Tebra is a payment facilitator that participates in programs affiliated with MasterCard, VISA, Discover, American Express and other Associations that enable Cardholders to use their Cards to purchase goods and services from merchants located in the United States. Tebra is not a bank and does not offer banking services. These Payment Processing Terms govern Customer’s participation in these programs. These Payment Processing Terms are a part of the Terms of Service referenced in and incorporated into the Customer Agreement. Customer is also referred to as “Merchant” in these terms.
Certain Associations may require that Merchant also enter into a direct contractual relationship with Member Bank if Merchant is categorized within certain MCC codes designated by the Associations and Merchant’s Transaction volume exceeds $1,000,000 or such other amount or criteria provided in the Operating Regulations. Where this direct contractual relationship is required by the Operating Regulations, by agreeing to these Payment Processing Terms, Merchant agrees to the terms and conditions of the applicable Merchant Agreement for Sub-Merchants effective as of the date Merchant’s Transaction volumes exceeds the applicable threshold amount. Member Bank or its registered agent may independently enforce the Merchant Agreement for Sub-Merchants.
For the purposes of these Payment Processing Terms:
Account means an open checking account at Fifth Third Bank or its affiliate, or at another financial institution acceptable to Tebra that Tebra or its Member Bank can access through the ACH system.
Account Change means a change in the Account or the financial institution where the Account is located.
ACH means the Federal Reserve’s Automated Clearing House (“ACH”) system.
American Express means American Express Travel Related Services Company, Inc.
Association means VISA, MasterCard, Discover, American Express, and any other network or card association that is identified in the Pricing Policy and in which Merchant participates under these Payment Processing Terms.
Cards means MasterCard, VISA, Discover, American Express and other Association cards, account numbers assigned to a cardholder, or other methods of payment accepted by Tebra, for which pricing is set forth in the Pricing Policy.
Cardholder means any person authorized to use the Cards or the accounts established in connection with the Cards.
Data Incident shall mean any alleged or actual compromise, unauthorized access, disclosure, theft, or unauthorized use of Card or Cardholder information, regardless of cause, including without limitation, a breach of or intrusion into any system, or failure, malfunction, inadequacy, or error affecting any server, wherever located, or hardware or software of any system, through which Card information resides, passes through, and/or could have been compromised.
Discover means Discover Financial Services, LLC.
Event of Default means each event listed in Section 12.
Float Event means a circumstance where Tebra or its Member Bank, for whatever reason, advances settlement or any amounts and/or delays the assessment of any fees.
Force Majeure Event means, labor disputes, fire, weather or other casualty, power outages, and funding delays, however caused, governmental orders or regulations, or any other cause, whether similar or dissimilar to the foregoing, beyond Tebra’s reasonable control.
MasterCard means MasterCard International, Inc.
Marks means trademarks and service marks (whether registered or at common law), trade names, business names, logos, symbols, and Internet domain names, or any abbreviation or contraction thereof.
Member Bank (also known as Acquirer) has the meaning given in Section 32.
Merchant Supplier means a third party other than Tebra or Member Bank used by Merchant in connection with the Payment Processing Services, including but not limited to, Merchant’s software providers, equipment providers, and/or third party processors.
Operating Regulations means the by-laws, operating regulations and/or all other rules, policies and procedures of the Associations in effect from time to time, including those available at the following websites:
Payment Processing Service means any and all services described in or provided by Tebra under these Payment Processing Terms.
Payment Processing Terms means these Payment Processing Terms, the relevant pricing and terms in the Pricing Policy, and each exhibit, schedule, and addendum that is attached to or incorporated by reference into these terms.
PCI means the Payment Card Industry Data Security Standard.
Rules Summary means a summary of the key Operating Regulations that govern the Payment Processing Services that Tebra may provide to Merchant (as updated by Tebra from time-to-time).
Service Delivery Process means Tebra’s then standard methods of communication, service and support, as further described in these Payment Processing Terms and elsewhere in the Customer Agreement.
VISA means VISA USA, Inc.
Other capitalized terms that are used but not defined in these Payment Processing Terms have the meanings given elsewhere in the Customer Agreement.
2. Compliance. Merchant agrees to fully comply with (a) all of the terms and obligations in the then current Rules Summary available at: https://empower2.fisglobal.com/rs/092-EMI-875/images/rules-summary-04-2020.pdf, as changed or updated by Tebra from time to time, at Tebra’s sole discretion with notice in accordance with the Service Delivery Process; (b) the Operating Regulations; and (c) all applicable laws and regulations applicable to it in connection with these Payment Processing Term. The Rules Summary and the Operating Regulations are hereby incorporated by reference into these Payment Processing Terms. Without limiting the foregoing, Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), VISA, MasterCard, Discover, American Express and/or other Associations, including but not limited to PCI, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations. Notwithstanding Tebra’s assistance in understanding the Operating Regulations, Merchant expressly acknowledges and agrees that it is assuming the risk of compliance with all provisions of the Operating Regulations. MasterCard, VISA and certain other Associations make excerpts of their respective Operating Regulations available on their websites. Merchant acknowledges responsibility for any liability resulting from its decision not to participate in optional Association programs, including but not limited to any increased Data Incident liability resulting from its decision not to participate in an Association EMV program. If Merchant chooses to participate in an optional Association program, including but not limited to an EMV program, Merchant acknowledges and agrees that it shall be responsible for (i) ensuring compliance with any applicable program requirements and/or Operating Regulations applicable to such program, including but not limited to making any updates to its point of sale equipment and (ii) any cost associated with its participation in the applicable program, including any costs assessed to Merchant by Tebra. Without limiting the foregoing, and in addition to complying with each Association’s obligations or prohibitions related to acceptance, disbursement, or resubmission of a transaction, Merchant (x) shall only submit transactions for the sale of its own goods or services, and not from any other person or company, (y) may not submit any illegal, fraudulent, or unauthorized transaction and, and (z) may not receive payment on behalf of or, unless authorized by law, redirect payments to any other party. Merchant covenants that it is not a third-party beneficiary under any agreement with an Association, however, an Association may be a third-party beneficiary of these Payment Processing Terms, and thus shall have the rights, but not any obligation, necessary to fully enforce these Payment Processing Terms against Merchant.
3. Merchant Information; Change in Business.Merchant is required to provide information to Tebra in connection with its registration and ongoing use of Payment Processing Services and/or other services provided by Tebra under the Customer Agreement, including, without limitation, banking disclosure documentation and other Merchant documents, policies, procedures, and information (collectively, the “Merchant Information”). The Associations, Member Bank, third-party processors, and various government entities require that Tebra collect and verify certain Merchant Information to ensure compliance with relevant Operating Regulations, laws and other rules and regulations (collectively, “Verification Checks”). The Verification Checks may include, without limitation, determining creditworthiness and compliance with anti-money laundering and “know your customer” regulations. Merchant authorizes Tebra to disclose the Merchant Information to third parties for purposes of performing Verification Checks and agrees that Tebra and such third parties may use the Merchant Information to obtain Merchant credit reports, to perform identity verification and any other necessary inquiries about Merchant and its directors, officers, and principals, to review Merchant financial statements and customers, and to conduct transaction-verification inquiries. Tebra may also engage third parties to access Merchant’s website to verify compliance with the Operating Regulations and these Payment Processing Terms. Merchant represents and warrants that the Merchant Information provided by Merchant is complete and accurate. Tebra relies on the Merchant Information for underwriting and to meet its obligations under the Operating Regulations and under applicable laws and regulations. Merchant agrees to provide Tebra with 30 days prior written notice of Merchant’s intent to (i) change its business form or entity in any manner (e.g., a change from a limited liability company to a corporation), (ii) sell its stock or assets to another entity; (iii) change the scope or nature of Merchant’s business or the type of products or services Merchant offers changes. Merchant is liable to Tebra for all losses and expenses incurred by Tebra arising out of Merchant’s failure to comply with this Section 3. If Tebra determines that there is insufficient information to underwrite Merchant’s account or verify Merchant’s identity, or Tebra determines that Merchant’s financial condition is unsatisfactory, Tebra may refuse to provide Payment Processing Services to Merchant, or, once a Payment Processing Services account is established, Tebra may decide to terminate the account as part of the monitoring processes required by the Associations. Tebra may request additional information or impose additional requirements to provide security to Tebra and its Member Bank and third-party processor.
4. Card Acceptance.Merchant must accept all Cards and complete all Card transactions in accordance with the Operating Regulations. If Tebra for whatever reason is unable to obtain, or due to system delays chooses not to wait to obtain, authorization from an Association, Tebra may at its option “stand-in” for such entities and authorize the sales transaction based on criteria established by Tebra, and Merchant remains responsible for such sales transaction in accordance with these Payment Processing Terms. Merchant has identified to Tebra the products and/or services for which it intends to accept Cards as payment. Merchant agrees that it shall only complete and deliver to Tebra sales transactions produced as the direct result of bona fide sales made by Merchant to Cardholders for such identified products and/or services, unless otherwise agreed by Tebra in writing5. Transaction Processing.
5. Transaction Processing.Tebra or Member Bank will initiate payment to Merchant of the total face amount of each sales transaction acquired and accepted under the Customer Agreement, subject to the terms and conditions of these Payment Processing Terms, the Operating Regulations, and applicable law, after Tebra or Member Bank receives payment for such sales transactions. Unless otherwise agreed to in writing by Tebra, Merchant shall electronically deliver to Tebra and in a format acceptable to Tebra all credit vouchers and sales transaction records within 2 business days after the applicable transaction date (or such shorter period as determined by the applicable Association), except (i) in the case of a delayed merchandise delivery, when the sales transaction record shall be delivered within 2 business days of the merchandise delivery or (ii) as specified otherwise in the Operating Regulations. Merchant agrees that it shall deliver sales transaction records to Tebra at least every business day. The preparation and delivery to Tebra by Merchant of sales transactions shall constitute an endorsement to Tebra by Merchant of each sales transaction, and Merchant authorizes Tebra or its representative to place Merchant’s endorsement on any sales transaction at any time. Tebra may refuse to acquire any sales transaction or claim the amount of which, in whole or in part, it could charge back to the Merchant pursuant to these Payment Processing Terms, if it had acquired the sales transaction or claim. Merchant acknowledges and agrees that Tebra is not responsible for any action or inaction taken by the financial institution or other entity that issued the Card(s) to the Cardholder or the processor of such Card(s). Merchant agrees that Tebra may set off any amounts due to Tebra from amounts owed to Merchant, including but not limited to any amounts owed to Merchant from Tebra and/or any of its affiliate(s).
6. Exception Items.Merchant agrees to reacquire and pay Tebra the amount of any sales transaction, and Tebra shall have the right at any time to charge Merchant’s Account therefore with notice via Tebra’s Service Delivery Process, for any return, chargeback, compliance case, any other Association action, or if the extension of credit for merchandise sold or services or sales transactions performed was in violation of law or the rules or regulations of any governmental agency, federal, state, local or otherwise; or if Tebra has not received payment for any sales transaction, notwithstanding Tebra’s prior payment to Merchant for such sales transaction pursuant to Section 5 above or any other section. Not limiting the generality of the foregoing, Merchant agrees that any operational and/or other Payment Processing Services performed on behalf of Merchant, including but not limited to, production of facsimile drafts in response to copy requests, response to compliance cases, augmentation of Merchant data for interchange, transaction stand-in, digital draft storage and retrieval, etc. shall in no way affect Merchant’s obligations and liability under these Payment Processing Terms or the Customer Agreement including those in the foregoing sentence. Merchant may instruct Tebra in the defense of chargebacks, compliance cases and similar actions, and Merchant agrees that it will promptly provide any such instructions to Tebra. When Tebra has determined it has all necessary information and instructions, Merchant hereby authorizes Tebra to resolve chargebacks and respond to retrieval requests and other inquiries without further consulting Merchant.
7. Merchant Suppliers.Merchant may use one or more Merchant Suppliers in connection with the Payment Processing Services and/or the processing of some or all of its Card transactions. In no event shall Merchant use a Merchant Supplier unless such Merchant Supplier is compliant with PCI and/or the Payment Application Data Security Standard (“PA-DSS”), depending on the type of Merchant Supplier, as required by the Operating Regulations. Merchant shall cause its Merchant Supplier to complete any steps or certifications required by any Association (e.g., registrations, PA-DSS, PCI, audits, etc.). Merchant shall cause its Merchant Supplier to cooperate with Tebra in completing any such steps or certifications (if applicable), and in performing any necessary due diligence on such Merchant Supplier. Merchant shall notify Tebra in advance of any Merchant Supplier or other third party that may have access to Cardholder information. Merchant shall be solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such steps, registrations, and certifications. Merchant shall bear all risk and responsibility for conducting Merchant’s own due diligence regarding the fitness of any Merchant Supplier(s) for a particular purpose and for determining the extent of such Merchant Supplier’s compliance with the Operating Regulations and applicable law. Merchant expressly agrees that Tebra shall in no event be liable to Merchant or any third party for any actions or inactions of any Merchant Supplier used by Merchant, even if Tebra introduced and/or recommended the use of such Merchant Supplier to Merchant, or never objected to the use of such Merchant Supplier, and Merchant hereby expressly assumes all such liability.
8. Cardholder Information.Merchant shall not disclose, sell, purchase, provide, or exchange Cardholder name, address, account number or other information to any third party other than to Tebra or an Association for the purpose of completing a sales transaction unless specifically permitted by the Operating Regulations. Merchant represents and warrants that neither it nor its Merchant Supplier shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by the Operating Regulations and/or these Payment Processing Terms. Tebra acknowledges responsibility for payment card data on its proprietary systems. Tebra will (i) maintain its PCI-DSS certification and (ii) be validated as a PCI-DSS compliant service provider. If Tebra is deemed not to be in compliance with PCI-DSS, Tebra shall make commercially reasonable efforts to become compliant and maintain compliance thereafter. As of the execution of the Agreement, PCI-DSS information and standards can be found at the Payment Card Industry Security Council website at https://www.pcisecuritystandards.org/index.html
9. Tebra Fees. Merchant agrees to pay Tebra the fees, expenses and all other amounts set forth in the Customer Agreement including, but not limited to, the Pricing Policy. Tebra may change or add fees and/or charges upon notice to Merchant via Tebra’s Service Delivery Process, and such fees and/or charges shall be immediately payable by Merchant when assessed by Tebra. Merchant acknowledges that Tebra rounds fees and amounts in accordance with its standard practice.
10. Third Party Assessments. Notwithstanding any other provision of the Customer Agreement, Merchant shall be responsible for all amounts imposed or assessed to Merchant and/or Tebra in connection with this agreement by third parties such as, but not limited to, Member Bank, third party processors, Associations and Merchant Suppliers (including telecommunication companies), to the extent that such amounts are not the direct result of the gross negligence or willful misconduct of Tebra. Such amounts are in addition to the Tebra fees provided in the Pricing Policy or elsewhere in the Customer Agreement and include, but are not limited to, fees, fines, assessments, penalties, and loss allocations imposed by the Associations as a function of Merchant’s action, inaction, or sponsorship to the Associations, whether incurred by Merchant, Tebra, Member Bank, or their respective affiliates and/or agents. The fees set forth on respective Association websites are, or were, in effect but are subject to change and to surcharges by the applicable Association with such changes and/or surcharges effective as determined by such organizations. Any changes or increases in such amounts shall automatically become effective upon notice to Merchant via Tebra’s Service Delivery Process and shall be immediately payable by Merchant when assessed by Tebra. In the event of a Float Event, Tebra reserves the right to assess to Merchant, and Merchant shall pay to Tebra, a cost of funds associated with the Float Event (which Tebra may at its option assess as a transaction surcharge), the amount of which shall be determined by Tebra in its reasonable discretion, and which may be changed by Tebra from time to time, and such cost of funds shall be effective as of the start of the Float Event and shall be immediately payable by Merchant when assessed by Tebra.
11. Exclusivity.Tebra and Member Bank reserve the right to enter into other agreements pertaining to the Payment Processing Services with others including without limitation other merchants. The parties agree that Tebra shall be the exclusive provider of payment card processing services to Merchant at all of its locations in the United States and its territories.
12. Default.The following events shall be considered an “Event of Default”:
(i) Merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, a receiver is appointed for Merchant, or Merchant makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due; or
(ii) Merchant fails to pay or reimburse the fees, expenses or charges referenced in the Customer Agreement when they become due; or
(iii) Merchant is in default of any terms or conditions of the Customer Agreement whether by reason of its own action or inaction or that of another; or
(iv) Tebra reasonably believes that there has been a material deterioration in Merchant’s financial condition; or
(v) Merchant’s acts or omissions are deemed to be fraudulent or otherwise wrongful by an Association, Member Bank or by Tebra or its third—party processor; or
(vi) any standby letter of credit, if and as may be required pursuant to Section 17, will be cancelled, will not be renewed, or is not in full force and effect; or
(vii) Merchant ceases to do business as a going concern, or there is a change in ownership of Merchant which changes the identity of any person or entity having, directly or indirectly, more than 30% of either the legal or beneficial ownership of Merchant.
Upon the occurrence of an Event of Default, Tebra may at any time thereafter terminate the Payment Processing Services by giving Merchant written notice of the event. However, except in instances where immediate termination is required by any Association or if Member Bank and/or Tebra reasonably believe that the Event of Default poses material risk to either of them or involves a violation of applicable law, Merchant will have 30 days following Tebra’s notice to cure an Event of Default under Section (ii), (iii), (iv) or (v) prior to termination under this Section. Termination of Merchant for any reason shall not relieve Merchant from any liability or obligation to Tebra. All such amounts shall be due and payable by Merchant upon demand. Tebra shall also have the option to require Merchant to reacquire all outstanding sales transactions acquired by Tebra. In addition to, and not in limitation of the foregoing, Tebra may refuse to provide the Payment Processing Services if it has not been paid all amounts owed to Tebra under the Customer Agreement. Tebra may also terminate this Agreement at any time with or without notice to Merchant if required by its third-party processor, Member Bank or an Association. This Agreement will automatically terminate if Tebra ceases to be a registered payment facilitator with the Associations or if Member Bank ceases to be an acquirer in good standing with the Associations.
13. Other Protective Action.Tebra may suspend any Payment Processing Service at any time for any reason without notice. Tebra will take reasonable steps to notify Merchant suspension via the Service Delivery Process. Merchant acknowledges and agrees that each Association has the right to directly enforce any provisions in the Operating Regulations and to prohibit Tebra and/or Merchant from engaging in any conduct the Association deems could injure or create a risk of injury to the Association, including injury to reputation, or that could adversely affect the integrity of the Association processing systems or Association confidential information (as defined in the applicable Operating Regulations).
14. Taxes. Any sales, use, excise or other taxes (other than Tebra’s income taxes) payable in connection with or attributable to the Payment Processing Services provided to the Merchant shall be paid by Merchant. Tebra may, but shall not have the obligation to, pay such taxes If Tebra pays such taxes, Merchant shall immediately reimburse Tebra or Tebra may, at Tebra’s sole option, charge Merchant’s Account.
15. Binding on Successors; Assignment.These Payment Processing Terms shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, successors, transferees and assignees. Notwithstanding anything to the contrary elsewhere in the Customer Agreement, neither the Customer Agreement nor any interest in the Customer Agreement may directly or indirectly be transferred or assigned by Merchant, in whole or in part, without the prior written consent of Tebra, which will not be unreasonably delayed or withheld. Merchant will remain liable for any amounts owed under the Customer Agreement after an unauthorized transfer or assignment by Merchant, even if Tebra continues to provide Payment Processing Services to such transferee or assignee. The Customer Agreement is for the benefit of, and may be enforced only by, Tebra and Merchant and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.
16. Payment.Merchant shall always maintain an open Account. Merchant irrevocably authorizes Tebra and Member Bank to debit and/or credit the Account to settle any and all fees and other amounts due Tebra under the Customer Agreement, and such authority shall remain in effect for a period of 1 calendar year following the date of termination of the Customer Agreement, regardless of whether Merchant has notified Tebra of an Account Change as defined below. Merchant shall always maintain the Account with sufficient cleared funds to meet its obligations under the Customer Agreement. If Merchant desires an Account Change, Merchant shall give Tebra 30 days prior written notice of any such change, and Tebra shall use reasonable commercial efforts to effect such Account Change; however, such Account Change shall not be effective until the date on which Tebra and Member Bank actually make such Account Change on their respective systems. In no event shall Tebra have any liability for any amounts directed to an Account that has been designated by any purported representative of Merchant or its Merchant Supplier at any time during the term of the Customer Agreement, regardless of any Account Change. Member Bank and Tebra are hereby authorized by Merchant to charge the amount of daily chargebacks and fees i) against each day’s sales transactions ii) against any reserves; or iii) by making an ACH debit. All amounts due Tebra under the Customer Agreement shall be paid without set-off or deduction, and shall be due from Merchant as of the date Tebra originates an ACH debit transaction record to Merchant’s Account. Any fees not collected from Merchant by Tebra when due shall bear interest at one percentage point per month but in no event more than the highest rate permitted by law. The acceptance by Tebra, Tebra’s affiliate or other financial institution of Merchant’s closing (or termination of) its Account shall not constitute a mutually agreed upon termination of the Payment Processing Services. Without limiting the generality of any other provision of these Payment Processing Terms, Tebra and/or Member Bank are hereby authorized by Merchant to charge amounts due under the Customer Agreement i) against each day’s sales transactions ii) against any reserve; or iii) by making an ACH debit to Merchant’s Account.
17. Reserve; Letter of Credit.As a specifically bargained for inducement for Tebra agree to provide the Payment Processing Services, Tebra at its option reserves the right to (and/or to authorize Member Bank to): i) establish from amounts payable to Merchant under the Customer Agreement, and/or cause Merchant to pay to Tebra or Member Bank, a reserve of funds satisfactory to Tebra or Member Bank to cover actual or anticipated fees, liabilities, chargebacks, returns and any other applicable assessments incurred or expected to be incurred by Tebra or Member Bank related to the Payment Processing Services provided to Merchant; and/or ii) require Merchant to establish an irrevocable standby letter of credit, including additional and/or replacement letters of credit if required by Tebra or Member Bank, with a beneficiary designated by Tebra, and which are issued from a financial institution other than Member Bank or any of its affiliates, that is acceptable to Tebra and Member Bank, in a format, with an expiration date, and in an amount acceptable to Tebra and Member Bank in their sole discretion. If Merchant fails to establish, for any reason whatsoever, a reserve and/or a letter of credit as required above, Tebra shall have all of the rights and remedies available to Tebra in these Payment Processing Terms and elsewhere in the Customer Agreement, including but not limited to exercising the rights and remedies of Tebra and Member Bank in Section 13.
Merchant shall not sell, assign, transfer or encumber all or any part of its interest in the reserve account, if any, or any present or future rights under the Customer Agreement, including but not limited to, Merchant’s right to receive any payments or funds. Neither Tebra nor Member Bank shall be obligated to honor any such purported attempt to sell, assign, transfer or encumber such interest, rights, payments or funds unless both Tebra and Member Bank consent in writing. If Merchant breaches this paragraph, then, in addition to any other rights and remedies Tebra may have under the Customer Agreement and otherwise, Tebra shall have the right, at its option, to withhold any or all funds or payments which would otherwise be payable to Merchant under the Customer Agreement until it shall have received instructions concerning the disposition of such payments or funds, satisfactory in form and substance to Tebra and signed by both Merchant and any purported assignee. Merchant shall indemnify Tebra and hold it harmless from and against any and all claims, liabilities and damages which may be asserted against Tebra by any purported assignee or any other person arising out of Merchant’s purported sale, assignment, transfer or encumbrance of all or any of Merchant’s present or future rights under these Payment Processing Terms.
If Merchant’s sales transactions (“Daily Proceeds”) after charge backs, refunds, reserve withholdings, fees, and settlement payments for any given fiscal day are less than zero ($0), the Overdraft Fee in the Pricing Policy will be charged to Merchant. Tebra may fund overdrafts, liabilities and/or reserve deficits by initiating deductions from Merchant’s subsequent Daily Proceeds. If such collections are inadequate, Tebra may, at its option, obtain the required sums by directing Member Bank to make an ACH debit from Account or reserve account. In addition, Tebra may i) require that Merchant make a wire transfer to the Account within one (1) banking business day of notice; ii) collect under any guaranty; iii) make set-offs against any obligations owed by Tebra to Merchant or any of its affiliates; and iv) take any other action authorized by law. Neither Tebra nor Member Bank is obligated to process refunds or chargebacks that will cause an overdraft.
18. Indemnification. A. Merchant shall indemnify, defend, and hold harmless Tebra, and its directors, officers, employees, affiliates and agents from and against all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by Tebra, its directors, officers, employees, affiliates and agents resulting from or arising out of the Payment Processing Services, Merchant’s processing activities, the business of Merchant or its customers, any sales transaction acquired by Tebra, any noncompliance with the Operating Regulations (or any rules or regulations promulgated by or in conjunction with the Associations) by Merchant or its agent (including any Merchant Supplier), any Data Incident, any infiltration, hack, breach, or violation of the processing system of Merchant, its Merchant Supplier, or any other third party processor or system, or by reason of any breach or nonperformance of any provision of these Payment Processing Terms on the part of the Merchant, or its employees, agents, Merchant Suppliers, or customers.
19. Review of Settlement Activity and Reports; Notice of Failure by Tebra.Tebra will provide Merchant with reporting of transaction and settlement activity. Merchant agrees that it shall review all reports, notices, and invoices prepared by Tebra or its agent and made available to Merchant, including but not limited to reports, notices, and invoices provided via Tebra’s Service Delivery Process. Tebra reserves the right to send some or all of the reports and/or invoices and/or notices of any pricing changes permitted under the Customer Agreement via communication methods utilized as components of its Service Delivery Process which method Tebra may change from time to time with notice via Tebra’s Service Delivery Process. Merchant expressly agrees that Merchant’s failure to notify Tebra that Merchant has not received any settlement funds within 5 business days from the date that settlement was due to occur, or fails to reject any report, notice, or invoice within 30 business days from the date the report or invoice is made available to Merchant, shall constitute Merchant’s acceptance of the same. If Merchant believes that Tebra has failed in any way to provide the Payment Processing Services, Merchant agrees to provide Tebra with written notice, specifically detailing any alleged failure, within 30 days of the date on which the alleged failure first occurred.
20. Limit of Liability; Force Majeure. A. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THESE PAYMENT PROCESSING TERMS, TEBRA DISCLAIMS ALL WARRANTIES RELATING TO THE PAYMENT PROCESSING SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND MERCHANT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE PAYMENT PROCESSING TERMS.
B. The limits on liability in Section 7 of the Terms of Service apply to the Payment Processing Services. Additionally, in no event shall Tebra be liable for any damages or losses (i) that are wholly or partially caused by the Merchant, or its employees, agents, or Merchant Suppliers that should have been reported to Tebra pursuant to Section 19, (ii) that first occurred, whether or not discovered by Merchant, more than 30 days prior to Tebra’s receipt of written notice from Merchant or (iii) that were caused due to errors in data provided by Merchant to Tebra. The limits of liability in Section 7 of the Terms of Service will not, however, limit Tebra’s obligation to settle funds due to Merchant under the Customer Agreement.
C. Tebra shall not be deemed to be in default under the Customer Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of any Payment Processing Services to the extent resulting from a Force Majeure Event. Upon such an occurrence, performance by Tebra shall be excused until the cause for the delay has been removed and the Tebra has had a reasonable time to again provide the Payment Processing Services. No cause of action, regardless of form, shall be brought by either party more than 1 year after the cause of action arose, other than one for the nonpayment of fees and amounts due Tebra under the Customer Agreement. Any restriction on Tebra’s liability under the Customer Agreement shall apply in the same manner to Member Bank. If Merchant has a claim against Member Bank in connection with the Payment Processing Services provided under the Customer Agreement, Merchant shall proceed against Tebra (subject to the limitations and restrictions in the Customer Agreement), and not against Member Bank, unless otherwise specifically required by the Operating Regulations.
21. Order of Precedence. If there is a conflict between these Payment Processing Terms and the other terms in the Terms of Service or Customer Agreement, these Payment Processing Terms shall control. If there is a conflict between the Rules Summary and these Payment Processing Terms, the Rules Summary shall control. If there is a conflict between Operating Regulations and these Payment Processing Terms, the Operating Regulations shall control. If there is a conflict between the Operating Regulations and the Rules Summary, the Operating Regulations shall control.
22. Regulatory Remedial Right. Tebra may suspend or cease providing any Payment Processing Service if: (i) in Tebra’s reasonable opinion, such Payment Processing Service, or the business of Merchant, violates or would violate the Operating Regulations, or any federal, state or local statute or ordinance, or any regulation, order or directive of any governmental agency or court; (ii) Merchant is accused by any federal, state or local jurisdiction of a violation of any applicable statute or ordinance or any regulation, order or directive of any governmental agency or court, or if Tebra reasonably believes, based upon the opinion of its legal counsel, that Merchant may be in violation of any of the foregoing; and/or (iii) in Tebra’s reasonable opinion, Merchant’s activities may result in increased regulatory scrutiny or reputational harm. Tebra may also suspend or cease providing any Payment Processing Service if directed to do so by Member Bank. Should Merchant not process sales transactions through Tebra’s system for a period of 1 year or more, Tebra may remove Merchant from Tebra’s systems without notice, without relieving Merchant from any of Merchant’s obligations under the Customer Agreement.
23. Conversion; Deconversion. Merchant shall take all necessary steps to, and shall, promptly convert to Tebra’s system for the Payment Processing Services in the Customer Agreement not later than 90 days after the execution of the Customer Agreement by Tebra. Tebra agrees that it shall not charge Merchant for Tebra’s standard and customary internal testing and conversion preparation only, in connection with Merchant’s initial conversion to Tebra’s system at the commencement of the Customer Agreement, and as determined by Tebra in its sole reasonable discretion. The foregoing shall not be deemed to limit Merchant’s obligation to pay any third party fees and expenses incurred by Tebra in connection with Merchant’s conversion, which shall remain the sole responsibility of Merchant. Merchant agrees to be responsible for all direct and indirect costs (including but not limited to those incurred by Tebra, its affiliates and/or agents) in connection with and/or related to Merchant’s conversion from Tebra at the termination of the Customer Agreement and/or related to any conversion or programming effort affecting the Payment Processing Services after Merchant’s initial conversion to Tebra.
24. Confidential Information. A. Confidential Information Supplied by Tebra. Merchant acknowledges that Tebra will be providing Merchant with certain confidential information in connection with the Payment Processing Services, including but not limited to, third party audit reports and information relating to the finances, systems, methods, techniques, programs, devices and operations of Tebra and/or the Associations. Merchant shall not disclose any such confidential information to any person or entity (other than to those employees and Merchant Suppliers of Merchant who participate directly in the performance of the Payment Processing Services and need access to such information). Without limiting the foregoing, Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), VISA, MasterCard, Discover, American Express and/or other Associations.
C. Miscellaneous. The parties acknowledge that the injury that would be sustained by the party disclosing information as a result of the violation of this Section 24 cannot be compensated solely by money damages, and therefore agrees that the disclosing party shall be entitled to seek injunctive relief and any other remedies as may be available at law or in equity in the event of a violation of the provisions contained in this Section 24. The restrictions contained in this Section 24 shall not apply to any information which becomes a matter of public knowledge, other than through a violation of these Payment Processing Terms or other agreements between the parties. Tebra’s obligation to return Customer Information in Section 8 of the Terms of Service and in the Term, Termination. and Return of Data FAQ referenced in Section 8 of the Terms of Service does not apply to Cardholder, transaction or other data that Tebra may store, transmit or process under these Payment Processing Terms.
D. Marks. Each Association is the sole owner of its respective Marks. Merchant agrees not to contest the Association ownership of Marks for any reason. Merchant acknowledges that each Association has the right to immediately prohibit Merchant from using its respective Marks at any time for any reason.
25. Financial Statements. Merchant shall provide Tebra with an audited financial statement for Merchant’s most recent fiscal year end and/or quarterly financial statements prepared and certified by Merchant’s chief financial officer within 15 days of Tebra’s request therefore.
26. Security, Data Incidents. Merchant will be solely responsible for the security, quality, accuracy, and adequacy of all transactions and information supplied under the Customer Agreement, and will establish and maintain adequate audit controls to monitor the security, quality, maintenance, and delivery of such data. Without limiting the generality of the foregoing, Merchant represents and warrants to Tebra that it has implemented and will maintain secure systems for maintaining and processing information and for transmitting information to Tebra. Tebra shall have no liability whatsoever for the security or availability of any communications connection used in connection with the Payment Processing Services. Merchant acknowledges that Tebra is responsible only for the security of its own proprietary systems, and not for the systems of any third party, including without limitation any Merchant Supplier of Merchant. Merchant shall notify Tebra immediately if Merchant becomes aware of or suspects a Data Incident. Merchant agrees to fully cooperate with Tebra and any Association with respect to any investigation and/or additional requirements related to a suspected Data Incident.
27. Audits.At any reasonable time upon reasonable notice to Merchant, Merchant shall allow auditors, including the auditors of any Association or any third party designated by Tebra or the applicable Association, to review the files held and the procedures followed by Merchant at any or all of Merchant’s offices or places of business. Should Tebra conduct an audit which is not required by the Operating Regulations or is not requested by an Association, such audit will be at Tebra’s sole expense; otherwise the audit shall be at Merchant’s expense. Merchant will assist such auditors as may be necessary for them to complete their audit. If a third-party audit is requested by an Association, and/or required by the Operating Regulations, Tebra may, at its option, and at Merchant’s sole expense, either retain a third party to perform the audit, or require that Merchant directly retain a specific third party auditor. If Tebra requires that Merchant directly retain the auditor, Merchant shall arrange immediately for such audit to be performed, and will provide Tebra and the Associations with a copy of any final audit report.
28. System Requirements and Upgrades. Merchant agrees that the Payment Processing Services shall be provided in accordance with Tebra’s then current systems, standards and procedures and that Tebra shall not be required to perform any special programming, to provide any special hardware or software or to implement any other system, program or procedure for Merchant. Unless otherwise agreed in writing by Tebra, all sales transaction, settlement and other data and information used in connection with the Payment Processing Services shall be provided to Tebra in Tebra’s then current data formats and by means of Tebra’s then current telecommunications configurations and protocols. Tebra may make changes in the Payment Processing Services based upon, but not limited to, technological developments, legislative or regulatory changes, or the introduction of new services by Tebra. Merchant shall comply with all time deadlines, equipment and software maintenance and upgrading requirements to the extent required by the Associations and/or Operating Regulations. Merchant shall use best efforts to comply with all other time deadlines, equipment and software maintenance and upgrading requirements which Tebra may reasonably impose on Merchant from time to time.
29. Limited Acceptance. If so indicated below, Merchant acknowledges and agrees that it wishes to be a Limited Acceptance merchant, which means that Merchant has elected to accept only certain VISA/MasterCard card types as indicated below, or via later notification. Merchant further acknowledges and agrees that Tebra has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance and that Tebra’s obligations do not include policing card types at the point of sale. As a Limited Acceptance Merchant, Merchant will be solely responsible for the implementation of its decision for Limited Acceptance. Merchant will be solely responsible for policing, at the point of sale, the card type(s) of transactions it submits for processing by Tebra. Should Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Tebra may process that transaction and Merchant will pay the applicable fees, charges, and assessments associated with that transaction. For Merchant’s convenience, a general description of VISA/MasterCard card types are:
A. Consumer Credit – a consumer credit card issued by a U.S. Issuer or a commercial credit card issued by a non-U.S. Issuer; this category does not include VISA or MasterCard branded signature-based debit cards.
B. Consumer Debit – a VISA or MasterCard branded signature-based debit card (including certain stored-value and prepaid cards).
C. Commercial – a VISA or MasterCard branded credit card issued by a U.S. Issuer that bears the descriptive term “Business Card”, “Corporate Card”, “Purchasing Card”, “Fleet Card”, or similar descriptive term indicated pursuant to the Operating Regulations.
Only if checked below, Merchant wishes to be a Limited Acceptance Merchant, which means that Merchant will accept only the VISA/MASTERCARD card types indicated below:
- VISA Credit Cards
- VISA Debit Cards (signature based)
- MasterCard Credit
- MasterCard Debit Cards (signature based)
30. Security Interest.The Customer Agreement will constitute a security agreement under the Uniform Commercial Code. Merchant grants to Tebra a security interest in all accounts owned or controlled by Worldpay at Member Bank that are funded with settlement amounts, including the Reserve Account, and the proceeds thereof (collectively, the “Secured Assets”), to secure all of Merchant’s obligations under the Customer Agreement. With respect to such security interest, Tebra will have all rights afforded under the Uniform Commercial Code, any other applicable law, and in equity. In addition to the security interest in the Secured Assets, Tebra shall have a contractual right of setoff against the Secured Assets.
Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default without any action by Tebra or notation in the Tebra’s records, although Tebra may enter such set off on its books and records at a later time. Merchant warrants and represents that no other person or entity has a security interest in the Secured Assets. If a bankruptcy proceeding is filed by or against Merchant under the Bankruptcy Code (whether the petition is filed voluntarily and/or involuntarily), it waives any applicable protection related to the automatic stay provisions of 11 U.S.C. §362 (or any replacement section) and consents to an appropriate reserve of funds being established between the parties pursuant to the Customer Agreement or by Court Order.
31. Modification of Agreement. Except as provided in these Payment Processing Terms, these Payment Processing Terms may only be modified or amended in accordance with Section 11.c of the Terms of Service. Merchant agrees that Tebra may amend the Customer Agreement upon notice to Merchant if such amendment is a requirement of applicable law or an Association.
32. Member Bank. “Member Bank” as used in these Payment Processing Terms means a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with these Payment Processing Terms. Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Tebra or its payment processor at any time.
33. e-Check Services. If Merchant receives e-Check processing services from Tebra, the terms provided at e-Check Services apply in addition to these Payment Processing Terms.
34. Participation in the American Express OptBlue® Program. The terms below are additional terms applicable specifically to American Express Card Acceptance (capitalized terms below not defined elsewhere in the Agreement shall have the meanings assigned in the American Express Operating Rules). With respect to participation in an American Express acceptance program, if there is a conflict between the terms below and other terms in the Customer Agreement, the terms below shall control with respect to American Express transactions only. Merchant shall be bound by American Express Operating Rules, including the Merchant Operating Guide: www.americanexpress.com/merchantopguide. If Merchant elects to participate in the American Express OptBlue Program (“American Express Card Acceptance”), the following terms and conditions apply:
- Merchant must comply with, and accept Cards in accordance with, the terms of its Provider Merchant Agreement and the American Express Merchant Operating Guide, as such terms may be amended from time to time.
- Merchant acknowledges that the American Express Merchant Operating Guide is incorporated by reference into this Agreement. (And is available online at the following web link: https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf).
- Merchant expressly authorizes Provider to submit transactions to, and receive settlement from, American Express on behalf of the Merchant.
- Merchant expressly consents (i) to Provider collecting and disclosing Transaction Data, Merchant Data, and other information about the Merchant to American Express; and (ii) to American Express using such information to perform its responsibilities in connection with the Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communication purposes within the parameters of the Program Agreement, and important transactional or relationship communications from American Express.
- Merchant acknowledges that:
□ By checking this box, Merchant opts out of receiving future commercial marketing communications from American Express.
- Merchant may continue to receive marketing communications, however, while American Express updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.
- Merchant acknowledges that it may be converted to a direct Card acceptance relationship with American Express, if and when its American Express charge volume exceeds certain thresholds defined by American Express, in accordance with the following:
- Merchant expressly agrees that, upon 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 the Merchant for Card acceptance.
- Merchant acknowledges that American Express may use information obtained in the Merchant application at the time of setup to screen, communicate, and/or monitor Merchant in connection with Card marketing and administrative purposes.
- Merchant agrees that it shall not assign to any third party any payments due to it under its respective Provider Merchant Agreement, and further agrees that all indebtedness arising from Charges will be for bona fide sales of goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the Merchant may sell and assign future Transaction receivables to Provider, its affiliated entities and/ or any other cash advance funding source that partners with Provider or its affiliated entities, without consent of American Express.
- Merchant agrees that American Express is a third-party beneficiary to the Agreement and retains all rights, but not obligations, in the Agreement that will fully provide American Express with the ability to enforce the terms of the Provider Merchant Agreement against the Merchant.
- Merchant may opt out of accepting Cards at any time without directly or indirectly affecting its rights to accept Other Payment Products.
- Merchant agrees that Provider may terminate the Merchant’s right to accept Cards if Merchant breaches any of the provisions in this Section or the American Express Merchant Operating Guide.
- Merchant agrees that Provider has the right to immediately terminate a Merchant for cause or fraudulent or other activity, or upon American Express’ request.
- Merchant agrees that its refund policies for purchases on a Card must be at least as favorable as its refund policy for purchases on any Other Payment Products, and further agrees that the refund policy be disclosed to Cardmembers at the time of purchase and in compliance with Applicable Law.
- Merchant acknowledges that it is prohibited against billing or collecting from any Cardmember for any purchase or payment on the Card unless Chargeback has been exercised, the Merchant has fully paid for such Charge, and it otherwise has the right to do so.
- Merchant agrees it must comply with all Applicable Laws, rules and regulations relating to the conduct of the Merchant’s business, including the DSR and PCI DSS, each as described in Chapter 15, “Data Security.”
- Merchant agrees that it will report all instances of a Data Incident immediately to Provider after discovery of the incident.
- Merchant agrees it will cease all use of, and remove American Express Licensed Marks from the Merchant’s website and wherever else they are displayed upon termination of the Provider Merchant Agreement or a Merchant’s participation in the Program.
- Merchant will ensure data quality and agrees that Transaction Data and customer information will be processed promptly, accurately and completely, and will comply with the American Express Technical Specifications.
- Merchant agrees it is solely responsible for being aware of and adhering to privacy and data protection laws and provide specific and adequate disclosures to Cardmembers of collection, use, and processing of personal data.