TERMS AND CONDITIONS - PAYFAC MERCHANTS
This Acquirer Sponsored Merchant Agreement (the “Agreement”) is entered into between Elavon (as defined below), the Member (as defined below), you (“Sponsored Merchant”) and Exact Payments OpCo, LLC. (“Payment Facilitator”) as of the effective on the date these terms are accepted by you (the “Effective Date”). This Agreement is entered into pursuant to the Payment Network Regulations (defined below) to enable Sponsored Merchant to use certain processing services provided through the agreement between Sponsored Merchant and Payment Facilitator (the “Payment Facilitator Agreement”) that are ultimately provided by Elavon as merchant acquirer (the “Services”).
1. Settlement of Transaction; Chargebacks.
Subject to Sponsored Merchant’s compliance with the terms of the Agreement and the Payment Network Regulations, Elavon will, upon receipt of the applicable Cardholder Data and Transaction Information, process the Transactions between the applicable Payment Network and the Sponsored Merchant daily, deposit the associated funds evidenced by Transaction receipts either to a Sponsored merchant-owned demand deposit account or a Payment Facilitator-owned demand deposit account, and provide provisional credit for such funds (less recoupment of any chargebacks, returns, adjustments, fees, fines, penalties, or assessments from the Payment Networks). Sponsored Merchant agrees that if Elavon deposits funds to the Payment Facilitator’s demand deposit account, Elavon will have fulfilled its obligation with respect to such funds, and any dispute regarding Sponsored Merchant’s receipt of such funds will be between Sponsored Merchant and Payment Facilitator. To the extent required, Sponsored Merchant authorizes and appoints Elavon to act as Sponsored Merchant’s agent to collect Transaction amounts from the customer, the issuer or the customer’s financial institution. Sponsored Merchant agrees to accept for chargeback and will be liable to Elavon in the amount of any Transaction disputed by the Cardholder or Issuer for any reason under the Payment Network Regulations. Sponsored Merchant and Payment Facilitator authorize Elavon to offset from any funds due Sponsored Merchant or to debit the applicable demand deposit amount for the amount of all chargebacks.
2. Term and Termination.
This Agreement will be coterminous with the Payment Facilitator Agreement unless terminated earlier by Elavon. Elavon may terminate this Agreement at any time with or without cause.
3. Compliance with Laws and Payment Network Regulations.
3.1. General. Sponsored Merchant will comply with all applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding law in effect from time to time (“Laws”) and rules, operating regulations, guidelines, specifications and related or similar requirements of any Payment Network (“Payment Network Regulations”).
3.2. Security Programs Compliance. Sponsored Merchant will comply with the applicable requirements of the Payment Card Industry Data Security Standards (“PCI-DSS”), including the Cardholder Information Security Program (CISP) of Visa, the Site Data Protection Program (SDP) of MasterCard, the Data Security DISC Program and the PCI-DSS regulations of Discover’s network, and the security programs of any other Payment Network, and any modifications to, or replacements of, such programs that may occur from time to time.
3.3. Office of Foreign Assets Control Compliance. For a Sponsored Merchant operating in the United States, Sponsored Merchant acknowledges that Elavon and Member are entities governed by the Laws of the United States and as such, cannot provide any products or services to Sponsored Merchant or its customers that contravene the Laws of the United States, including the Laws promulgated by OFAC or the United States Department of the Treasury or any successor thereto.
3.4. Export Laws Compliance.
(a) United States. For a Sponsored Merchant operating in the United States, Sponsored Merchant will comply with all United States export Laws governing the export and re-export of hardware, software or technology applicable to the Services and Equipment.
(b) Canada. For a Sponsored Merchant operating in Canada, Sponsored Merchant will comply with all Canadian export Laws, including the list and guide maintained by Export Controls Division of Foreign Affairs, Trade and Development Canada, the Corruption of Foreign Public Officials Act (Canada) and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, governing the export and re-export of hardware, software or technology applicable to the Services and Equipment. Company will not, and will not request Elavon to, export, directly or indirectly, any technical data or any product using any such data to any country for which the Canadian government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
4. Data Retention, Disclosure and Use.
4.1. Sponsored Merchant Retention, Disclosure, and Use. Sponsored Merchant will retain Cardholder Data and Transaction Information for such periods of time required by Laws and the Payment Network Regulations and thereafter will destroy, in a manner that will render the information unreadable, all such information. Sponsored Merchant will not disclose Cardholder Data or Transaction Information to any third party, except to Payment Facilitator, a Service Provider, an Elavon service provider, or as otherwise required by Laws and the Payment Network Regulations. Sponsored Merchant will not retain or store magnetic stripe or CVV2/CVC2/CID data after authorization for any purpose. After authorization, Sponsored Merchant may retain only the customer account number, name, and card expiration date if Sponsored Merchant has a reasonable business purpose to retain such information. Sponsored Merchant will only use the Cardholder Data and Transaction Information to support Payment Facilitator’s services and the Services.
4.2. Elavon Disclosure and Use. Any Cardholder Data, Transaction Information and information regarding Sponsored Merchant, its principals, affiliates, or agents that Elavon otherwise obtains in connection with the Agreement may be (i) used by Elavon and its affiliates, third-party contractors, agents, and referral partners (a) to provide the Services and to carry out related administrative and account maintenance functions and internal fraud and compliance monitoring; (ii) disclosed to credit rating agencies and to the financial institution where the demand deposit account is maintained, if applicable; (iii) used to develop Elavon’s products or services generally; (iv) used or disclosed by Elavon in the course of any proposed s sale or other change to Elavon’s business; (v) collected, used, disclosed and retained by Elavon as required or permitted by Laws. Elavon may prepare, use, and share with third parties, aggregated, non-personally identifiable information derived from Transaction Information of all of Elavon’s customers or specific segments of Elavon’s customers.
5. Business Purpose.
Sponsored Merchant represents that it is obtaining and using the Services from Elavon to facilitate lawful business Transactions between Sponsored Merchant and its customers and using the associated demand deposit account only for lawful business purposes.
6. Disclaimer of Warranties.
THE SERVICES ARE PROVIDED “AS IS,” AND ELAVON DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES AND SPONSORED MERCHANT’S USE OF THIRD PARTY SERVICES, EQUIPMENT, SOFTWARE, OR DATA IN CONNECTION WITH THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, TITLE, SECURITY, NONINFRINGEMENT, UNINTERRUPTED OR ERROR-FREE USE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE.
7. Indemnification.
Sponsored Merchant will indemnify and defend Elavon, its affiliates, and their respective employees, officers, directors, and agents against losses, damages, liabilities, fines, judgements and expenses (including all reasonable attorneys’ fees) (collectively, “Losses”) in connection with claims, actions, demands or proceedings (made or threatened) brought by a third-party arising out of (a) any Transaction processed; (b) Sponsored Merchant’s breach of the Agreement or the Payment Facilitator Agreement; (c) Sponsored Merchant’s or its Service Providers’ gross negligence or willful misconduct; (d) Sponsored Merchant’s or its Service Providers’ violation of Laws or Payment Network Regulations; or (e) any issue between Sponsored Merchant and Payment Facilitator. Sponsored Merchant will not enter into any settlement that imposes any liability or obligation on any of the Elavon indemnified parties, or that contains any admission or acknowledgement of wrongdoing (whether in tort or otherwise), without Elavon’s prior written consent. Elavon may join in the defense, with its own counsel, at its own expense.
8. Limitation of Liability.
Elavon’s aggregate liability for any Losses, regardless of the form of action, arising out of the Agreement or Elavon’s performance or non-performance of Services under any theory of law or equity (whether in contract, tort, negligence, strict liability, by statute, or otherwise), will not exceed, in the aggregate, the lesser of (a) an amount equal to the fees paid by Sponsored Merchant for the Services during the three months immediately preceding the event giving rise to the Losses, exclusive of fees and variable costs incurred by Elavon to process Transactions such as interchange costs, assessments, charges, and fees imposed by a third party, and (b) $50,000. In no event will Elavon or its agents, officers, directors, or employees be liable to Sponsored Merchant for indirect, exemplary, punitive, special, or consequential damages in connection with the Agreement under any theory of law or equity (whether in contract, tort, negligence, strict liability, by statute, or otherwise). Member will have no liability to Sponsored Merchant or Payment Facilitator under this Agreement. Elavon and Member will not be responsible or liable for any actions or omissions by Payment Facilitator.
9. General Provisions.
9.1. Entire Agreement. The Agreement, the Payment Facilitator Agreement, and any amendment or supplement to them constitute the entire agreement between the parties, and all prior or other agreements, written or oral, are superseded by the Agreement.
9.2. Jurisdiction and Venue; Governing Law
(a) United States. For a Sponsored Merchant operating in the United States, for all disputes relating to the enforceability of the arbitration agreement set forth below in Section 9.3, or to the extent the arbitration agreement set forth in Section 9.3 is determined to be unenforceable or inapplicable to any claim, controversy or dispute between the Sponsored Merchant and Elavon, whether sounding in contract, tort or otherwise, then, the laws of the state of Georgia, without giving effect to its choice-of-law rules will govern any claim, controversy or dispute to be adjudicated in a court of law or equity, and each party hereby submits to the exclusive jurisdiction of the courts of the state of Georgia (Fulton County) or the United States District Court for the Northern District of Georgia with respect to any such claim, controversy or dispute. The parties each waive any objection to venue with respect to any actions brought in those courts. All performances and Transactions under the Agreement will be deemed to have occurred in the state of Georgia, and Sponsored Merchant’s entry into and performance of the Agreement will be deemed to be the transaction of business within the state of Georgia.
(b) Canada. For a Sponsored Merchant operating in Canada, for all disputes relating to the enforceability of the arbitration agreement set forth below in Section 9.3, or to the extent the arbitration agreement set forth in Section 9.3 is determined to be unenforceable or inapplicable to any claim, controversy or disputed between the Sponsored Merchant and Elavon, whether in contract, tort or otherwise, then the Laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without giving effect to the choice-of-law rules of the Province of Ontario, will govern such matter. The parties agree that all performances and Transactions in Canada will be deemed to have occurred in the Province of Ontario and that Sponsored Merchant entry into and performance of the Agreement will be deemed to be the transaction of business within the Province of Ontario. Any action or proceeding relating to or arising from the Agreement must be brought, held, or otherwise occur exclusively in Toronto, Sponsored Merchant, and the parties attorn to the exclusive jurisdiction of the courts of Ontario. Elavon and Sponsored Merchant waive all right to trial by jury in any action or proceeding relating to the Agreement.
9.3. Arbitration.
(a) United States. For a Sponsored Merchant operating in the United States, all claims, controversies or disputes between Sponsored Merchant and Elavon arising out of or related to the Agreement, or the relationship between the parties will be submitted to and decided by arbitration held in the city and state in which the Sponsored Merchant maintains its principal place of business and in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (a copy of which can be reviewed at www.adr.org) except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the state in which the arbitration is conducted and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The arbitrator will have the authority to award any remedy or relief that a federal court in the state in which the arbitration is conducted could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide Elavon’s or the Sponsored Merchant’s claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own attorney’s fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, Elavon will bear all administrative cost of the arbitration including the arbitrator’s fees and will reimburse the Sponsored Merchant’s filing fee if the Sponsored Merchant initiates the arbitration. The parties agree that the underlying agreement between the parties involves interstate commerce and that, notwithstanding the choice of law provision in Section 9.2, any arbitration will be governed by the Federal Arbitration Act.
(b) Canada. For Sponsored Merchants operating in Canada, all claims, controversies or disputes between Sponsored Merchant and Elavon arising out of, or in connection with, this Agreement, or in respect of any legal relationship associated with it or derived from it, will be finally resolved by arbitration administered by the Alternative Dispute Resolution Institute of Canada Inc. under its ADRIC Arbitration Rules (a copy of which can be reviewed at http://adric.ca/arbrules/), except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the Province of Ontario and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The seat of arbitration will be Toronto, Ontario. The language of the arbitration will be English. The arbitrator will have the authority to award any remedy or relief that a provincial court in the Province of Ontario could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide Elavon’s or the Sponsored Merchant’s claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own legal fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, Elavon will bear all administrative cost of the arbitration including the arbitrator’s fees and will reimburse the Sponsored Merchant’s filing fee if the Sponsored Merchant initiates the arbitration.
9.4. Assignability. The Agreement may be assigned by Member or Elavon. Sponsored Merchant and Payment Facilitator will not assign the Agreement, directly, by operation of law, or by change of control of such party, without Elavon’s prior written consent.
9.5. Notices. Any written legal notice to the other party will be deemed received upon the earlier of (a) actual receipt, (b) five business days after being deposited in the United States mail, return receipt requested, or (c) two business days after being deposited with a nationally recognized overnight carrier. Such notices will be addressed to Sponsored Merchant’s address on the Sponsored Merchant Application, or the last address shown on Elavon’s records, or to Elavon at 7300 Chapman Highway, Knoxville, Tennessee 37920, or such other addresses as Elavon may designate in writing.
9.6. Amendments. Member and Elavon may propose amendments or additions to the Agreement. Member or Elavon will inform Sponsored Merchant of a proposed change in a periodic statement or other notice. Sponsored Merchant will be deemed to have agreed to the change if Sponsored Merchant continues to present Transactions after 30 days following the issuance of the statement or notice.
9.7. Severability and Waiver. If any provision of the Agreement is found to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions of the Agreement will not in any way be affected or impaired thereby. None of the failure to exercise, the delay by any party to exercise, or the partial exercise of any right under the Agreement will operate as a waiver or estoppel of such right, nor will such amend the Agreement. All waivers requested by a party must be signed by the waiving party.
9.8. Independent Contractors. Elavon, Payment Facilitator, and Sponsored Merchant will be deemed independent contractors, and no one will be considered an agent, joint ventures, or partner of the other, unless and to the extent otherwise specifically stated in the Agreement. The Agreement has been entered into solely for the benefit of the parties to the Agreement and is not intended to create an interest in any third party except where explicitly stated otherwise.
9.9. Survival. All of the obligations of each party that by their nature should survive termination or expiration of the Agreement in order to achieve its purposes, including Sections 4, 4, 7, 8, 9.2, and 9.3, will survive and remain binding upon and for the benefit of the parties.
9.10. Counterparts; Electronic Delivery. The Agreement may be signed in one or more counterparts, each of which will constitute an original and all of which, taken together, will constitute one and the same agreement. Signed counterparts may be delivered by fax or electronic means (e.g., .pdf documents via e-mail), and will constitute signed originals.
9.11. Language. The parties acknowledge that they have required the Agreement and all related documents to be drawn up in the English language. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous les documents qui s’y rattachent soient rédigés en langue anglaise.
10. Definitions.
Capitalized terms used but not otherwise defined in the Agreement will have the following meanings:
“Cardholder” means the individual in whose name a Payment Device has been issued and any authorized user of such Payment Device.
“Cardholder Data” has the meaning stated in the Payment Card Industry (PCI) Data Security Standard (DSS) and Payment Application Data Security Standard (PA-DSS) Glossary of Terms, Abbreviations, and Acronyms.
“Credit Card” means a card or device bearing the symbol of any Credit Card Association and associated with a revolving line of credit that can be used to purchase goods and services from Sponsored Merchant or to pay an amount due to Sponsored Merchant or to obtain cash advances.
“Credit Card Associations” means (i) Visa; (ii) MasterCard; (iii) American Express; (iv) Discover; (v) Diners Club International Ltd.; (vi) JCB International Co., Ltd.; (vii) China UnionPay Co., Ltd; and (viii) any other organization or association that hereafter contracts with Elavon to authorize, capture, and settle Transactions effected with Credit Cards issued or sponsored by such organization or association, and any successor organization or association to any of the foregoing.
“Debit Card” means a card or device bearing the symbol(s) of one or more electronic funds transfer networks or Credit Card Associations, which may be used to purchase goods and services from Sponsored Merchant or to pay an amount due to Sponsored Merchant by an electronic debit to the Cardholder’s designated deposit account. A “Debit Card” includes (i) a card or device that bears the symbol of a Credit Card Association and may be used to conduct signature-based, offline debit Transactions; and (ii) a card or device that bears the symbol of an electronic funds transfer network and can be used to conduct PIN-based, online debit Transactions.
“Elavon” means, as applicable, Elavon, Inc., a Georgia corporation, or Elavon Canada Company, a company validly existing and organized in Nova Scotia. Elavon is a registered member service provider of each Member.
“Member” means a financial institution designated by Elavon that is a principal, sponsoring affiliate or other member of Visa, MasterCard or other member of the applicable Payment Network. Elavon may change the Member at any time and will provide notice to Sponsored Merchant of such change.
“Payment Device” means any device or method used for the purpose of obtaining credit or debiting a designated account, including a Credit Card, Debit Card, and any other financial transaction device or method, including an electronic gift card, check (whether converted into electronic form or used as a source document for an electronic fund transfer), electronic balance transfer card, stored value card, “smart” card, or other device created to be used for the purpose of obtaining credit or debiting a designated account.
“Payment Network” means any Credit Card Association, electronic funds transfer network, electronic check services association or automated clearing house association, governmental agency or authority, and any other entity or association that issues or sponsors a Payment Device or operates a network on which a Payment Device is processed.
“Service Provider” means any entity that stores, processes, transmits or accesses Cardholder Data or Transaction Information on behalf of Sponsored Merchant or that provides software to Sponsored Merchant for transaction processing, storage, or transmission, except to the extent such services are performed by the entity in its capacity as a third-party contractor of Elavon performing Elavon’s obligations under the Agreement.
“Transaction” means any action between Sponsored Merchant and a Cardholder or Payment Network that results in transmission of Cardholder Data or Transaction Information (e.g. payment, purchase, refund, return, chargeback, authorization request, settlement submission, transaction inquiry, decryption, conversion to/from tokens).
“Transaction Information” means any data or information resulting from a Transaction. Transaction Information includes payment processing-related transactional information that may be collected or stored by Elavon, including the price paid for products or services, date, time, approval, unique transaction number, store identifier, and customer bank information relating to a Transaction.