from any liability, loss, damage, claim or complaint, all reasonable attorney's fees and costs, settlements or awards and any reasonable fee imposed to cover administrative
costs incurred or arising out of chargebacks, Merchant's breach of this Agreement, the Rules or applicable law including but not limited to, misrepresentation or breach of any
covenants or warranties herein contained, arising out of any card transaction or any act or omission of Merchant, including in connection with a cardholder or with respect to the
merchandise or services purchased with a card or any contract or warranty service promised by Merchant, Merchant agrees to pay the costs and expenses (including legal fees)
of Bank (including MSP) related to any transaction subject to legal process (including reproduction of records) or bankruptcy or similar proceedings.
26. Discount Fee and Transaction Fees. Merchant agrees to pay Bank the nonreturnable fees stated in the Schedule of Fees attached hereto as amended from time to time
by Bank or as otherwise agreed. Bank shall have the right to increase the Discount Fee and Transaction Fees from time to time in accordance with the terms of this Agreement,
including as applicable, Paragraphs 17 or 33. Fees become due at the time the transaction is submitted to Bank for processing. A Discount Fee means a fee charged on the
total amount of the transaction. A Transaction Fee shall mean a fee charged on each sales draft, each credit draft or each
component part of processing for which a fee relates
(such as chargebacks) regardless of the total stated and shall also mean a fee charged for any other transactions which utilizes a POS device for transmission or reception of
data or information, including but not limited to, debit card transactions, batch closing, authorizations and other communications using the POS terminal. Merchant acknowledges
that Bank has relied upon the information contained in the Merchant Application (including but not limited to the type of business in which Merchant is engaged, the product or
service sold, the average sale or ticket size and monthly volume, the amount of telephone and mail order sales and the ratio of keyed/swiped transactions) in determining
whether to accept Merchant's Application and in setting the Discount Fee and Transaction Fees charged to Merchant. Merchant acknowledges the Discount Fee quoted in the
accompanying Merchant Application is contingent upon Merchant closing batches at least once every business day, and further understands that in the event that batches are
not closed at least daily, Bank may initiate batch closing on Merchant's behalf. In the event of a change in the parameters as stated above or should special circumstances
arise (i.e., sales, etc.) which shall change either temporarily or permanently the existing conditions, Merchant MUST notify Bank prior to those changes, so that necessary
adjustments can be made. Additional fees may be assessed for processing of sales or credit drafts emanating from foreign (non U.S.A.) credit cards or transactions. Merchant
will be charged an additional fee (see Schedule of Fees) and subject to increase for all transactions which do not qualify for the lowest interchange fees. To qualify, batches
must be closed daily and an authorization obtained for every transaction matching the sales amount exactly (or within 15% for hotels and car rentals, 20% for restaurants, bars
and night clubs). PLEASE REFER TO THE SCHEDULE OF FEES ATTACHED TO THIS AGREEMENT FOR THE AMOUNT OF THESE FEES. Merchant agrees to pay these
fees and any increase in interchange fees. If not covered by the Schedule of Fees, an additional interchange fee due to a transaction which does not qualify for the lowest
interchange fee shall be paid by Merchant. The Discount Fee shall be deducted daily.
All Interlink ATM transactions are
priced at 1.10% plus $.30 per
transaction.
27. Other Fees Including Chargeback and Retrieval/ACH Reject Fee. Merchant agrees that the Monthly Minimum Discount Fee to be imposed for any month, or portion
thereof, shall be in accordance with the Schedule of Fees. In the event that the uncollected amount due to unfunded chargebacks or returns, then the merchant shall pay the
costs of any fees imposed by an outside collection agency or one thousand dollars <$1,000.00>, whichever is greater. Merchant acknowledges that Bank assesses a Monthly
Statement Fee (see Schedule of Fees). Merchant shall be charged such other fees as may be established from time to time by the Bank. Merchant also acknowledges that the
Monthly Minimum and Monthly Statement Fee apply to each merchant identification number assigned to Merchant. Merchant agrees to pay all fees referenced in this Section 26.
Merchant agrees to pay an NSF Fee in the amount of Twenty-Five Dollars ($25.00) for each rejected ACH collection or transfer. Merchant agrees to pay a Ten Dollar ($10.00)
retrieval fee and a Fifteen ($15.00) Dollar chargeback fee for each such item. In the event funds remain in any Merchant Designated Account or any Chargeback Reserve
Account for a period of six (6) months, after Bank in good faith has attempted to contact Merchant to return such funds, the funds shall revert to and become property of Bank
in consideration of Bank's cost of monitoring such account and effort to return funds to Merchants. Merchant agrees this is not a penalty.
28. Severability. If any part of this Agreement is held unenforceable or invalid or prohibited by law, said part shall be deemed stricken therefrom and this Agreement shall be
read and interpreted as though said part did not exist, and shall not affect the validity or enforcement of any other provision.
29. Waiver. Neither the failure nor any delay on the part of Bank to exercise any right, remedy, power or privilege hereunder shall operate as a waiver thereof or give rise to an
estoppel nor be construed as an agreement to modify the terms of the Agreement, nor shall any single or partial exercise of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver by a party hereunder shall be effective
unless it is in writing and signed by the party making such waiver, and that such waiver shall apply only to the extent specifically stated in such writing.
30. Entire Agreement. This agreement, including the Merchant Application and any other documents executed in conjunction herewith, constitutes and expresses the entire
understanding between the Merchant and Bank with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understanding,
inducements, or conditions, by Bank or its sales representative, whether expressed or implied, oral or written. Neither this Agreement nor any portion of provision hereof may be
changed, waived or amended orally or in any manner other than by writing specifically identified as such and signed by the duly authorized representatives of Bank.
31. Assignment and Delegation. This Agreement may not be assigned by Bank without the MSP's prior written consent. This Agreement may not be assigned by Merchant
without Bank's and MSP's prior written consent and any purported assignment without such consent shall be void. This
Agreement shall be binding on the parties and their
permitted heirs, successors, and assigns. Bank reserves the right, in its sole discretion, to delegate or assign to third parties the performance of certain of Bank's servicing and
settlement obligations to Merchant. Bank is not responsible for the performance of such third parties. The relationship of Bank and Merchant is solely that of independent
parties contracting for services.
32. Disputes, Governing Law, Jurisdiction, Forum and Venue. Bank (including its MSP) shall have the absolute right to right to initiate or defend any and all disputes arising
from this Agreement with Merchant. This Agreement shall be solely and exclusively governed by and construed in accordance with the laws of the State of Illinois. Except as
noted below, personal jurisdiction over, subject matter jurisdiction over, forum for and venue of any and all disputes arising directly or indirectly out of this Agreement shall lie
solely and exclusively in the federal or state courts of Cook County, Illinois. Merchant (and any guarantor or guarantors of Merchant's obligations and duties hereunder)
covenants with Bank that they shall not sue Bank or Bank's MSP except in Cook County, Illinois and shall not seek to enforce any judgement against Bank or its MSP originating
in any place other than Cook County, Illinois. Merchant (and any guarantor or guarantors of Merchant's obligations and duties hereunder) do each hereby waive all objections to
said forum, jurisdiction and venue and agree to submit thereto. Such forum, jurisdiction and venue shall be solely and exclusively in Cook County, Illinois regardless of whether
Merchant (and any guarantor or guarantors of Merchant's obligations and duties hereunder) is a plaintiff or defendant in any action arising out of this Agreement, or by virtue of
any law or regulation (or purported violation thereof) whatsoever. BANK, BANK'S MSP AND MERCHANT (AND ANY GUARANTOR OR GUARANTORS OF MERCHANT'S
OBLIGATIONS AND DUTIES HEREUNDER) HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION CONCERNING ANY RIGHTS OR REMEDIES UNDER
THIS AGREEMENT. Each party is responsible for its own costs and expenses, except that Merchant (and any guarantor or guarantors of Merchant's obligations and duties
hereunder) shall be liable for all costs and expenses of Bank (including MSP) in connection with the enforcement of this Agreement including any breach hereof or the collection
of any sums due to Bank hereunder (including in bankruptcy). The costs and expenses of Bank include any and all of its attorneys' fees incurred in connection with the
enforcement of this Agreement as noted herein. Notwithstanding the above, Bank may at any time proceed in any court of competent jurisdiction (whether it be Cook County,
Illinois or otherwise) against Merchant (and any guarantor or guarantors of Merchant's obligations and duties hereunder) for equitable relief, or to enforce or execute any judgment
originating in a federal or state court located in Cook County, Illinois. All of Bank's and MSP's rights and remedies under this Agreement shall be cumulative and in addition to
any other rights and remedies afforded by law or in equity and Bank's and MSP's rights and remedies may be exercised concurrently, independently or successively under this
Agreement. MERCHANT (AND ANY GUARANTOR OF MERCHANT'S OBLIGATIONS HEREUNDER) HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS
AND AGREE AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE
SIGNATORY OF THIS AGREEMENT OR ANY DESIGNATED OFFICER OR OWNER OF MERCHANT OF WHICH BANK HAS KNOWLEDGE, OR TO MERCHANT'S
REGISTERED AGENT; AND AGREES THAT SUCH SERVICE OF PROCESS SO MADE SHALL BE COMPLETE UPON MAILING BY BANK OR ITS AGENT OR ATTORNEY.
33. Compliance and Disclosure of Information. Merchant shall provide such information and certifications as Bank may reasonably require from time to time to determine
Merchant's compliance with the terms and conditions of this Agreement and the Rules. Merchant further agrees to produce and make available for inspection by Bank or its
officers, agents or representatives, such books and records of Merchant as Bank may deem reasonably necessary to be adequately informed of the business and financial
condition of Merchant, or the ability of Merchant to observe or perform its obligations to Bank pursuant to this Agreement. Merchant further agrees to provide the Bank from
time to time upon request such information as Bank may request including, but not limited to, credit reports, personal and/or business financial statement, income tax returns, or
other such information as Bank may request. Merchant and each Guarantor of Merchant grants to Bank continuing authority to conduct credit checks and background
investigations and inquiries concerning Merchant, guarantors of Merchant's obligations hereunder and Merchant's owner(s) including, but not limited to, character and business
references and the financial condition of Merchant and Merchant's owner(s). Merchant expressly authorizes Bank or its agents and representatives to provide and receive such
information from any and all third parties directly, without further consent or
authorization on the part of Merchant. As allowed by applicable law, Bank and MSP may share with
others its credit, sales and other information about Merchant and this Agreement. Merchant will not transfer, sell, or merge or liquidate its business or assets or otherwise
transfer control of its business, change its ownership in any amount or respect, engage in any joint venture partnership or similar business arrangement, change its basic nature
or method of business, types of products sold without providing written notice to Bank and provide Bank with the opportunity to terminate this Agreement.
T&C 20031023.1
34. Amendments. No provision of this Agreement may be amended, modified, or waiver except by a writing signed by Bank. This Agreement including rates and fees (including
on any Fee Schedule) may be amended by Bank from time to time upon written notice of the change(s) in terms and conditions. Any amendment to this Agreement shall be
effective on the later of the effective date specified in the notice or seven (7) days after the notice is mailed to Merchant or in the manner prescribed for notice herein.
Submission of transactions to Bank on or after any effective date constitutes
acceptance of any amendment. Any unrelated alteration or modification to the pre-printed form of
the Agreement has no effect and, at the Bank's discretion, may render this Agreement invalid. If the merchant continues to process followin its receipt of the notice of change
of fees, that shall be deemed conclusive proof that the merchant accepts the revised fee arrangement.
35. Survival. All representations, warranties and covenants shall survive the termination of this Agreement.
36. Construction. The captions contained in this Agreement are for the convenience of the parties and shall not be construed or interpreted to limit or otherwise define the
scope of this Agreement. This Agreement shall not be deemed to have originated with either party.
37. Counterparts and Faxes. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, such counterparts to constitute
but one and the same instrument. A fax signature shall be legally binding.
38. Schedule of Fees. Attached to this Agreement and incorporated herein by reference is a Schedule of Fees which contains the Discount Fee, Transaction Fees and other
terms and conditions in effect on the commencement date of this Agreement. Bank reserves the right at all times to unilaterally change all or part thereof, or any other terms of
this Agreement as provided herein, including in accordance with Paragraphs 22 or 23.
39. Member Bank Responsibilities: National Bank of Commerce 5500 St Charles Rd Berkeley, IL 60163-1282 708/544-5500: (a)Bank is the only entity approved to extend acceptance of Visa products directly to a Merchant; (b)Bank must be a principal (signer to the Merchant Agreement); (c)Bank is responsible for educating Merchants on pertinent Visa Operating Regulations with which Merchant must comply; (d)Bank is responsible for and must provide settlement funds to the Merchant; (e)Bank is responsible for all funds held in reserve that are derived from settlement; (f)Bank is primarily responsible for the merchant relationship; (g)Bank may be contacted at any time for any reason.
40. Equipment/Software. Merchant may lease terminal equipment and/or software from MSP or third party terminal/software leasing company. Bank or MSP, may, if it so
elects, obtain information concerning any new bank or other checking accounts established by Merchant from any terminal leasing company and any terminal leasing company
is hereby authorized and directed to
disclose such information to Bank or
MSP. Merchant authorizes Bank and MSP to initiate debit/credit entries to any Merchant and/or
Guarantor's checking account. Merchant agrees to make this authorization known to any terminal leasing company and no further authorization shall be required from Merchant.
Merchant authorizes Bank and MSP to process and collect from Merchant, including from payment of card transactions and accounts on deposit with Bank, any fees or charges
pursuant to any terminal/software lease Agreement. Merchant further authorizes Bank to charge all such fees or other sums owed to any new bank account or other deposit
accounts as specified in Section 32 hereof. If Merchant does not verify receipt and installation of leased equipment within one (1) week of receipt of the equipment, all
remaining lease payments through the end of the remaining term of the Lease shall become immediately due and payable. All amounts under the Lease Agreement or
arrangement shall become immediately due and payable by Merchant and Guarantor(s). MSP may also bring an action against Merchant and Guarantors directly for
non-payment of lease obligations in the event payments are due to MSP or terminal leasing company and such leasing company charges or threatens to charge MSP for
Merchant's non-payment. In such event of non-payment, all remaining lease payments (plus a collection fee of 30% of the remaining outstanding lease obligation) through the
end of the remaining term of the Lease shall become immediately due and payable by Merchant and Guarantor(s). Merchant and Guarantor(s) agree that the "Disputes,
Governing Law, Exclusive Jurisdiction and Venue (in Cook County, Illinois) provisions of Section 31 hereof including the WAIVER OF JURY TRIAL are fully applicable to the
collection of sums owing for the lease of
equipment from Merchant by Bank or Bank's MSP and any claims of Merchant and/or Guarantor against Bank or MSP related to the
equipment or the transactions related to the lease of the equipment. Merchant authorizes Bank and MSP to disclose any new Merchant and/or Guarantor bank accounts or such
information that would assist terminal leasing company in collection of monies owed by Merchant and/or Guarantor to such company.
41. PIN Security. No Merchant and no employee or agent of Merchant shall request or ask a cardholder to divulge his or her PIN in an oral or written manner. Merchant shall ensure that all POS terminals are placed in such a manner that a cardholder can reasonably prevent others from observing the cardholder’s entered PIN. Merchant shall ensure that the placement of all security cameras in relationship to POS terminals are situated so as to reasonably prevent others from observing the PIN entered by a cardholder. Merchant shall ensure and instruct all of Merchant’s employees and agents that all tamper resistant security modules (including, but not limited to, an encrypting PIN pads) shall be operated in their intended manner and environment.
This Agreement shall be effective only upon acceptance by Bank. Any application fee paid to Bank is non-refundable whether or not Merchant and this Agreement is accepted
by Bank.
