TERMS OF SERVICE

These Terms of Service (TOS) and the other portions of the Agreement govern the Merchant’s participation in the Program. The TOS is incorporated into and made part of the Agreement and the signature by an authorized representative of the Merchant on the Merchant Application, or the transmission of a Transaction Receipt or other evidence of a Transaction, shall be the Merchant’s acceptance of and agreement to abide by the terms and conditions contained in the Agreement. No strikeover of the preprinted text of the TOS shall be effective. Merchant acknowledges that it has received, understands, and agrees to be bound by the Agreement.

 

SECTION A – GENERAL PROVISIONS

1. DEFINITIONS. Definitions used within this TOS are listed alphabetically in the Glossary.

2. RULES OF CONSTRUCTION. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement. Singular terms shall include the plural, and vice versa, unless the context otherwise requires. The words “hereof,” “herein,” and “hereunder,” and words of similar import when used in the TOS shall refer to the TOS and not to any particular provision of the TOS. The word “day” shall mean “calendar day,” unless specifically stated otherwise. In the event of a conflict between the terms of Section (A) – General Provisions, and any subsequent Section of the TOS, the terms of the subsequent Section shall prevail.

3. ACCEPTANCE OF PAYMENT DEVICES. Merchant shall determine in accordance with the Payment Network Regulations and the Agreement which types of Payment Devices it will agree to accept as a form of payment from its Customers. The terms and conditions for the acceptance of the applicable Payment Devices and Merchant’s use of the Payment Device Processing Services are set forth in the Agreement and in the Merchant Operating Guide (the “MOG”), incorporated herein and located at our website http://www.allegiancemerchantservices.com/resources/about-us/our-policies/terms-and-conditions/merchant-operating-guide/. Each schedule, exhibit, addendum or attachment to the Agreement shall be governed by the TOS and the applicable provisions of the MOG, as well as by the terms set forth in the Merchant Application.

4. TRANSACTIONS.

a. Merchant Compliance. Merchant must comply with all the requirements under the Agreement. Merchant must also comply with the procedures set forth in the MOG and any other guides, manuals, or rules provided in writing to Merchant by Allegiance Merchant Services from time to time.

b. Settlement of Transactions.

i. Deposits. Merchant agrees that the Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Section 365, as amended from time to time. For purposes of Transactions in Canada, Merchant agrees that the Agreement is a contract for the advance of credit to Merchant within the meaning of Section 11.01(b) of the Companies’ Creditors Arrangement Act (Canada) and within the meaning of Section 65.1(4)(b) of the Bankruptcy and Insolvency Act (Canada). Subject to this Section, Allegiance Merchant Services and Member will deposit to the DDA all funds evidenced by Transaction Receipts complying with the terms of the Agreement and the Payment Network Regulations and will provide Merchant provisional credit for such funds (less recoupment of any Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment payments and other payments due under the Agreement). Merchant acknowledges that its obligation to Allegiance Merchant Services and Member for all amounts owed under the Agreement arises out of the same transaction as Allegiance Merchant Services’s and Member’s obligation to deposit funds to the DDA and such amounts are owed in the ordinary course of business.

ii. Provisional Credit. Merchant acknowledges that all credits for funds provided to it are provisional and subject to reversal in the event that Allegiance Merchant Services and Member do not receive payment of corresponding settlement amounts from the Payment Networks. Merchant further acknowledges that all credits are subject to adjustments for inaccuracies and errors (including rejects) and Chargebacks in accordance with the Agreement and the Payment Network Regulations, whether or not a Transaction is charged back by the Issuer or Customer. Merchant authorizes Allegiance Merchant Services or Member to initiate reversal or adjustment (debit or credit) entries and to initiate or suspend such entries in accordance with the Agreement as may be necessary to grant or reverse provisional credit for any Transaction. Further, Allegiance Merchant Services may delay Merchant-issued Customer credits for up to five (5) business days for accounting verification. Customer credits issued by Merchant to PIN-Debit Cards will not be subject to this delay. Member or Allegiance Merchant Services may elect to grant conditional credit for individual or groups of Transaction Receipts. Final credit for Transaction Receipts will be granted within Member’s and Allegiance Merchant Services’s sole discretion.

iii. Original Transaction Receipts. Under no circumstances will Allegiance Merchant Services or Member be responsible for processing returns, refunds, or adjustments related to Transactions not originally processed by Allegiance Merchant Services and Member.

c. Processing Limits. Allegiance Merchant Services may impose a cap on the dollar amount of Transaction Receipts that it will process for Merchant as indicated on the Merchant Application as Merchant’s annual volume or as otherwise established by Allegiance Merchant Services. This limit may be changed by Allegiance Merchant Services from time to time, without prior notice to Merchant. If Merchant exceeds the established limit, Allegiance Merchant Services may suspend the processing of Transaction Receipts, and either return all Transaction Receipts evidencing funds over the cap to Merchant or hold those deposits in a separate account or Reserve Account.

d. Chargebacks. Merchant is fully liable to Allegiance Merchant Services and Member for all Transactions returned to Allegiance Merchant Services or Member for whatever reason including all Chargebacks. Merchant will pay Allegiance Merchant Services and Member for all Chargebacks. Merchant agrees to accept for Chargeback, and will be liable to Allegiance Merchant Services and Member in the amount of any Transaction for which the Customer or Issuer disputes the validity of the Transaction for any reason. Merchant authorizes Allegiance Merchant Services and Member to offset from funds due Merchant for Transaction activity or to debit the DDA, the Reserve Account, or any other account held at Member or at another financial institution for the amount of all Chargebacks including, as applicable, any currency fluctuations. Merchant will fully cooperate with Allegiance Merchant Services and Member in complying with the Payment Network Regulations regarding all Chargebacks. Guarantors are personally liable to Allegiance Merchant Services and Member for all Chargebacks.

5. DEMAND DEPOSIT ACCOUNT (DDA)

a. DDA and ACH Authorization. Merchant will establish and maintain with Member (or with another ACH participating financial institution acceptable to Member) one or more DDAs to facilitate payment for Transactions. Merchant will maintain sufficient funds in the DDA to accommodate all Transactions contemplated by the Agreement and all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment payments and other payments due under the Agreement. Merchant irrevocably authorizes Allegiance Merchant Services, Member, and their respective authorized vendors and agents who provide services under the Agreement, to initiate ACH debit and credit entries to the DDA, the Reserve Account or any other account maintained by Merchant at any institution that is a receiving member of the ACH network, in order to make payments to or collect payments from Merchant due under the Agreement. The foregoing authorizations will remain in effect after termination of the Agreement until all of Merchant’s obligations to Allegiance Merchant Services and Member have been paid in full. Merchant also authorizes Allegiance Merchant Services’s or Member’s vendors or agents to debit the DDA for any fees due to such vendors or agents under the Agreement. Merchant must obtain prior consent from Member and Allegiance Merchant Services to change the DDA. If Merchant does not get that consent, Allegiance Merchant Services or Member may immediately and without notice terminate the Agreement and may take any other action either of them deems necessary in their discretion. Allegiance Merchant Services and Member have the right to rely upon written instructions submitted by Merchant requesting changes to the DDA. In the event Merchant changes the DDA, the ACH debit and credit authorization established hereunder will apply to the new account and Merchant shall provide Allegiance Merchant Services and Member such information regarding the new DDA as they deem necessary to effect payments to and from the new DDA. It may take Allegiance Merchant Services up to ten (10) business days after Allegiance Merchant Services’s receipt of a written notice from Merchant to reflect in its system any change to Merchant’s DDA. Merchant may request from Allegiance Merchant Services written confirmation of Allegiance Merchant Services’s and Member’s consent to change the DDA. If the DDA is maintained with Member, Member will deposit all funds evidenced by Transaction Receipts to the DDA, subject to Section (A)(4) of the TOS. Allegiance Merchant Services and Member have the right to delay, within their discretion, crediting the DDA with funds evidenced by submitted Transaction Receipts. To the extent required, Merchant authorizes Member or Allegiance Merchant Services to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant provisional credit for any entry. Member will make deposits to the DDA pursuant to the Agreement and the ACH authorization. To the extent required, Merchant authorizes and appoints Member to act as its agent to collect Transaction amounts from the Issuer, the Customer or the Customer’s financial institution. Member, in its sole discretion or at Allegiance Merchant Services’s direction, may grant Merchant provisional credit for Transaction amounts in the process of collection, subject to receipt of final payment by Member and Allegiance Merchant Services and subject to all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment payments and any other payments due under the Agreement.

b. Asserted Errors. It is the responsibility of Merchant to reconcile the statements regarding Transaction activity received from Allegiance Merchant Services, any Payment Network, and any third party vendors with the statements Merchant receives for Merchant’s DDA. Merchant must promptly examine all statements relating to the DDA and immediately notify Allegiance Merchant Services and Member in writing of any errors in the statement Merchant received from Allegiance Merchant Services. Merchant’s written notice must include:

(i) Merchant name and account number; (ii) the dollar amount of the asserted error; (iii) a description of the asserted error; and (iv) an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by Allegiance Merchant Services within forty- five (45) days after the month end date on the statement containing the asserted error. If Merchant fails to provide such notice to Allegiance Merchant Services within said forty-five (45) days, Allegiance Merchant Services and Member shall not be liable to Merchant for any errors Merchant asserts at a later date. Merchant may not make any claim against Member or Allegiance Merchant Services for any loss or expense relating to any asserted error for sixty (60) days immediately following Allegiance Merchant Services’s receipt of Merchant’s written notice. During that sixty (60) day period, Allegiance Merchant Services will be entitled to investigate the asserted error, and Merchant shall not incur any cost or expense in connection with the asserted error without notifying Allegiance Merchant Services.

c. Depository Institution. Merchant authorizes its depository institution to grant Allegiance Merchant Services and/or Member access to any and all information or records regarding the DDA. Merchant authorizes Allegiance Merchant Services and/or Member to direct the depository institution to hold funds in the DDA in an amount which Allegiance Merchant Services and/or Member, in their respective discretion, either individually or collectively, deem sufficient to fully protect Allegiance Merchant Services’s and Member’s rights under the Agreement or to block or restrict Merchant’s or others’ access to funds in the DDA (whether or not such funds are specifically related to any previous deposit for any Transaction Receipt). Merchant directs the depository institution to immediately comply with any such direction from Allegiance Merchant Services or Member.

d. Indemnity. Merchant will indemnify and hold harmless Allegiance Merchant Services and Member for any action they take against the DDA or Reserve Account pursuant to the Agreement. Merchant will also indemnify and hold harmless the depository institution at which it maintains its DDA for acting in accordance with any instruction from Allegiance Merchant Services and/or Member regarding the DDA.

6. SECURITY INTERESTS; RESERVE ACCOUNT; RECOUPMENT AND SET-OFF.

a. Security Interests.

Security Agreement. The Agreement constitutes a security agreement under the Uniform Commercial Code. Merchant grants to Allegiance Merchant Services and Member a security interest in and lien upon (and in Quebec, a hypothec on): (a) all funds at any time in the Reserve Account or DDA, regardless of the source of such funds, and (b) all funds underlying present and future Transaction Receipts; and (c) any amount which may be due to Merchant under the Agreement, including, without limitation, all rights to receive any payments or credits under the Agreement (collectively, the “Secured Assets”). Merchant agrees to provide other security to Allegiance Merchant Services and Member, upon request, to secure its obligations under the Agreement. These security interests and liens (and hypothecs) will secure all of Merchant’s obligations under the Agreement and any other agreements now existing or later entered into between Merchant and Allegiance Merchant Services and/or Member including Merchant’s obligation to pay any amounts due and owing to Member or Allegiance Merchant Services. Allegiance Merchant Services and Member may execute this security interest (and hypothecs), without notice or demand of any kind, by making an immediate withdrawal or by restricting Merchant’s access to the Secured Assets.

i. Perfection. Upon request of Allegiance Merchant Services or Member, Merchant will execute one (1) or more control agreements or other documents to evidence or perfect this security interest (and hypothec). Merchant represents and warrants that no other person or entity has a security interest (or hypothec) in the Secured Assets. With respect to such security interests and liens (and hypothecs), Allegiance Merchant Services and Member will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. Merchant will obtain from Allegiance Merchant Services and Member written consent prior to granting a security interest (or hypothec) of any kind in the Secured Assets to a third party. Merchant agrees that this is a contract of recoupment and Allegiance Merchant Services and Member are not required to file a motion for relief from a bankruptcy action automatic stay to realize any of the Secured Assets. Nevertheless, Merchant agrees not to contest or object to any motion for relief from the automatic stay filed by Allegiance Merchant Services or Member. Merchant authorizes and appoints Allegiance Merchant Services as Merchant’s attorney in fact to sign Merchant’s name to any control agreement used for the perfection of any security interest or lien (or hypothec) granted hereunder.

b. Reserve Account.

i. Establishment. Allegiance Merchant Services and/or Member may establish a Reserve Account at any time for the purpose of providing a source of funds to pay Member and Allegiance Merchant Services for any and all amounts owed by Merchant. The Reserve Account shall be maintained with sums sufficient to satisfy Merchant’s current and/or future obligations as determined by Member or Allegiance Merchant Services. Member and Allegiance Merchant Services shall have sole control of the Reserve Account. Member and/or Allegiance Merchant Services may, at any time, require that the amount on deposit in the Reserve Account be increased.

ii. Funding. Member and Allegiance Merchant Services may fund the Reserve Account by any one or more of the following means.
aa. Member and Allegiance Merchant Services may require Merchant to deposit into the Reserve Account funds in an amount determined by Allegiance Merchant Services;
bb. Member and Allegiance Merchant Services may debit the DDA in any amount; or
cc. Member and Allegiance Merchant Services may deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant.

iii. Use of Funds in Reserve Account. Member or Allegiance Merchant Services may, without notice to Merchant, apply funds in the Reserve Account against any outstanding amounts Merchant owes or future amounts Merchant will owe under the Agreement or any other agreement between Merchant and Member or Allegiance Merchant Services. Also, Member or Allegiance Merchant Services may debit the Reserve Account to exercise their rights under the Agreement including, without limitation, their rights of set-off and recoupment to collect any amounts due to Member or Allegiance Merchant Services. Further, Merchant agrees that Allegiance Merchant Services or Member may be required to send funds in a Reserve Account to a third party in response to a tax levy or other court order.

iv. Termination of Reserve Account. Funds held in the Reserve Account shall remain in the Reserve Account until each of the following has occurred: (1) the Agreement has been terminated; and (2) Merchant has paid in full all amounts owing or that could ever be owed under the Agreement, including all Chargebacks, returns, adjustment, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment payments and any other payments due under the Agreement. In no event shall Merchant be entitled to a return of any funds remaining in the Reserve Account before two-hundred-seventy (270) days following the effective date of termination of the Agreement.

c. Recoupment and Set-off. Member and Allegiance Merchant Services have the right of recoupment and set-off. This means that they may offset any outstanding or uncollected amounts owed to them from: (i) any amounts they would otherwise be obligated to deposit into the DDA; and (ii) any other amounts they may owe Merchant under the Agreement or any other agreement. Merchant acknowledges that in the event of a Bankruptcy Proceeding, in order for Merchant to provide adequate protection under Bankruptcy Code Section 362 or applicable law to Allegiance Merchant Services and Member, and in order to ensure that Allegiance Merchant Services and Member do not and are not obliged to advance credit to Merchant, Merchant must create or maintain the Reserve Account as required by Allegiance Merchant Services and/or Member and either of them shall have the right to offset against the Reserve Account for any and all obligations Merchant may owe to Allegiance Merchant Services and Member, without regard to whether the obligations relate to Transaction Receipts initiated or created before or after the initiation of the Bankruptcy Proceeding or the filing of the petition, motion, request for stay or other proceeding in connection with a Bankruptcy Proceeding.

d. Remedies Cuulativem. The rights conferred upon Member and Allegiance Merchant Services in this Section are not intended to be exclusive of each other or of any other rights and remedies of Member and Allegiance Merchant Services under the Agreement, at law or in equity. Rather, each and every right of Member and Allegiance Merchant Services under the Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.

7. FEES; OTHER AMOUNTS OWED; TAXES.

a. Fees. Merchant will pay Member and Allegiance Merchant Services fees for services, supplies, and equipment in accordance with the Agreement and any additional application or setup form(s). Such fees will be calculated and debited from the DDA or the Reserve Account once each day or month for the previous day’s or month’s activity as applicable, or will be deducted from the funds due Merchant under the Agreement. In addition, Merchant will pay Allegiance Merchant Services at its standard rates for research including, but not limited to, research required to respond to any third party or government subpoena, levy, or garnishment on Merchant’s account. Allegiance Merchant Services may adjust the fees in accordance with Section (A)(18)(p) below.

b. Other Amounts Owed. Merchant will immediately pay Allegiance Merchant Services or Member any amount incurred by Allegiance Merchant Services or Member attributable to the Agreement, including, without limitation, Chargebacks, returns, adjustments, fees, fines, penalties (including all fines and penalties assessed by the Payment Networks as a result of Merchant’s Transaction processing), assessments from the Payment Networks, Leased Equipment payments and any other payments due under the Agreement. Allegiance Merchant Services or Member may offset these amounts from funds otherwise owed by Allegiance Merchant Services or Member to Merchant or may debit these amounts from Merchant’s DDA or Reserve Account by ACH, and in the event such offset or ACH debit does not fully reimburse Allegiance Merchant Services or Member for the amount owed, Merchant will immediately pay Allegiance Merchant Services or Member such amount. Allegiance Merchant Services will charge interest, as allowed by Law, on all uncollected items that are more than thirty (30) days past due.

c. Taxes. Merchant is also obligated to pay all taxes and other charges imposed by any governmental authority on the goods and services provided under the Agreement. If Merchant is a tax-exempt entity, Merchant will provide Allegiance Merchant Services and Member with an appropriate certificate of tax exemption.

8. ACCURACY OF INFORMATION; INDEMNIFICATION; LIMITATION OF LIABILITY.

a. Accuracy of Information. Merchant represents and warrants to Member and Allegiance Merchant Services that all information provided to Allegiance Merchant Services in the Merchant Application, in the bid process if applicable, or otherwise in the Agreement is true and complete and properly reflects the business, financial condition and principal partners, owners, officers, or ownership of Merchant. Merchant must promptly notify Allegiance Merchant Services in writing of any changes to such information, including, without limitation, any additional location or new business at which Merchant desires to accept Payment Devices, the identity of principals and/or owners, the form of business organization (i.e., sole proprietorship, partnership, etc.), type of goods and services provided, and how Transactions are completed (i.e., by telephone, mail, electronic commerce, or in person at Merchant’s place of business). The notice must be received by Allegiance Merchant Services at least ten (10) business days prior to the change. Merchant will provide any additional information requested by Allegiance Merchant Services within a reasonable time. Allegiance Merchant Services has the right to rely upon written instructions submitted by Merchant to request changes to Merchant’s business information. Merchant may request written confirmation of Allegiance Merchant Services’s consent to the changes to Merchant’s business information. Merchant will defend, indemnify, and hold harmless Member and Allegiance Merchant Services for all losses and expenses incurred by Member or Allegiance Merchant Services arising out of any such change, whether or not reported to Allegiance Merchant Services, or Merchant’s failure to provide requested information. Merchant will not submit Transactions for processing to Allegiance Merchant Services or Member for any businesses, products, or methods of selling other than those set forth in the Merchant Application at the time Merchant applies for services without the prior written consent of Allegiance Merchant Services. Allegiance Merchant Services may immediately terminate the Agreement upon notification by Merchant of a change to the information in the Merchant Application. Merchant authorizes Allegiance Merchant Services and Member to contact credit reporting agencies and Merchant’s creditors to make inquiries and obtain reports regarding Merchant’s credit standing upon Allegiance Merchant Services’s or Member’s receipt of the Merchant Application.

b. Indemnification. Merchant will be liable for and indemnify, defend, and hold harmless Allegiance Merchant Services, Member and their respective employees, officers, directors, and agents against all claims, including claims made by third parties, losses, damages, liabilities or expenses arising out of the Agreement and for all reasonable attorneys’ fees and other costs and expenses paid or incurred by Member and/or Allegiance Merchant Services in the enforcement of the Agreement, including those resulting from any Transaction processed under the Agreement or any breach by Merchant of the Agreement and those related to any Bankruptcy Proceeding.

c. Limitation of Liability. Merchant acknowledges that Allegiance Merchant Services’s and Member’s fees for the Processing Services provided to Merchant by Allegiance Merchant Services and Member are very small in relation to the funds advanced to Merchant for Transactions and consequently Allegiance Merchant Services’s and Member’s willingness to provide these services is based on the liability limitations contained in the Agreement. Therefore, in addition to greater limitations on Allegiance Merchant Services’s or Member’s liability that may be provided elsewhere, any liability of Allegiance Merchant Services and Member under the Agreement, whether to Merchant or any other party, whatever the basis of the liability, will not exceed, in the aggregate, an amount equal to the fees paid by Merchant during the last three (3) months. In no event will Allegiance Merchant Services, Member, or their agents, officers, directors, or employees be liable for indirect, exemplary, punitive, special, or consequential damages.

d. Performance. Allegiance Merchant Services and Member will perform all services in accordance with the Agreement. Allegiance Merchant Services makes no other warranty, express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. Allegiance Merchant Services and Member disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. Neither Allegiance Merchant Services nor Member shall be liable for any failure or delay in its performance of the Agreement if such failure or delay arises for reasons beyond the control of Allegiance Merchant Services or Member and without the fault or negligence of Allegiance Merchant Services or Member.

9. REPRESENTATIONS AND WARRANTIES. Merchant represents and warrants to Allegiance Merchant Services and Member as of the time the Agreement is effective, and reaffirm to Allegiance Merchant Services and Member each time a Transaction is effected during the Initial Term or any Renewal Term of the Agreement, the following:

a. Organization. Merchant is a corporation, company, limited liability company, unlimited liability company, limited liability partnership, limited partnership, general partnership, business trust, association or sole proprietorship validly existing and organized in the United States, or validly existing and federally organized in Canada or in a province or territory of Canada, as applicable.

b. Corporate Power. Merchant and the persons signing the Agreement have the power to execute and perform the Agreement. Merchant represents and warrants that the person executing the Agreement is duly authorized to bind Merchant and each affiliated entity identified in the Agreement to all provisions of the Agreement and that such person is authorized to execute any document and to take any action on behalf of Merchant which may be required by Allegiance Merchant Services, now or in the future. Further, Merchant represents and warrants that signing and/or performing in accordance with the Agreement will not violate any Law, or conflict with any other agreement to which Merchant is subject.

c. No Litigation. There is no action, suit, or proceeding pending, or to Merchant’s knowledge, threatened which if decided adversely would impair Merchant’s ability to carry on Merchant’s business substantially as now conducted or which would adversely affect Merchant’s financial condition or operations. Merchant has never (i) been placed on the MasterCard MATCHTM system (formerly known as the Combined Terminated Merchant File), (ii) been named to the Consortium Merchant Negative File maintained by Discover, or (iii) been placed on or named to any other negative or terminated merchant file of any other Payment Network, or, if Merchant has, Merchant has disclosed that fact to Allegiance Merchant Services in writing.

d. Transactions. All Transactions are bona fide. No Transaction involves the use of a Payment Device for any purpose other than the purchase of goods or services from Merchant or a return or adjustment related to such purchase. Merchant will not submit unlawful or illegal Transactions. Merchant has all power and authority to provide all Customer information, Cardholder Data and Transaction information that Merchant provides to Allegiance Merchant Services and Member. No Transaction involves a Customer obtaining cash from Merchant unless allowed by the Payment Network Regulations and agreed to in writing with Allegiance Merchant Services.

e. Compliance with Laws and Regulations. Merchant will comply with all Laws and Payment Network Regulations.

f. Business Use. Merchant is obtaining and using the Processing Services from Allegiance Merchant Services for business purposes only and to facilitate lawful business Transactions between Merchant and Merchant’s Customers. Merchant will not submit Transactions for processing to Allegiance Merchant Services or Member for any businesses, materially different products, or methods of selling other than those set forth in the Merchant Application without the prior written consent of Allegiance Merchant Services. Merchant also acknowledges that the DDA into which debits and credits are made is being used for lawful business purposes only.

g. Responsibility for Actions. Merchant is responsible for any violations of the Agreement that result from the actions of or failure to act by Merchant’s officers, directors, employees, agents, Value Added Servicers, business invitees, and those of any other Person who, with or without Merchant’s consent or cooperation, obtains access to information related to Transactions from Merchant or access to systems under Merchant’s control.

10. AUDIT AND INFORMATION.

a. Audit. Merchant authorizes Allegiance Merchant Services and Member to perform an audit of its business to confirm compliance with the Agreement. Merchant will obtain and submit a copy of an audit from a third party acceptable to Allegiance Merchant Services of the financial, physical security, information security, and operational facets of Merchant’s business at its expense when requested by Allegiance Merchant Services or Member. Further, Merchant acknowledges and agrees that the Payment Networks have the right to audit Merchant’s business to confirm compliance with the Payment Network Regulations.

b. Information.

i. Authorizations. Merchant authorizes Allegiance Merchant Services and Member to make, from time to time, any business and personal credit or other inquiries they consider necessary to review the Merchant Application or continue to provide services under the Agreement. Merchant also authorizes any person or credit reporting agency to compile information to answer those credit inquiries and to furnish that information to Allegiance Merchant Services.

ii. Financial Information. Upon the request of either Allegiance Merchant Services or Member, Merchant will provide Allegiance Merchant Services and Member audited financial statements prepared by an independent certified public accountant selected by Merchant. Merchant further agrees to provide to Allegiance Merchant Services and Member such other information regarding Merchant’s financial condition as Allegiance Merchant Services and/or Member may request from time to time. Within one- hundred twenty (120) days after the end of each fiscal year, Merchant will furnish Allegiance Merchant Services or Member, as requested, a financial statement of profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year.

iii. Merchant Information. Merchant agrees that any Merchant financial information, Transaction Data, and other information regarding Merchant, its principles, affiliates, or agents that Merchant or Merchant principle provides to Allegiance Merchant Services or Member on the Merchant Application or otherwise obtained by Allegiance Merchant Services or Member in connection with the Agreement may be: (i) used by Allegiance Merchant Services, Member, and their respective service providers, affiliates, agents, and referral partners, (a) in order to provide the Processing Services and related functions to Merchant and to respond to any further application for services, or (b) for administrative purposes and to maintain Merchant’s account pursuant to this Agreement; (ii) disclosed and shared for reporting purposes to credit rating agencies, under the Payment Network Regulations, to Issuers and to the financial institution where the DDA is maintained; (iii) utilized to enhance or improve Allegiance Merchant Services’s products or services, generally; (iv) used or disclosed in the course of any actual or potential sale, reorganization or other change to Allegiance Merchant Services’s or Member’s business; (v) collected, used and disclosed as required or permitted by Law (e.g., for tax reporting or in response to a subpoena); and (vi) retained for such periods of time as required by Allegiance Merchant Services and Member to perform their obligations and exercise their rights under the Agreement. Allegiance Merchant Services may prepare, use, and/or share with third parties, aggregated, non-personally identifiable information derived from Transaction Data of all of Allegiance Merchant Services’s customers or specific segments of Allegiance Merchant Services’s Customers.

c. Customer Identification. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. Accordingly, Merchant must provide certain information and identifying documents to allow Allegiance Merchant Services and Member to identify Merchant.

11. FRAUD MONITORING. Merchant is solely responsible for monitoring its Transactions and the actions of its officers, directors, employees, agents, business invitees, third party vendors, including
Value Added Servicers, and those of any other Person who, with or without Merchant’s consent or cooperation, obtains access to Merchant’s Transactions, for fraudulent or other suspicious activity. Allegiance Merchant Services and Member are under no duty to monitor Merchant’s transactions for fraudulent or other suspicious activity.

12. BUSINESS CONTINUITY. Merchant is solely responsible for developing and maintaining a disaster recovery plan. Merchant should test the operation of such plan, or parts thereof, on a periodic basis to ensure its effectiveness in providing disaster recovery capability to Merchant. Merchant is solely responsible for all Transactions and Transaction Receipts until such time as the Transaction Receipts have been received and validated by Allegiance Merchant Services. Merchant will maintain sufficient “backup” information and data (e.g., Transaction Receipts or detailed reporting) with respect to Transactions in order to reconstruct any information or data loss due to any system malfunction. Neither Allegiance Merchant Services nor Member has a duty to recreate lost Transactions.

13. PERSONAL GUARANTY. As a primary inducement to Allegiance Merchant Services and Member to enter into the Agreement and in consideration of the services and accommodations of any kind given or continued at any time and from time to time by Allegiance Merchant Services or Member to or for the benefit of Merchant, the designated Guarantor(s), jointly and severally, unconditionally and irrevocably, guarantee the continuing full and faithful performance by Merchant of each of its duties and obligations to Allegiance Merchant Services and Member pursuant to the Agreement, as the same may be amended by either of them from time to time, with or without notice. No act or thing, except full payment and discharge of all of Merchant’s duties and obligations to Allegiance Merchant Services and Member, which but for this provision could act as a release or impairment of the liability of the Guarantor(s), shall in any way release, impair, or affect the liability of the Guarantor(s). The Guarantor(s) waives any and all defenses of Merchant pertaining to Merchant’s duties and obligations to Allegiance Merchant Services and Member, any evidence thereof, and any security therefore, except the defense of discharge by payment. Guarantor(s) understands further that Allegiance Merchant Services and/or Member may proceed directly against Guarantor(s) without first exhausting their respective remedies against Merchant or any other person or entity responsible therefore or any security held by Allegiance Merchant Services, Member, or Merchant. The Guarantor(s) waives: (i) notice of acceptance of this Personal Guaranty and of the creation and existence of Merchant’s duties and obligations to Allegiance Merchant Services and Member; (ii) presentment, demand for payment, notice of dishonor, notice of non-payment, and protest of any instrument evidencing Merchant’s duties and obligations; (iii) all other demands and notices to the Guarantor(s) or any other person and all other actions to establish the liability of the Guarantor(s); and (iv) the right to trial by jury in action in connection with this Personal Guaranty. This Personal Guaranty will not be discharged or affected by the death of the Guarantor(s), will bind all heirs, administrators, representatives, and assigns, and may be enforced by or for the benefit of any successors in interest to Allegiance Merchant Services or Member. Guarantor(s) understands that the inducement to Allegiance Merchant Services and Member to enter into the Agreement and give or continue services and accommodations of any kind to or for the benefit of Merchant, is consideration for the Personal Guaranty and that each Personal Guaranty remains in full force and effect even if the Guarantor(s) receives no additional benefit from the Personal Guaranty.

14. THIRD PARTIES.

a. Products or Services. Merchant may desire to use a Value Added Servicer to assist Merchant with its Transactions. Merchant shall not utilize any such third parties unless Merchant has disclosed such use to Allegiance Merchant Services previously in writing, and unless such Value Added Servicer is fully compliant with all Laws and Payment Network Regulations. Any Value Added Servicer used by Merchant must be registered with the Payment Networks prior to the performance of any contracted services on behalf of Merchant. Further, as between the parties to the Agreement, Merchant will be bound by the acts and omissions of any Value Added Servicer and Merchant will be responsible for compliance by such Value Added Servicer with all Laws and Payment Network Regulations. Merchant will indemnify and hold harmless Allegiance Merchant Services and Member from and against any loss, cost, or expense incurred in connection with or by reason of Merchant’s use of any third parties, including Value Added Servicers. Merchant’s use of any Value Added Servicer is at Merchant’s risk. Neither Allegiance Merchant Services nor Member is responsible for any Value Added Servicer or for the products or services offered by such Value Added Servicer, nor are they responsible for any Transaction until Allegiance Merchant Services receives data for the Transaction in the format required by Allegiance Merchant Services. A Value Added Servicer’s access to or ability to integrate with the products, services, and systems of Allegiance Merchant Services may terminate at any time and Allegiance Merchant Services shall have no obligation to advise Merchant of such termination.

b. Use of POS Devices Provided by Others. In addition to the foregoing, if Merchant uses a Value Added Servicer for the purposes of data capture and/or authorization, Merchant agrees:
(i) that the third party providing such services will be Merchant’s agent in the delivery of Transactions to Allegiance Merchant Services and Member via a data processing system or network compatible with Allegiance Merchant Services’s; and (ii) to assume full responsibility and liability for any failure of that third party to comply with applicable Laws and the Payment Network Regulations or the Agreement. Neither Member nor Allegiance Merchant Services will be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third party agent or by a malfunction in a third party POS Device. Neither Allegiance Merchant Services nor Member is responsible for any Transaction until Allegiance Merchant Services receives data for the Transaction in the format required by Allegiance Merchant Services.

c. Liability for Direct Agreement with Third Party. Allegiance Merchant Services and Member have no responsibility for, and shall have no liability to Merchant in connection with, any hardware, software or services Merchant receives subject to a direct agreement (including any sale, warranty or end- user license agreement) between Merchant and a third party, including any Value Added Servicer, even if Allegiance Merchant Services collects fees or other amounts from Merchant with respect to such hardware, software or services.

15. TERM AND TERMINATION.

a. Term. Unless terminated as set forth below, the Agreement will remain in effect for a period of three (3) years (“Initial Term”) following the date of acceptance of the Merchant Application by Allegiance Merchant Services and Member, which date shall be the date upon which the Agreement becomes effective. Thereafter, the Agreement will renew for successive two (2) year terms (“Renewal Term”) unless terminated as set forth below. If Merchant processes Transactions beyond the Initial Term or Renewal Term, then the terms of the Agreement shall govern such Transaction processing.

b. Termination.

i. Merchant.

aa. The Agreement may be terminated by Merchant effective at the end of the Initial Term or any Renewal Term by providing written notice of an intent not to renew to Allegiance Merchant Services at least thirty (30) days prior to the expiration of the then current term.
bb. The Agreement may be terminated by Merchant in the event of a material breach of the terms of the Agreement by Member or Allegiance Merchant Services, provided Merchant gives Member and Allegiance Merchant Services written notice of any alleged breach and such breach remains uncured for a period of thirty (30) days following receipt of written notice by the party Merchant claims to be in breach of the Agreement.

ii. Allegiance Merchant Services or Member.

aa. The Agreement may be terminated by Allegiance Merchant Services or Member at any time with or without cause during the Initial Term or any Renewal Term.

bb. Allegiance Merchant Services’s and Member’s rights of termination under the Agreement are cumulative. A specific right of termination in this Section shall not limit any other right of Allegiance Merchant Services or Member to terminate the Agreement expressed elsewhere.

iii. Notice of Termination. Notice of termination by Merchant, Allegiance Merchant Services, or Member may be given orally or in writing, but if given orally, must be confirmed in writing as soon as practical. Merchant’s termination request shall be completed on a form available from Allegiance Merchant Services, but at a minimum, must include the name of the Merchant and Merchant Identification Number, and must be signed by the principal owner(s) of Merchant. Termination shall be effective on the date specified by the oral or written notice; provided, however Merchant agrees that closing Merchant’s account with Allegiance Merchant Services may take up to thirty (30) days following Allegiance Merchant Services’s receipt of written notice of termination. In those limited instances where Merchant’s account is reinstated by Allegiance Merchant Services following termination by either Merchant or Allegiance Merchant Services in the Initial or any Renewal Term, all of Merchant’s obligations under the Agreement are likewise reinstated and will renew for successive two (2) year Renewal Terms effective on the date of reinstatement.

c. Action Upon Termination.

i. Accounts. All Merchant’s obligations regarding Transactions processed prior to termination will survive termination. Funds related to Transactions processed prior to termination may be placed in a Reserve Account until Merchant pays all amounts Merchant owes Allegiance Merchant Services or Member or amounts for which Merchant is liable under the Agreement. Merchant must maintain enough funds in the DDA following termination to cover all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks and other amounts due under the Agreement for a reasonable time, but in any event, not less than one-hundred-eighty (180) days from termination. If a Reserve Account is established by Allegiance Merchant Services, then any balance remaining after Chargeback rights have expired and all other amounts owed by Merchant has been paid will be disbursed to Merchant.

ii. Leased Equipment. If Merchant’s equipment is leased, Merchant is obligated to honor the terms and conditions of Section (A)(20) below. If Merchant’s Leased Equipment is owned by Allegiance Merchant Services, Merchant must return all equipment owned by Allegiance Merchant Services within ten (10) business days after termination of the Agreement and immediately pay Allegiance Merchant Services any amounts Merchant owes for such Leased Equipment.

iii. Return to Allegiance Merchant Services. All Confidential Information, promotional materials, advertising displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms supplied to Merchant and not purchased by Merchant or consumed in use will remain the property of Allegiance Merchant Services and must be returned to Allegiance Merchant Services or destroyed within ten (10) business days after termination of the Agreement. Merchant will be fully liable for any and all loss, cost, and expense suffered or incurred by Allegiance Merchant Services arising out of any failure to return or destroy such materials following termination.

16. COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS; MATCH™ AND CONSORTIUM MERCHANT NEGATIVE FILE.

a. Compliance with Laws and Payment Network Regulations. Merchant agrees to comply with the Payment Network Regulations, including all requirements applicable to obtaining authorization for ACH debits from a consumer account, and with any policies and procedures provided by Member or Allegiance Merchant Services. The Payment Network Regulations are incorporated into the Agreement by reference as if they were fully set forth in the Agreement. Merchant further agrees to comply with all Laws, including without limitation, Laws related to: (i) Payment Devices; (ii) electronic funds transfers; (iii) confidential treatment of information; and (iv) the Fair and Accurate Credit Transactions Act of 2003 (FACTA), including its requirements relating to the content of Transaction Receipts provided to Customers. Merchant will assist Member and Allegiance Merchant Services in complying in a complete and timely manner with all Laws and Payment Network Regulations now or hereafter applicable to any Transaction or the Agreement. Merchant will execute and deliver to Member and Allegiance Merchant Services all documents they may from time to time reasonably deem necessary to verify Merchant’s compliance with this provision.

b. Privacy Laws in the United States (if applicable). In addition to Section (A)(17)(b), Merchant must take all commercially reasonable steps to protect the confidentiality of Customer and Transaction information and shall establish and maintain physical, technical and administrative safeguards to prevent unauthorized access by third parties to such Customer and Transaction information and in a manner that complies with applicable Laws, including without limitation the federal Health Insurance Portability and Accountability Act, the federal Gramm-Leach- Bliley Act, FACTA or other applicable privacy laws.

c. Privacy Laws in Canada (if applicable). Merchant represents, covenants and agrees that it is in compliance with all applicable privacy laws, including without limitation the Personal Information Protection and Electronic Documents Act (Canada), and that any personal information of a Customer that may be communicated or disclosed to Allegiance Merchant Services under or in connection with the Agreement or any services to be provided by Allegiance Merchant Services to Merchant has been obtained in compliance with such laws and that Allegiance Merchant Services will not be in breach of any such laws by receiving and using such information in connection with performing its obligations under or in connection with the Agreement or any services to be provided by Allegiance Merchant Services to Merchant.

d. MATCH™ and Consortium Merchant Negative File. Merchant acknowledges that Member and/or Allegiance Merchant Services is required to report Merchant’s business name and the name of Merchant’s principals to the MATCH™ listing maintained by MasterCard and accessed and updated by Visa and American Express, to the Consortium Merchant Negative File maintained by Discover, if applicable, or to any other negative or terminated merchant file of any other Payment Network, if applicable, pursuant to the requirements of the Payment Network Regulations. Merchant specifically consents to the fulfillment of the obligations related to the listing by Allegiance Merchant Services and Member, the listing itself and Merchant waives and holds harmless Allegiance Merchant Services and Member from all claims and liabilities Merchant may have as a result of such reporting.

e. Security Program Compliance. Merchant must comply with the requirements of the Payment Card Industry Data Security Standard (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 Network, and the security programs of any other Payment Network regarding which Merchant accepts a Payment Device, as applicable, and any modifications to, or replacements of such programs that may occur from time to time (collectively, “Security Programs”). Merchant also shall ensure that all Value Added Servicers and third parties from whom Merchant procures third party POS Devices comply with the requirements of the Security Programs. Upon request, Allegiance Merchant Services will provide Merchant with the respective website links to obtain the current requirements of the Visa, MasterCard, and Discover Network Security Programs. Merchant is responsible for Merchant’s own actions or inactions, those of Merchant’s officers, directors, shareholders, employees and agents, including any Value Added Servicer (collectively, “Merchant’s Agents”). Merchant shall indemnify and hold Allegiance Merchant Services and Member harmless from any liability, loss, cost, or expense resulting from the violation of any of the Security Program requirements by any of Merchant’s Agents. Should Merchant participate in a program with any other Credit Card Association or Issuer, or accept a Payment Device of any other Payment Network that has a security program in place, Merchant must comply therewith and ensure that Merchant’s officers, directors, shareholders, employees, and agents, including Value Added Servicers or third party POS Devices, also comply with the program requirements of such Payment Network.

f. Data Compromise.

i. Notice and Investigation. Merchant acknowledges and agrees that Cardholder Data and bank account information obtained by Merchant in connection with any Transaction is the property of the financial institution that issued the Payment Device or holds the Customer’s account. Merchant must notify Allegiance Merchant Services and Member within twenty-four (24) hours (and if notice is given orally, it must be confirmed in writing within the same twenty-four hour period), if Merchant knows or suspects that Cardholder Data, Customer information, or Transaction information has been accessed or used without authorization from Merchant, Merchant’s Agents or systems within Merchant’s or its agent’s control (a “Data Incident”). The notice must include: (a) a detailed written statement about the Data Incident including the contributing circumstances; (b) the form, number and range of compromised account information; (c) specific account numbers compromised; and (d) details about the ensuing investigation and Merchant’s security personnel who may be contacted in connection with the Data Incident. Merchant must fully cooperate with the Payment Networks, Allegiance Merchant Services and Member in the forensic investigation of the Data Incident. Within seventy-two (72) hours of becoming aware of the Data Incident, Merchant must engage the services of a data security firm acceptable to the Payment Networks and/or to Allegiance Merchant Services and Member to assess the vulnerability of the compromised data and related systems. Merchant must provide weekly written status reports to Allegiance Merchant Services and Member until the forensic audit is complete. Merchant must promptly furnish updated lists of potential or known compromised account numbers and other documentation or information that the Payment Networks and/or Allegiance Merchant Services and Member may request. In addition, Merchant must provide all audit reports to Allegiance Merchant Services and Member, and such audits must be completed to the satisfaction of the Payment Networks and/or of Allegiance Merchant Services and Member. If Merchant fails to supply the forensic audits or other information required by the Payment Networks and/or by Allegiance Merchant Services and Member, Merchant will allow Allegiance Merchant Services or Member to perform or have performed such audits at Merchant’s expense.

ii. Preservation of Records. In the event of a Data Incident, Merchant must take immediate steps to preserve all business records, logs and electronic evidence relating to the Data Incident. Merchant shall cooperate with Allegiance Merchant Services and Member to rectify, correct and resolve any issues that may result from the Data Incident, including providing Allegiance Merchant Services and Member with (and obtaining any necessary waivers for) all relevant information to verify Merchant’s ability to prevent future data incidents in a manner consistent with the Agreement.

iii. Liability for Data Incident. Without waiving any of Allegiance Merchant Services’s and Member’s rights and remedies, Merchant is liable for all fraudulent transactions related to any Data Incident and all costs Allegiance Merchant Services or Member incur as a result of such Data Incident, including any fees, fines, penalties, or assessments by the Payment Networks, claims from third parties, all costs related to the notification of Cardholders or Customers and cancellation, re-issuance of Payment Devices (including underlying accounts), forensic investigation, and PCI DSS review for a report of compliance.

g. Office of Foreign Assets Control Compliance. Allegiance Merchant Services and Member are entities governed by the Laws of the United States of America and as such, neither Allegiance Merchant Services nor Member may provide any products or services to Merchant or its Customers that contravene the Laws of the United States of America, including, without limitation, the Laws promulgated by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or any successor thereto.

17. USE OF TRADEMARKS; CONFIDENTIALITY; PASSWORDS.

a. Use of Trademarks. Merchant will prominently display the promotional materials provided by Allegiance Merchant Services in Merchant’s place of business as may be required or requested by the Payment Networks. Merchant’s use of Visa, MasterCard, and Discover Network marks, as well as marks of other Payment Networks, will fully comply with the Payment Network Regulations.

Merchant’s right to use all such marks will terminate upon termination of the Agreement or upon notice by a Payment Network to discontinue such use. Merchant’s use of promotional materials, provided by Visa, MasterCard, Discover Network, and/or other Payment Networks will not indicate, directly or indirectly, that Visa, MasterCard, Discover Network, or such other Payment Networks endorse any goods or services other than their own and Merchant may not refer to Visa, MasterCard, Discover Network, or any other Payment Networks in stating eligibility for Merchant’s products or services.

b. Confidentiality.

i. Customer and Transaction Information. Merchant shall, at all times protect the confidentiality of Customer and Transaction information in accordance with all applicable Laws and Payment Network Regulations. Merchant will not disclose Customer or Transaction information to any third party, except to an agent of Merchant approved by Allegiance Merchant Services that is assisting in completing a Transaction, or as required by Laws or Payment Network Regulations. Merchant must maintain all systems and media containing Customer and Transaction information in a secure manner to prevent access by or disclosure to anyone other than Merchant’s authorized personnel. Merchant must maintain Customer and Transaction information for such time periods as may be required by Laws and the Payment Network Regulations and thereafter destroy in a manner that will render the data unreadable all such media that Merchant no longer deems necessary or appropriate to maintain. Further, Merchant must take all steps reasonably necessary to ensure that Customer and Transaction information is not disclosed or otherwise misused. Merchant may not retain or store magnetic stripe or CVV2/CVC2/CID data after authorization for any purpose, including record keeping or additional authorization processing. After authorization, Merchant may only retain the Customer account number, name, and Card expiration date if Merchant has a reasonable business purpose to retain such information and is otherwise in compliance with the Agreement. Merchant may not print on any Transaction Receipt or other document that is given to the Customer, retained by Merchant, or transferred to a third party, the entire contents of the magnetic stripe or the CVV2/CVC2/CID data elements. In accordance with Section (A)(16)(e), Merchant shall immediately notify Allegiance Merchant Services if Merchant knows or suspects that any Customer or Transaction information has been accessed by unauthorized persons or has been used for any purpose not permitted herein whether such access or use occurred at: (i) Merchant; (ii) a Value Added Servicer; (iii) Allegiance Merchant Services or Member; or (iv) elsewhere.

ii. Bankruptcy. In the event of failure or other suspension of Merchant’s business operations, including bankruptcy or insolvency, Merchant must not sell, transfer, or disclose any materials that contain Customer or Transaction information to third parties, and Merchant must:

aa. Return this information to Allegiance Merchant Services; or
bb. Provide acceptable proof of destruction of this information to the Allegiance Merchant Services.

iii. Allegiance Merchant Services or Member Confidential Information. Merchant agrees to protect Allegiance Merchant Services’s and Member’s Confidential Information from unauthorized disclosure, publication, or dissemination with the same standard of care and discretion it employs with similar information of its own, but in no event less than reasonable care, and shall not use, reproduce, distribute, disclose, or otherwise disseminate Allegiance Merchant Services’s or Member’s Confidential Information, except in connection with the performance of its obligations under this Agreement. The obligations of non-disclosure provided hereunder shall continue during the term of the Agreement and (i) with respect to Confidential Information that does not constitute a trade secret, for a period of three (3) years thereafter and (ii) with respect to Confidential Information that rises to the level of a trade secret under applicable law, for such period of time thereafter as the information shall retain its status as a trade secret under applicable law, and no less than three (3) years thereafter.

c. Passwords. If Merchant receives a password from Allegiance Merchant Services to access any of Allegiance Merchant Services’s databases or services Merchant will: (i) keep the password confidential; (ii) not allow any other entity or person to use the password or gain access to Allegiance Merchant Services’s databases or services; (iii) be liable for all action taken by any user of the password; and (iv) promptly notify Allegiance Merchant Services if Merchant believes the Allegiance Merchant Services’s databases or services or Merchant’s information has been compromised by use of the password. If Merchant receives passwords from a third party, Merchant must protect such passwords in the manner required by such third party and indemnify, defend, and hold Allegiance Merchant Services and Member harmless from any losses, costs, or expenses that arise from Merchant’s use or misuse of such third party passwords.

d. Proprietary Interest. Merchant has no interest whatsoever, including, without limitation, copyright interests, franchise interests, license interests, patent rights, property rights, or other interest in any services, software, or hardware provided by Allegiance Merchant Services. Nothing in the Agreement shall be construed as granting Merchant any patent rights or patent license in any patent which Allegiance Merchant Services may obtain in respect to Allegiance Merchant Services’s services, software, or equipment. Merchant will make no attempt to duplicate or otherwise ascertain the components, circuit diagrams, logic diagrams, flow charts, source and object code, schematics or operation of, or otherwise attempt to reverse engineer any of Allegiance Merchant Services’s services, equipment, or software.

18. MISCELLANEOUS PROVISIONS.

a. Entire Agreement. The Agreement (including all attachments, exhibits, addenda and other documents incorporated by reference into the Agreement, attachments, exhibits or addenda), Payment Network Regulations, and any amendment or supplement to either, constitutes the entire agreement between the parties, and all prior or other representations, written or oral, are merged in and superseded by the Agreement; provided, however the Agreement shall not supersede any Personal Guaranty signed by a Guarantor, which Personal Guaranty shall be deemed to remain an agreement separate and distinct from the Agreement. In the event of a conflict between the documents comprising the Agreement, excluding any Personal Guaranty, the following order of priority will apply: (i) any amendment to the Agreement; (ii) the TOS; (iii) the Payment Network Regulations; (iv) the Merchant Application; (v) any Merchant Agreement or Merchant Processing Agreement; (vi) the Merchant Operating Guide; and (vii) any other guides or manuals provided to Merchant from time to time.

b. Governing Law in the United States (if applicable). The Agreement will be governed by and construed in accordance with the Laws of the State of Georgia with respect to Transactions occurring in the United States, except that Section (A)(18)(g) shall be governed by the Federal Arbitration Act. The parties agree that all performances and Transactions under the Agreement will be deemed to have occurred in the State of Georgia and that Merchant’s entry into and performance of the Agreement will be deemed to be the transaction of business within the State of Georgia. Any challenge to the enforceability of the agreement to arbitrate contained in Section (A)(18)(g) of the Agreement, on any ground, shall be brought in either the Superior Court of Fulton County, Georgia or in the United States District Court for the Northern District of Georgia, and in no other court, and each of the parties to the Agreement consents to the exercise of personal jurisdiction by these courts and waives all objections based on a lack of personal jurisdiction, venue or the inconvenience of the forum. Merchant, hereby waives any and all right to trial by jury in any action or proceeding relating to the Agreement. Merchant represents that this waiver is knowingly, willingly and voluntarily given.

c. Jurisdiction and Venue; Governing Law in Canada (if applicable). All matters arising out of or related to the Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario with respect to Transactions occurring in Canada, except for the hypothec created pursuant to Section (A)(6)(a)(i) (the “Québec Hypothec”) which will be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable in the Province of Québec. The parties agree that all performances and Transactions under the Agreement will be deemed to have occurred in the Province of Ontario and that Merchant’s 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 (other than collection actions by Allegiance Merchant Services or Member relating to amounts owed by Merchant under the Agreement) must be brought, held, or otherwise occur exclusively in Toronto, Canada, and the parties hereby attorn to the exclusive jurisdiction of the courts of Ontario (or of the courts of Québec with respect to the Québec Hypothec). Merchant, Member and Allegiance Merchant Services hereby jointly and severally waive any and all right to trial by jury in any action or proceeding relating to the Agreement. Merchant, Member and Allegiance Merchant Services each represents to the other that this waiver is knowingly, willingly and voluntarily given.

d. Exclusivity. During the Initial Term and any Renewal Term of the Agreement, Merchant will not enter into an agreement with any other entity that provides processing services similar to those provided by Allegiance Merchant Services and Member as contemplated by the Agreement without Allegiance Merchant Services’s written consent.

e. Construction. Any alteration or strikeover in the text of the Agreement will have no binding effect and will not be deemed to amend the Agreement. The headings used in the TOS are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

f. Assignability. The Agreement may be assigned by Member or Allegiance Merchant Services, but may not be assigned by Merchant, directly or by operation of law, without the prior written consent of Allegiance Merchant Services. If Merchant, nevertheless, assigns the Agreement without Allegiance Merchant Services’s consent, the Agreement will be binding on the assignee as well as Merchant. If Merchant sells its business and the new owners incur Chargebacks, the original owner(s) and all original Guarantors will be held personally liable for all Chargebacks and any other liabilities of the new owners.

g. Arbitration. All claims or controversies, or other matters in question, between the parties arising out of or related to the Agreement or the relationship between the parties that are not otherwise settled by agreement of parties will be submitted to and decided by arbitration held in Atlanta, Georgia in accordance with the rules of the American Arbitration Association as modified by the Agreement. The arbitration proceeding shall be conducted before one (1) neutral arbitrator, who shall be a member of the bar of the State of Georgia, actively engaged in the practice of law for at least ten (10) years. The arbitrator will have the authority to award any remedy or relief that a court in Georgia could order or grant, including, without limitation, specific performance, issuance of an injunction or imposition of sanctions for abuse or frustration of the arbitration process. The arbitrator shall have no authority to decide claims on a class action basis. An arbitration can only decide our or Merchant’s claim and may not consolidate or join the claims of other persons who may have similar claims. Merchant may not 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. The parties agree that anything communicated, exchanged, said, done, or occurring in the course of the arbitration, including any private caucus between the arbitrator and any party before or after any joint arbitration session, will be kept confidential. The parties agree that the underlying agreement between the parties involves interstate commerce and that, notwithstanding the choice of law provision in Section (A)(18)(b), any arbitration shall be governed by the Federal Arbitration Act.

h. Notices. Any written notice to Merchant under the Agreement will be deemed received upon the earlier of: (i) actual receipt; or (ii) five (5) business days after being deposited in the United States mail, or with a nationally recognized overnight carrier, and addressed to the last address shown on the records of Allegiance Merchant Services. Any written notice to Allegiance Merchant Services, shall be sent by U.S. mail or a nationally recognized overnight carrier to: 7300 Chapman Highway, Knoxville, TN 37920, and shall be deemed received only upon actual receipt.

i. Bankruptcy in the United States (if applicable). Merchant will immediately notify Allegiance Merchant Services of any Bankruptcy Proceeding, receivership, insolvency, or similar action or proceeding initiated by or against Merchant or any of its principals. Merchant will include Allegiance Merchant Services on the list and matrix of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the time of filing. Failure to do so will be cause for immediate termination of the Agreement and shall allow the pursuit of any other action available to Allegiance Merchant Services under applicable Payment Network Regulations or Laws. Merchant acknowledges that the Agreement constitutes a contract to extend credit or other financial accommodations to, or for the benefit of Merchant, and, as such, cannot be assumed or assigned in the event of Merchant’s bankruptcy. Such financial accommodations include, but may not be limited to, the incurrence by Allegiance Merchant Services from time to time of credit risk associated with funds transfers and Allegiance Merchant Services’s compliance with Payment Network Regulations relating to Chargebacks. Merchant further acknowledge that such financial accommodations constitute an integral part of the Agreement.

j. Bankruptcy in Canada (if applicable). Merchant will immediately notify Allegiance Merchant Services of any Bankruptcy Proceeding, receivership, insolvency, or similar action or proceeding initiated by or against Merchant or any of its principals. Merchant will include Allegiance Merchant Services on the list and matrix of creditors as filed with any bankruptcy, commercial or civil court, whether or not a claim may exist at the time of filing. Failure to do so will be cause for immediate termination of the Agreement and shall allow the pursuit of any other action available to Allegiance Merchant Services under applicable Payment Network Regulations or Laws. Merchant agrees that the Agreement is a contract for the advance of credit to Merchant within the meaning of Section 11.01(b) of the Companies’ Creditors Arrangement Act (Canada) and within the meaning of Section 65.1(4)(b) of the Bankruptcy and Insolvency Act (Canada) and cannot be assigned by Merchant in the event of a Bankruptcy Proceeding relating to Merchant. Merchant hereby acknowledges but that for the agreement in the immediately preceding sentence, Member and Allegiance Merchant Services would not have entered into the Agreement.

k. Attorneys’ Fees. Merchant will be liable for and will indemnify and reimburse Member and Allegiance Merchant Services for all reasonable attorneys’ fees and other costs and expenses paid or incurred by Member or Allegiance Merchant Services: (i) in the enforcement of the Agreement; (ii) in collecting any amounts due from Merchant to Member or Allegiance Merchant Services; (iii) resulting from any breach by Merchant of the Agreement; or (iv) in defending against any claim, proceeding, or cause of action brought against Allegiance Merchant Services or Member arising out of Merchant’s obligations under this Agreement.

l. Customer Contact. Merchant authorizes Member and Allegiance Merchant Services to contact its Customers or their Issuer if Member or Allegiance Merchant Services determines that such contact is necessary to obtain information about any Transaction between Merchant and a Customer.

m. Telephone Recording. Merchant authorizes Allegiance Merchant Services to monitor and record telephone conversations at any time without further notice to the parties to such conversations. The decision to record any conversation shall be solely in Allegiance Merchant Services’s discretion.

n. Information Sharing. Merchant understands and agrees that Allegiance Merchant Services may disclose any information gathered by Allegiance Merchant Services to (i) Allegiance Merchant Services’s “affiliates” (i.e., companies related to Allegiance Merchant Services by common control or ownership) that offer financial products or services, including those identified in the Agreement and to Allegiance Merchant Services’s administrative or service units that perform such functions; (ii) to non-affiliated companies to assist Allegiance Merchant Services in providing the products and services Merchant has requested; (iii) to credit rating agencies; and (iv) as required by the Payment Network Regulations or the Laws (e.g., for tax reporting purposes or in response to a subpoena).

o. Communication with Merchant. Merchant agrees that Allegiance Merchant Services and Member may provide Merchant with information about their services including, without limitation, information about new products and/or services by telephone, electronic mail, and/or facsimile.

p. Amendments. Member and Allegiance Merchant Services may propose amendments or additions to the Agreement. Member or Allegiance Merchant Services will inform Merchant of a proposed change in a periodic statement or other notice. Merchant will be deemed to have agreed to the change if Merchant continues to present Transactions to Member and Allegiance Merchant Services after thirty (30) days following the issuance of the notice. Notwithstanding any limitations set forth in the previous sentence, changes to fees authorized by the Agreement will be effective upon notice to Merchant, unless a later effective date is provided. Further, Allegiance Merchant Services is entitled to pass through to Merchant any fee increases imposed upon Allegiance Merchant Services by Visa, MasterCard, Discover Network, any other Payment Network, and any other third party including telecommunications vendors.

q. 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 shall not in any way be affected or impaired thereby if the essential terms and conditions of the Agreement for each party remain valid, legal and enforceable. Neither the failure, the delay by Allegiance Merchant Services or Member to exercise, nor the partial exercise of any right under the Agreement will operate as a waiver or estoppel of such right, nor shall such amend the Agreement. All waivers requested by Merchant must be signed by Allegiance Merchant Services.

r. Independent Contractors. Allegiance Merchant Services, Member, and Merchant will be deemed independent contractors and no one will be considered an agent, joint venturer, or partner of the other, unless and to the extent otherwise specifically provided herein. The Agreement has been entered into solely for the benefit of the parties hereto and is not intended to create an interest in any third party.

s. Survival. All of Merchant’s obligations to Allegiance Merchant Services and Member shall survive termination of the Agreement, including, without limitation, Sections (A)(4)(a)-(d), (A)(5)(a)-(d), (A)(6)(a)-(d), (A)(7)(a)-(c), (A)(8)(a)-(d), (A)(9)(g), (A)(13), (A)(14), (A)(15), (A)(17)(a)-(d), (A)(18)(b), (A)(18)(g), and (A)(18)(k) of the TOS.

t. Counterparts; Facsimile Signatures; Delivery. The Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement. Delivery of the various documents and instruments comprising the Agreement may be accomplished by a facsimile transmission, and such a signed facsimile or copy shall constitute a signed original.

u. Force Majeure. None of the parties hereto shall be considered in default in performance of its obligations to the extent such performance is delayed by force majeure affecting the party’s ability to so perform. Force majeure shall include, but not be limited to, hostilities, restraint of rulers or peoples, revolution, civil commotion or riots, strike, lockout, epidemic, accident, fire, flood, earthquake, windstorm, explosion, lack of or failure of telecommunication facilities, regulation or ordinance, demand or requirement of any government or governmental agency, or any court, tribunal or arbitrator(s), having or claiming to have jurisdiction over the subject matter of the Agreement or over the parties hereto, or any act of God or any act of government or any cause whether of the same or different nature existing now or in the future which is beyond the reasonable control of the parties hereto.

v. Expenses. Except as otherwise specifically provided in the Agreement, each party shall pay its own costs and expenses in connection with the Agreement and the transactions contemplated hereby, including all attorneys’ fees, accounting fees and other expenses.

w. No Third Party Beneficiaries. No provisions of the Agreement shall be construed to confer any rights or benefits on any Person not a party to the Agreement or a permitted assignee or successor of a party to the Agreement, unless such rights or benefits are expressly extended to third parties.

19. PROVISIONS APPLICABLE TO MERCHANT’S ACCEPTANCE OF TRANSACTIONS IN CANADA

a. Pre-Authorized Debits (PADs). Merchant authorizes Member, Allegiance Merchant Services, and their respective vendors and agents to initiate debit and credit entries to the DDA, the Reserve Account, or any other account maintained by Merchant at any institution that is a member of the CPA, all in accordance with the Agreement. Merchant agrees that any withdrawal by Member, Allegiance Merchant Services and their respective vendors and agents in accordance with the Agreement are PADs for business purposes, as defined under Rule H1 of the CPA. Merchant hereby waives the right to receive advance notice from Member, Allegiance Merchant Services and their respective vendors and agents of any and all such debits. This authorization will remain in effect after termination of the Agreement and until all of Merchant’s obligations to Allegiance Merchant Services and Member have been paid in full. If Merchant changes the DDA, this PAD authorization will apply to the new account and Merchant shall provide Allegiance Merchant Services and Member in writing such information regarding the new DDA as they deem necessary. It may take Allegiance Merchant Services up to ten (10) business days after Allegiance Merchant Services’s receipt of a written notice from Merchant to reflect in its system any change to Merchant’s DDA. If Merchant changes the DDA, Merchant agrees that it is responsible for all costs incurred by Member and/or Allegiance Merchant Services in connection with Merchant’s decision to change the DDA. Merchant may revoke the PAD authorization upon thirty (30) days’ prior written notice to Allegiance Merchant Services, but any such revocation shall constitute a material breach of the Agreement. Merchant may obtain a sample cancellation form, as well as further information on Merchant’s right to cancel a PAD authorization by contacting Merchant’s financial institution or by visiting www.cdnpay.ca. Merchant has certain recourse rights if any debit does not comply with the Agreement. For example, Merchant has the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD Agreement. To obtain more information on Merchant’s recourse rights, Merchant may contact its financial institution or visit www.cdnpay.ca.

b. Amendments. This Section applies to Merchants in Canada in lieu of Section (A)(18)(p) above. Member and Allegiance Merchant Services may propose amendments or additions to the Agreement. Member or Allegiance Merchant Services will inform Merchant of a proposed change in a periodic statement or other notice. Merchant will be deemed to have agreed to the change if Merchant continues to present Transactions to Member and Allegiance Merchant Services after thirty (30) days following the issuance of the notice. Notwithstanding the previous sentence, changes to fees authorized by the Agreement will be effective upon notice to Merchant, unless a later effective date is provided; provided, that, with respect to Credit Card and Debit Card Transactions, changes to fees or the introduction of new fees authorized by the Agreement will be effective upon ninety (90) days notice to Merchant, unless a later effective date is provided. Further, Allegiance Merchant Services is entitled to pass through to Merchant any fee increases imposed upon Allegiance Merchant Services by Visa, MasterCard, Discover Network, any other Payment Network, and any other third party including telecommunications vendors; provided, that, with respect to Credit Card and Debit Card Transactions, any such fee increases will be effective upon ninety (90) days notice to Merchant.

c. Termination. In addition to Merchant’s other termination rights in the Agreement, the Agreement may be terminated by Merchant without penalty in the event that Allegiance Merchant Services or Member notifies Merchant of a fee increase or the introduction of a new fee; provided that Merchants may not terminate the Agreement in connection with new fees or fee increases made in accordance with pre-determined fee schedules. Merchant must notify Allegiance Merchant Services and Member of its intent to terminate the Agreement within ninety (90) days of receiving notice of the new fee or fee increases from Allegiance Merchant Services or Member.

d. Personal Guaranty. As a primary inducement to Allegiance Merchant Services and Member to enter into the Agreement and in consideration of the services and accommodations of any kind given or continued at any time and from time to time by Allegiance Merchant Services or Member to or for the benefit of Merchant, the designated Guarantor(s), jointly and severally, and in Quebec solidarily, unconditionally and irrevocably, guarantee the continuing full and faithful payment and performance by Merchant of all duties, debts, liabilities and obligations of Merchant to Allegiance Merchant Services or Member, whether present or future, direct or indirect, absolute or contingent, matured or not, at any time owing or remaining unpaid by Merchant to Allegiance Merchant Services or Member in any currency, and wherever incurred, and all interest, fees, commissions and legal and other costs, charges and expenses owing or remaining unpaid by Merchant to Allegiance Merchant Services or Member in any currency pursuant to the Agreement, as the same may be amended by either of them from time to time, with or without notice (collectively, the “Obligations”). The Guarantor(s) also unconditionally agrees that, if Merchant does not unconditionally and irrevocably pay any Obligations when due and those Obligations are not recoverable from the Guarantor(s) for any reason under the guarantee set forth above, the Guarantor(s) shall indemnify Allegiance Merchant Services and Member immediately on demand against any cost, loss, damage, expense or liability suffered by Allegiance Merchant Services or Member as a result of Merchant’s failure to do so. The liability of the Guarantor(s) hereunder is unlimited. No act or thing, except the indefeasible and full payment and discharge in cash of all of the Obligations, which but for this provision could act as a release or impairment of the liability of the Guarantor(s), shall in any way release, impair, or affect the liability of the Guarantor(s). The Guarantor(s) waives any and all defenses of Merchant pertaining to the Obligations, any evidence thereof, and any security therefore, except the defense of discharge of the Obligations by full and indefeasible payment in cash. Guarantor’s(s’) liability to pay or perform the Obligations shall arise immediately after demand has been made in writing on Guarantor(s). Guarantor(s) understands further that Allegiance Merchant Services and/or Member may proceed directly against Guarantor(s) without first exhausting their respective remedies against Merchant or any other person or entity responsible therefore or any security held by Allegiance Merchant Services, Member, or Merchant. The Guarantor(s) waives: (i) notice of acceptance of this Personal Guarantee and of the creation and existence of the Obligations; (ii) presentment, demand for payment, notice of dishonor, notice of non-payment, and protest of any instrument evidencing the Obligations; (iii) all other demands and notices to the Guarantor(s) or any other person and all other actions to establish the liability of the Guarantor(s); (iv) without limiting in any way any other waivers of defenses set out herein, any and all defenses available at equity or common law to the fullest extent permitted under applicable law; and (v) the right to trial by jury in action in connection with this Personal Guarantee. Guarantor(s) agrees that this is a continuing guarantee and that Guarantor’s(s’) liability under this Personal Guarantee will not be discharged, affected or released by: (a) any variation, renewal, extension or replacement of the Agreement, other agreements or any security (including any other guarantees) held by Allegiance Merchant Services or Member; (b) any extension of time or other indulgence given to Merchant or others under the Agreement or any security; (c) any delay or refusal by Allegiance Merchant Services to require or enforce payment of the Obligations or any security; (d) the taking, non-perfecting, or giving up of any security or by any dealings with Merchant or others respecting the Obligations, the Agreement or any security; (e) the death or legal incapacity of the Guarantor(s) or the dissolution, amalgamation, other fundamental change, death or legal incapacity, as the case may be, of Merchant; or (f) any event which results in Merchant not being under a legal obligation to make any payment or perform any obligation under the Agreement. Guarantor(s) renounces the benefit of discussion and division. This Personal Guarantee will bind all heirs, administrators, estate trustees, representatives, permitted successors, and assigns of Guarantor(s), and may be enforced by or for the benefit of any successors in interest to Allegiance Merchant Services or Member. Guarantor(s) understands that the inducement to Allegiance Merchant Services and Member to enter into the Agreement and give or continue services and accommodations of any kind to or for the benefit of Merchant, is consideration for the Personal Guarantee and that each Personal Guarantee remains in full force and effect even if the Guarantor(s) receives no additional benefit from the Personal Guarantee. Guarantor hereby authorizes any credit reporting agency or bureau to furnish Allegiance Merchant Services and Member upon request with a credit bureau report that relates to the Guarantor. To the extent that any limitation period applies to any claim for payment of obligations or remedy for enforcement of obligations under this Personal Guarantee, each Guarantor agrees that: (a) any limitation period is expressly excluded and waived entirely if permitted by applicable law; (b) if a complete exclusion and waiver of any limitation period is not permitted by applicable law, any limitation period is extended to the maximum length permitted by applicable law; (c) any limitation period applying to this Personal Guarantee expressed to be payable on demand shall not begin before an express demand for payment of the relevant obligations is made in writing by Allegiance Merchant Services or Member to the Guarantor; (d) any applicable limitation period shall begin afresh upon any payment or other acknowledgment by the Guarantor of its obligations; and (e) each of this Personal Guarantee and the Agreement is a “business agreement” as defined in the Limitations Act, 2002 (Ontario) if that Act applies to it. This Personal Guarantee has been negotiated by the Guarantor or reviewed by the Guarantor with the benefit of independent legal counsel and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Personal Guarantee.

e. Language. The parties hereby 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.

f. Equipment Leasing in Canada. If Lessee has elected to lease any Leased Equipment from Lessor, the terms and conditions set forth in Sections (A)(19)(g) through (w) below apply in lieu of Section (A)(20) below.

g. Non-Cancellable Lease. This lease cannot be cancelled by Lessee during the term hereof. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Leased Equipment on terms and conditions set forth herein. The parties agree that the lease of the Leased Equipment in the lease is, for all purposes, a financial lease under a financial lease agreement (as such terms are used in the Bank Act (Canada) and the regulations thereunder). Lessee acknowledges acceptance and receipt of the Leased Equipment and certify that the Leased Equipment shall be used for business purposes only. Lessee hereby authorizes any credit reporting agency or bureau to furnish to Lessor upon Lessor’s request a credit bureau report that relates to Lessee.

h. No Warranties by Lessor. Lessor has made and makes no representations or warranties of any kind or nature, directly or indirectly, expressed or implied, as to any matter whatsoever, including the suitability of the Leased Equipment, its durability, its condition, and/or its quality. Lessee leases the Leased Equipment “as-is.” Lessor disclaims any warranty of merchantability or fitness for use or purpose whether arising by operation of law or otherwise. Lessor shall not be liable to Lessee or others for any loss, damage or expense of any kind or nature caused directly or indirectly by any Leased Equipment however arising, or the use or maintenance thereof or the failure of operation thereof, or the repairs, service or adjustment thereto. No representation or warranty as to the Leased Equipment or any other matter by the supplier of the Leased Equipment (the “Vendor”), the manufacturer or others shall be binding on Lessor nor shall the breach of such relieve Lessee of, or in any way affect, any of Lessee’s obligations to Lessor herein. If the Leased Equipment is not satisfactory for any reason, Lessee shall make any claim on account thereof solely against the Vendor and/or manufacturer and Lessee shall nevertheless perform all of Lessee’s obligations under the lease. Lessee will not assert any claim whatsoever against Lessor for any loss whatsoever including without limitation any loss of anticipatory profits or any other indirect, special, or consequential damages. Lessor makes no warranty as to the treatment of the lease for accounting or tax purposes. Neither Vendor nor any agent of Vendor is an agent of Lessor or is authorized to waive or alter any term or condition of the lease.

i. Ordering Leased Equipment; Lessor’s Right to Terminate. Lessee has selected the Leased Equipment and the Vendor and requested that Lessor purchase the Leased Equipment from the Vendor and arrange for delivery to Lessee at Lessee’s expense. If within forty-five (45) days from the date Lessor orders the Leased Equipment, it has not been delivered, installed and accepted by Lessee in form satisfactory to Lessor, Lessor may on ten (10) days written notice to Lessee terminate the lease and Lessor’s obligations to Lessee.

j. Term and Payments. The sum of all periodic monthly installment payments indicated herein or on any application shall constitute the aggregate payments under the lease. The term of the lease shall commence as of the date that the lease is accepted by Lessor (the “Commencement Date”), and shall continue until all of Lessee’s obligations under the lease have been fully performed. The installment payments shall be payable monthly in advance, the first payment being due on the Commencement Date, or such later date as Lessor designates in writing, and subsequent payments shall be due on the same day of each successive month thereafter until all of the balance of the payments and any additional payments or expenses payable by Lessee under the lease have been paid in full. All payments shall be made to Lessor by pre-authorized debit as contemplated herein or at the address set forth herein or such other address as Lessor may designate in writing. Lessee hereby authorizes Lessor and its agents to withdraw without advance notice to Lessee, which notice Lessee waives, any amounts, including without limitation any and all taxes now due or imposed, owed by Lessee in conjunction with the lease, by initiating periodic debit entries to the DDA all in accordance with and subject to the terms of Section (A)(19)(a) above. Upon a Default (as defined below), Lessee authorizes debit of the DDA for the full amount due under the lease. Lessee agrees that any withdrawals authorized above are pre-authorized debits for business purposes, as defined under Rule H1 of the CPA. Lessee represents, warrants and guarantees that all persons whose signatures are required to sign on the DDA have signed the lease and that the DDA is a business purpose account. By providing and delivering this authorization to Lessor, this constitutes delivery to the financial institution that maintains the DDA. A lease payment (whether paid by debit or other means) that is not honored by Lessee’s financial institution for any reason will be subject to a returned item service fee in the amount of $20 payable by Lessee to Lessor, the amount of which may be debited from the DDA. Should it be necessary to switch to statement billing from pre-authorized debits, Lessor is authorized to add a $10.00 per month service charge to the monthly payment amount as reimbursement for the added service and processing expenses. Lessee’s obligation to make all payments hereunder shall be absolute and unconditional and is not subject to any abatement, set-off, compensation, defense or counterclaim for any reason whatsoever. If a security deposit is required, the same shall be held by Lessor to secure the faithful performance of the lease and returned or applied in accordance with the terms of the lease. If Lessee fails to make any monthly payment or other amount required herein to be paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition to the required payment, a late fee of 15% of the amount past due (but at least $7.50) for each late payment. Each month the past due payment remains unpaid, an additional late fee will be assessed. Payments are applied to late fees and service charges first and then to payments in respect of lease obligations. These amounts shall be payable in addition to all amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein provided. If Lessee requests and Lessor provides any services not set out herein, Lessee agrees to pay additional applicable fees. In addition to the payment of monthly rent, Lessee agrees to pay Lessor an annual fee in an amount not to exceed $50.00 for the administration, billing, reconciliation, and tracking of payments due under the lease, which may generate a profit to Lessor.

k. Assignment. (a) Lessor may assign or transfer the lease or Lessor’s interest in the Leased Equipment without notice to or consent by Lessee. Any assignee of Lessor shall have all of the rights, but none of the obligations, of Lessor under the lease and Lessee agrees that it will not assert against any assignee of Lessor any defense, counterclaim, set-off or compensation that Lessee may have against Lessor, (b) Lessee shall not assign all or any part of Lessee’s rights or obligations under the lease or enter into any sublease of all or any part of the Leased Equipment without Lessor’s prior written consent, (c) Lessee shall not create, incur, assume or suffer to exist any security interest, mortgage, lien, pledge, hypothec or other right, encumbrance or attachment of any kind whatsoever upon, affecting or with respect to the Leased Equipment or the lease or any of Lessor’s interests thereunder.

l. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased Equipment. Lessor may at Lessee’s expense, cause the lease or any document, statement or other instrument in respect to the lease showing Lessor’s interest in the Leased Equipment, including without limitation Personal Property Security Act or Civil Code of Québec financing statements, to be filed, registered or recorded and/or refiled, reregistered and rerecorded. Lessee waives the right, where permitted by law, to receive a copy of any financing statement, financing change statement or verification statement. Lessee agrees to execute and deliver any document, statement or instrument requested by Lessor for such purpose, and agrees to reimburse Lessor for any expense arising therefrom. Lessee shall at Lessee’s expense protect and defend Lessor’s title against all persons claiming against or through Lessee, at all times keep the Leased Equipment free from legal process or encumbrance whatsoever, and shall give Lessor immediate notice thereof and shall indemnify Lessor from any loss caused thereby. Lessee agrees to procure for and deliver to Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver or other similar documents as Lessor may request. Provided Lessee is not in default hereunder, Lessee may quietly use and enjoy the Leased Equipment subject to the terms hereof.

m. Care, Use and Location. Lessee shall maintain the Leased Equipment in good operating condition, repair and appearance, and protect the same from deterioration other than normal wear and tear; shall use the Leased Equipment in the regular course of Lessee’s business, within its normal operating capacity, without abuse, and shall comply with all laws, ordinances, regulations, requirements and rules with respect to the use, maintenance and operation of the Leased Equipment; shall use the Leased Equipment solely for business purposes; shall not make any modification, alteration or addition to the Leased Equipment without Lessor’s prior written consent; shall not affix the Leased Equipment to real or immovable property as to change its nature to a fixture; shall keep the Leased Equipment at the location(s) to which Lessor has agreed, and shall not move the Leased Equipment from such location(s) without Lessor’s prior written consent. Under no circumstances does Lessor have any responsibility to install, promote, service, clean, maintain or repair the Leased Equipment, all of which is Lessee’s responsibility.

n. Net Lease; Taxes. Lessee intends the monthly payments hereunder to be net to Lessor, and Lessee agrees to pay all provincial, territorial and federal sales, goods and services, harmonized, use, excise, stamp, documentary and ad valorem taxes, license and registration fees, assessments, fines, penalties and similar charges imposed on the lease, possession or use of the Leased Equipment during the term of the lease; Lessee shall pay all taxes (except Lessor’s net capital and income taxes) imposed on Lessor or Lessee with respect to the payments hereunder or the lease of the Leased Equipment; and, shall reimburse Lessor upon demand for any taxes paid by or advanced by Lessor. Lessor is entitled to the tax benefits available to an owner of the Leased Equipment, including without limitation, the right to claim tax depreciation, capital cost allowance or other deductions in respect of the capital cost thereof, investment tax credits and deductions for interest incurred by Lessor to finance the purchase of the Leased Equipment, and Lessee shall not take any tax filing position inconsistent with the foregoing.

o. Indemnity. Lessee agrees to indemnify and save Lessor, Lessor’s agents, servants, successors and assigns harmless from any and all liability, damage or loss, including without limitation reasonable legal fees, arising out of the ownership, selection, possession, leasing, operation, control, use, condition (including but not limited to latent and other defects, whether or not discoverable by Lessee), maintenance, delivery and return of the Leased Equipment. The indemnities and obligations herein provided shall continue in full force and effect notwithstanding the termination of the lease.

p. Insurance. Lessee shall keep the Leased Equipment insured against all risks of loss or damage from any cause whatsoever for not less than the full replacement value thereof. The amount of such insurance shall be sufficient so that neither Lessor nor Lessee will be considered a co- insurer. Lessee shall carry public liability insurance, both personal injury and equipment damage, covering the Leased Equipment. All such insurance shall be in form and with insurers satisfactory to Lessor, and shall name Lessor and any assignee as first loss payee as its interest may appear with respect to equipment damage coverage and as additional insured with respect to public liability coverage. Lessee shall pay the premiums for such insurance and upon request deliver to Lessor satisfactory evidence of insurance coverage required hereunder. The proceeds of such insurance payable, as a result of loss or damage to any item of Leased Equipment, shall be applied to satisfy Lessee’s obligation as set forth in Section (A)(19)(q) below. Lessee hereby irrevocably appoints Lessor as Lessee’s attorney-in-fact, to make a claim for, receive payment of and execute and endorse all documents, cheques or drafts, received in payment for loss or damage under any such insurance policy. This appointment is coupled with an interest and is irrevocable.

q. Loss or Destruction of Leased Equipment. Lessee shall notify Lessor immediately and shall bear the entire risk and be responsible for loss, theft, damage or destruction of the Leased Equipment from any cause whatsoever after taking possession of the Leased Equipment. In such event, Lessee shall at Lessee’s expense (except to the extent of any proceeds of insurance provided by Lessee which shall have been received by Lessor as a result thereof), and at Lessor’s option, shall either (a) repair such item, returning it to its previous condition, unless damaged beyond repair; or (b) pay Lessor all accrued and unpaid monthly payments and late charges payable hereunder, plus an amount (the “Loss Amount”) equal to (i) the value of all monthly payments to become due during the remaining term of the lease, plus (ii) the amount of any purchase option or obligation with respect to the Leased Equipment or, if there is no such option or obligation, the fair market value of the Leased Equipment, as estimated by Lessor in Lessor’s sole reasonable discretion; or (c) replace such item with a like item acceptable to Lessor, in good condition and of equivalent value, which shall be and become Lessor’s property, shall be included within the term “Leased Equipment” as used herein and shall be leased from Lessor herewith for the balance of the full term of the lease.

r. Loss or Destruction Waiver. Lessor may in Lessor’s sole and absolute discretion waive Lessee’s responsibility for loss or destruction of the Leased Equipment and for keeping the Leased Equipment fully insured during the lease term (a “Loss or Destruction Waiver”). Should Lessee fail to provide proof of insurance, Lessor may invoke the Loss or Destruction Waiver and charge a monthly fee at current rates in order that Lessor may fully insure the Leased Equipment. In the event of loss or destruction of the Leased Equipment, Lessor shall provide for its replacement with Leased Equipment of comparable value at that time, provided (i) Lessee took reasonable care in preventing the loss or destruction of the Leased Equipment and (ii) Lessee has paid in a timely manner the required monthly fee for the Loss or Destruction Waiver. Lessee shall cooperate with Lessor in making any claim with respect to the Leased Equipment.

s. Default. If any one of the following events (each a “Default”) shall occur, then to the extent permitted by applicable law, Lessor shall have the right to exercise any one or more remedies set forth herein: (i) Lessee fails to pay any payments hereunder, monthly or otherwise, when due; or (ii) Lessee fails to pay, when due, any indebtedness owed to Lessor or any of Lessor’s affiliates arising independently of the lease, and such default shall continue for five (5) days; or
(iii) Lessee fails to perform any of the terms, covenants, or conditions of the lease, other than as provided above, after ten (10) days written notice; or (iv) Lessee becomes insolvent or make an assignment for the benefit of creditors; or (v) a receiver, trustee or liquidator of Lessee or of all or a substantial part of Lessee’s assets are appointed with or without Lessee’s application or consent; or (vi) an application for a bankruptcy order is filed, or any other proceedings are commenced by or against Lessee, or Guarantor, under the Bankruptcy and Insolvency Act (Canada), or under any other bankruptcy, arrangement, dissolution, liquidation or insolvency law(s) providing for relief of debtors.

t. Remedies. If a Default shall occur, Lessor may, at Lessor’s option, at any time (i) declare immediately due and payable and recover from Lessee, as liquidated damages for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid installment payments and late charges, taxes, and other fees, plus the Loss Amount; provided, however, that if a Default shall occur as described in any of Sections (A)(19)(s)(iv) through (vi) above, Lessor without any notice or action shall be deemed to have made such a declaration; (ii) automatically charge any or all of Lessee’s credit cards or accounts, other lines-of-credit or the DDA or other bank accounts for all money amounts owed; (iii) to the extent permitted by applicable Law, without demand or legal process, enter into the premises where the Leased Equipment may be found and take possession of and remove the Leased Equipment, without liability for such retaking; (iv) hold, sell or otherwise dispose of any such Leased Equipment at a private or public sale; or (v) exercise any other remedies available under applicable Law. If Lessor takes possession of the Leased Equipment, Lessor shall give Lessee credit for any sums received by Lessor from the sale or rental of the Equipment after deduction of the expenses of sale or other disposition and Lessee shall remain liable to Lessor for any deficiency. Notwithstanding the foregoing, to the extent any software forming part of the Leased Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or the licensor of such software shall have no duty to remarket such software or otherwise mitigate any damages relating to such software. Lessee shall also be liable for and shall pay to Lessor (i) all expenses incurred by Lessor in connection with the enforcement of any of Lessor’s remedies including without limitation all collection expenses, that includes, but is not limited to, charges for collection letters and collection calls, charges of collection agencies, sheriffs, etc.; and all expenses of repossessing, storing, shipping, repairing and selling the Leased Equipment; and (ii) reasonable legal fees and court costs. Lessee and Lessor acknowledge the difficulty in establishing a value for the unexpired lease term and, owing to such difficulty, agree that the provisions of this paragraph represent an agreed measure of damages and are not to be deemed a forfeiture or penalty. All of Lessor’s remedies hereunder are cumulative, are in addition to any other remedies provided for by law, and may, to the extent permitted by law, be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on Lessor’s part to exercise and no delay in exercising any right to remedy shall operate as a waiver thereof or modify the terms of the lease.

u. END OF LEASE TERM. (I) UPON EXPIRATION OF THE LEASE TERM, LESSEE SHALL HAVE THE OPTION TO PURCHASE THE LEASED EQUIPMENT FOR AN AMOUNT EQUAL TO 10% OF THE AGGREGATE LEASE PAYMENTS ON 12 MONTH, 24 MONTH, 36 MONTH, 48 MONTH OR 60 MONTH LEASES. WRITTEN NOTICE OF THE EXERCISE OF THIS OPTION MUST BE SENT TO LESSOR AT LEAST THIRTY (30) DAYS PRIOR TO EXPIRATION OF THE LEASE TERM; (II) IF LESSEE DOES NOT ELECT TO PURCHASE THE LEASED EQUIPMENT, THEN UPON EXPIRATION OR EARLIER TERMINATION OF THE LEASE, LESSEE SHALL RETURN THE LEASED EQUIPMENT TO LESSOR IN GOOD OPERATING CONDITION AND REPAIR, SHIPPED BY PREPAID AND INSURED FREIGHT TO A LOCATION DESIGNATED BY LESSOR. IF THE LEASED EQUIPMENT IS RETURNED DAMAGED, INCOMPLETE OR SHOWS SIGNS OF EXCESSIVE WEAR, LESSEE AGREES TO PAY THE REPLACEMENT COST AND/OR THE REPAIR, REFURBISHING AND CLEANING COST IN AN AMOUNT DESIGNATED BY LESSOR WHICH IS PAYABLE WITHIN TEN (10) DAYS OF LESSOR’S DEMAND;
(III) IF LESSEE DOES NOT ELECT TO PURCHASE OR RETURN THE LEASED EQUIPMENT AS PROVIDED IN (I) OR (II) ABOVE, THE LEASED EQUIPMENT SHALL CONTINUE TO BE HELD AND LEASED HEREUNDER AND THE LEASE SHALL BE EXTENDED INDEFINITELY AS TO TERM AT THE THEN CURRENT MONTHLY PAYMENT UNTIL LESSOR HAS RECEIVED PAYMENT AT LEAST EQUAL TO LESSOR’S FULL INVESTMENT IN THE LEASED EQUIPMENT, AS CALCULATED BY LESSOR, FOLLOWING WHICH, AND UPON NOTICE FROM LESSOR TO LESSEE, LESSEE SHALL BE DEEMED TO HAVE PURCHASED THE LEASED EQUIPMENT FROM LESSOR ON AN “AS IS, WHERE IS” BASIS, SUBJECT TO THE RIGHT OF EITHER LESSEE OR LESSOR TO TERMINATE THE LEASE UPON THIRTY (30) DAYS WRITTEN NOTICE, WHEREUPON LESSEE SHALL DELIVER THE LEASED EQUIPMENT TO LESSOR AS SET FORTH IN THIS PARAGRAPH; AND (IV) PROVIDED LESSEE HAS FULFILLED ALL OF LESSEE’S OBLIGATIONS HEREUNDER, LESSEE’S SECURITY DEPOSIT, IF ANY, (1) SHALL BE REFUNDED AT THE EXPIRATION OF THE LEASE WITHOUT INTEREST OR (2) AT LESSEE’S DIRECTION, SUCH SECURITY DEPOSIT MAY BE APPLIED TO THE PURCHASE OF THE LEASED EQUIPMENT BY LESSEE.

v. Privacy. Each of Lessee and Guarantor consents and agrees that Lessor may (i) collect and use any personal information provided by Lessee or Guarantor or obtained under any provision of the lease for the purpose of furthering the objects of the lease and to respond to any further application for services by Lessee; (ii) use such information to conduct credit checks from time to time with credit bureaus; (iii) disclose such information and any information regarding late payments, missed payments or Defaults hereunder to Lessor’s affiliates and third party service providers, payment networks, credit bureaus or agencies, financial institutions and similar parties for the purposes stated herein; (iv) use such information to investigate potentially fraudulent or questionable activities regarding the Leased Equipment or services for which the Leased Equipment is used; (v) use or disclose such information in the course of any actual or potential sale, reorganization, amalgamation or other change to Lessor’s business or assignment under Section (A)(19)(k) above; (vi) collect, use and disclose such information when required or permitted by applicable law, regulation or legal process; and (vii) retain all such information for such periods of time as required by Lessor to perform Lessor’s obligations and exercise Lessor’s rights under the lease.

w. Miscellaneous. Lessee shall inform Lessor of any change in Lessee’s name, address, billing address, telephone numbers, location of the Leased Equipment, or the DDA. If Lessee fails to comply with any provision of the lease, Lessor shall have the right, but not be obligated, to effect such compliance on Lessee’s behalf upon ten (10) days prior written notice to Lessee. In such event, all monies expended by Lessor and all Lessor’s expenses in effecting such compliance, shall be deemed to be additional obligations hereunder, and shall be paid by Lessee at the time of the next monthly payment hereunder. All notices under the lease shall be sufficient if given personally or mailed postage prepaid to the party intended at the respective address set forth herein, or at such other address as said party may provide in writing from time to time. The lease inures to the benefit of and is binding upon the personal representatives, successors, heirs and assigns of the parties hereto. Time is of the essence of the lease. Lessee and Lessor intend the lease to be a valid and subsisting legal instrument, and agree that no provision of the lease that may be deemed unenforceable in any jurisdiction shall in any way invalidate any other provision or provisions of the lease in that jurisdiction, all of which shall remain in full force and effect. References to any legislation, statutory instrument, regulation, rule or a section thereof, unless otherwise specified, is a reference to the legislation, statutory instrument, regulation, rule or section as amended, restated or re-enacted from time to time. The lease and the personal guarantee set forth herein shall be binding on Lessee and Guarantor when accepted in writing by Lessor and shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable in such Province, except in the event that the Leased Equipment is situated in the Province of Québec, in which case the lease shall be governed by the laws of the Province of Québec and the federal laws of Canada applicable in such Province. The limitation period in the lease is extended to the greater of six years or any longer period permitted by applicable law. For greater certainty, each of the parties hereto acknowledges that the lease is a “business agreement” as defined under Section 22 of the Limitations Act, 2002 (Ontario).

x. Security Agreement. The following sentence is hereby added to the end of Section (A)(6)(a)(i): “The hypothec created pursuant to this Section (A)(6)(a)(i) is granted for the sum of $1,000,000 with interest at the rate of twenty-five percent (25.0%) per annum.”

20. EQUIPMENT LEASING

If Merchant has elected to lease any Leased Equipment from Lessor, the following terms and conditions apply to Merchant as Lessee of the Leased Equipment:

a. Non-Cancellable Lease. THIS LEASE IS NONCANCELABLE AND AN IRREVOCABLE AGREEMENT. THIS EQUIPMENT LEASE AGREEMENT CANNOT BE CANCELED OR TERMINATED BY MERCHANT. Lessor, its successors and assigns, does hereby lease to Lessee and Lessee hereby rents from Lessor the Leased Equipment, on terms and conditions set forth in this Section.

b. No Warranties by Lessor. Lessee represents that Lessee has selected and approved the Leased Equipment leased hereunder and Lessee acknowledges Lessor has made and makes no representations or warranties of any kind or nature, directly or indirectly, expressed or implied, as to any matter whatsoever, including the suitability of the Leased Equipment, its durability, its condition, and/or its quality. Lessee leases the Leased Equipment “as-is.” Lessor also disclaims any warranty of merchantability or fitness for use or purpose whether arising by operation of law or otherwise. Lessor and Lessor’s assignee shall not be liable to Lessee or others for any loss, damage or expense of any kind or nature caused directly or indirectly by any Leased Equipment however arising, or the use or maintenance thereof or the failure of operation thereof, or the repairs, service or adjustment thereto. No representation or warranty as to the Leased Equipment or any other matter by the Leased Equipment supplier (“Equipment Vendor”) identified in the Merchant Application, or elsewhere in the Agreement, or others shall be binding on the Lessor nor shall the breach of such relieve Lessee of, or in any way affect, any of Lessee’s obligations to Lessor herein.

If the Leased Equipment is not satisfactory for any reason, Lessee shall make any claim on account thereof solely against the Equipment Vendor and Lessee shall nevertheless pay Lessor all rent payable under the lease. Lessor agrees to assign to Lessee, solely for the purpose of making and prosecuting any such claim, any rights it may have against the Equipment Vendor for breach of warranty or representation respecting the Leased Equipment.

Regardless of cause, Lessee will not assert any claim whatsoever against Lessor for loss of anticipatory profits or any other indirect, special, or consequential damages. Lessor makes no warranty as to the treatment of the lease for accounting or tax purposes. NOTWITHSTAND- ING ANY FEES WHICH MAY BE PAID BY LESSOR TO EQUIPMENT VENDOR OR ANY AGENT OF THE LESSOR, LESSEE UNDERSTANDS AND AGREES THAT NEITHER THE EQUIPMENT VENDOR NOR ANY AGENT OF THE EQUIPMENT VENDOR IS AN AGENT OF LESSOR OR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THE LEASE.

c. Authorization for Automatic Withdrawal of Monthly Payments. Lessee hereby authorizes Lessor, or its designee, successor or assign to withdraw the monthly lease amount and any additional amounts, including any and all taxes now due or imposed, owed by Lessee in connection with the Leased Equipment, by initiating debit entries to the DDA indicated on the Merchant Application or the Agreement, or such other DDA as the Lessee may from time to time use. In the event of default of Lessee’s obligations hereunder, Lessee authorizes the debit of its DDA for the full amount due under the lease. Lessee agrees to contest transactions that might be invalid within ninety (90) days of the transaction date, or the transaction will be deemed valid. A rental payment (whether paid by debit or other means) that is not honored by Lessee’s financial institution for any reason will be subject to a returned item service fee imposed by Lessor, the amount of which may be debited from Lessee’s DDA. Should it be necessary to switch to statement billing, Lessor is authorized to add a $10.00 per month service charge to Lessee’s monthly payment amount as reimbursement for the added service and processing expenses. In the event that Lessor withdraws funds erroneously from Lessee’s DDA, Lessee authorizes Lessor to credit Lessee’s DDA for an amount not to exceed the original amount of the debit. This authorization is to remain in full force and effect until Lessor and Lessee’s financial institution have received written notice from Lessee of its termination in such time and in such manner as to afford Lessor and Lessee’s financial institution a reasonable opportunity to act. LESSEE REPRESENTS AND WARRANTS THAT ITS DDA HAS BEEN ESTABLISHED AS A BUSINESS-PURPOSE CHECKING ACCOUNT.

d. Finance Lease. Lessor and Lessee agree that the lease is a “Finance Lease” as defined by Section 11-2A-103(g) of the GA UCC. Lessee acknowledges either (i) that Lessee has reviewed and approved any written “Supply Contract” as defined by GA UCC Section 11-2A-103(y) covering the Leased Equipment purchased from the “Supplier” as defined by GA UCC Section 11-2A-103(x) thereof for lease to Lessee or (ii) that Lessor has informed or advised Lessee, in writing, either previously or by the lease of the following: (1) the identity of the Supplier; (2) that the Lessee may have rights under the Supply Contract; and (3) that the Lessee may contact the Supplier for a description of any such rights Lessee may have under the Supply Contract.

e. Ordering Equipment; Lessor’s Right to Terminate. Lessee requests Lessor to purchase the Leased Equipment from Equipment Vendor and arrange for delivery to Lessee at Lessee’s expense. If within forty-five (45) days from the date Lessor orders the Leased Equipment, the same has not been delivered, installed and accepted by Lessee in form satisfactory to Lessor, Lessor may on ten (10) days written notice to Lessee terminate the lease and its obligations to Lessee.

f. Term and Rent. The sum of all periodic installments of rent indicated in the Merchant Application or the Agreement shall constitute the aggregate rent reserved under the lease. The lease term shall commence as of the date that the lease is accepted by Lessor, (the “Commencement Date”), and shall continue until the obligations of the Lessee under the lease shall have been fully performed. The installments of rent shall be payable monthly in advance as stated above or on a schedule, the first such payment being due on the Commencement Date, or such later date as Lessor designates in writing, and subsequent payments shall be due on the same day of each successive month thereafter until the balance of the rent and any additional rent or expenses chargeable to Lessee under the lease shall have been paid in full. All payments of rent shall be made to Lessor at the address set forth in the Merchant Application or the Agreement or such other address as Lessor may designate in writing. Lessee’s obligation to pay such rentals shall be absolute and unconditional and is not subject to any abatement, set-off, defense of counterclaim for any reason whatsoever. Lessee hereby authorizes Lessor to insert into the lease the serial numbers and other identification data of the Leased Equipment when determined by Lessor and dates or other omitted factual matters and to correct any typographical or spelling errors. If a security deposit is indicated in the Merchant Application, or in any additional application and setup forms, the same shall be held by Lessor to secure the faithful performance of the terms of the lease and returned or applied in accordance with Section (A)(20)(q)(iv) below. In addition to the payment of monthly rent, Lessee agrees to pay Lessor an annual fee in an amount not to exceed $50.00 for the administration, billing, reconciliation, and tracking of payments due under the lease, which may generate a profit to Lessor.

g. Assignment. (i) LESSOR MAY ASSIGN OR TRANSFER THE LEASE OR LESSOR’S INTEREST IN THE LEASED EQUIPMENT WITHOUT NOTICE TO LESSEE. Any assignee of Lessor shall have all of the rights, but none of the obligations, of Lessor under the lease and Lessee agrees that it will not assert against any assignee of Lessor any defense, counterclaim or offset that Lessee may have against Lessor. Lessee acknowledges that any assignment or transfer by Lessor shall not materially change Lessee’s duties or obligations under the lease nor materially increase the burdens or risks imposed on Lessee. Lessee agrees that Lessor may assign or transfer the lease or Lessor’s interest in the Leased Equipment even if said assignment or transfer could be deemed to materially affect the interest of Lessee. (ii) LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE LEASED EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. (iii) Lessee shall not create, incur, assume or suffer to exist any mortgage, lien, pledge or other encumbrance or attachment of any kind whatsoever upon, affecting or with respect to the Leased Equipment or the lease or any of Lessor’s interests thereunder.

h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased Equipment. All documents of title and evidence of delivery shall be delivered to Lessor. Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement or other instrument in respect to the lease showing the interest of Lessor in the Leased Equipment including Uniform Commercial Code Financing Statements, to be filed or recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s name thereto. Lessee agrees to execute and deliver any statement or instrument requested by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing, recording or stamp fees or taxes arising from the filing or recording of any such instrument or statement. Lessee shall at its expense, protect and defend Lessor’s title against all persons claiming against or through Lessee, at all times keep the Leased Equipment free from legal process or encumbrance whatsoever and, shall give Lessor immediate notice thereof and shall indemnify Lessor from any loss caused thereby. Lessee agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver or other similar documents as Lessor may reasonably request. Provided Lessee is not in default hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the terms hereof.

i. Care, Use and Location. Lessee shall maintain the Leased Equipment in good operating condition, repair and appearance, and protect the same from deterioration other than normal wear and tear; shall use the Leased Equipment in the regular course of its business, within its normal operating capacity, without abuse, and shall comply with all Laws with respect to the use, maintenance and operation of the Leased Equipment; shall use the Leased Equipment solely for business purposes; shall not make any modification, alteration or addition to the Leased Equipment, without the written consent of Lessor, which shall not be unreasonably withheld; shall not at any time so affix the Leased Equipment to realty as to change its nature to real equipment or to a fixture regardless of how attached or installed; shall keep the Leased Equipment at the location shown in the Merchant Application or the Agreement, and shall not remove the Leased Equipment without written consent of Lessor, which shall not be unreasonably withheld.

j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor, and Lessee agrees to pay all sales, use, excise, personal equipment, stamp, documentary and ad valorem taxes, license and registration fees, assessment, fines, penalties and similar charges imposed on the ownership, possession or use of the Leased Equipment during the term of the lease; shall pay all taxes (except Lessor’s federal or state net income taxes) imposed on Lessor or Lessee with respect to the rental payments hereunder or the ownership of the Leased Equipment; and, shall reimburse Lessor upon demand for any taxes paid by or advanced by Lessor. Lessee agrees that the reimbursement of equipment tax calculation is based on an average tax rate. Unless otherwise agreed to in writing, Lessee shall file personal equipment tax returns with respect to the Leased Equipment.

k. Indemnity. Lessee shall and does hereby agree to indemnify and save Lessor, its agents, servants, successors, and assigns harmless from any and all liability, damage or loss, including reasonable attorney’s fees, arising out of the ownership, selection, possession, leasing, operation, control, use, condition (including but not limited to latent and other defects, whether or not discoverable by Lessee), maintenance, delivery and return of the Leased Equipment. The indemnities and obligations herein provided shall continue in full force and effect notwithstanding the termination of the lease.

l. Insurance. During the term of the lease, Lessee agrees to maintain, at Lessee’s expense, (i) “Special Form” property insurance protecting the Leased Equipment for its replacement value, naming Lessor as a loss payee on a “Lender’s Loss Payable” endorsement; and (ii) public liability insurance, in amounts acceptable to Lessor, naming Lessor as an additional insured (together, “Required Insurance”). Lessee must provide Lessor satisfactory written evidence of Required Insurance within thirty (30) days of the Commencement Date or any subsequent written request. If Lessee does not do so, Lessor may obtain insurance from an insurer of Lessor’s choosing in such forms and amounts as Lessor deems reasonable to protect Lessor’s interests (“Lease Insurance”). Lease Insurance covers the Leased Equipment and the Lessor; it does not name the Lessee as an insured and may not cover all of the Lessee’s interest in the Leased Equipment. Lessee agrees to pay Lessor periodic charges for Lease Insurance (“Insurance Charges”) that include: a premium that may be higher than if the Lessee maintained the Required Insurance separately; a finance charge of up to 1.5% per month on any premium advances made by the Lessor or Lessor’s agents; and billing and processing fees; each of which may generate a profit to Lessor and Lessor’s agents. Unless Lessee provides satisfactory evidence of Required Insurance by the Insurance Charge due date, Lessor will pay such Insurance Charge by debiting Lessee’s DDA under the withdrawal provision of the lease. Lessor shall discontinue billing Insurance Charges upon receipt of satisfactory evidence of Required Insurance. Lessee agrees to arbitrate any dispute with Lessor or Lessor’s agents regarding Lease Insurance or Insurance Charges under the rules of the American Arbitration Association in Atlanta, Georgia; provided however, such agreement does not authorize class arbitration.

m. Loss or Destruction of Leased Equipment. Lessee shall bear the entire risk and be responsible for loss, theft, damage or destruction of the Leased Equipment from any cause whatsoever after taking possession of the Leased Equipment. Lessee shall notify Lessor immediately if the Leased Equipment is lost, destroyed, stolen or taken by any other person. In the event of loss, damage or destruction of any item of Leased Equipment, Lessee at its expense (except to the extent of any proceeds of insurance provided by Lessee which shall have been received by Lessor as a result of such loss, damage or destruction), and at Lessor’s option, shall either (i) repair such item, returning it to its previous condition, unless damaged beyond repair;
(ii) pay Lessor all accrued and unpaid rental payments and late charges, plus an amount (the “Loss Amount”) equal to (1) the value of all rental payments to become due during the remaining term of the lease, plus (2) the amount of any purchase option or obligation with respect to the Leased Equipment or, if there is no such option or obligation, the fair market value of the Leased Equipment, as estimated by Lessor in its sole reasonable discretion; or (iii) replace such item with a like item acceptable to Lessor, in good condition and of equivalent value, which shall become equipment of Lessor, included within the term “Leased Equipment” as used herein, and leased from Lessor herewith for the balance of the full term of the lease.

n. Loss or Destruction Waiver. Lessor may waive Lessee’s responsibility for loss or destruction of the Leased Equipment and for keeping the Leased Equipment fully insured during the lease term (a “Loss or Destruction Waiver”). Should Lessee fail to provide proof of insurance, Lessor may invoke the Loss or Destruction Waiver and charge a monthly fee at current rates in order that Lessor may fully insure the Leased Equipment. In the event of loss or destruction of the Leased Equipment, Lessor shall provide for its replacement with Leased Equipment of comparable value at that time provided (i) Lessee took reasonable care in preventing the loss or destruction of the Leased Equipment and (ii) Lessee has paid in a timely manner the required monthly amount for the Loss or Destruction Waiver. Lessee shall cooperate with Lessor in making any claim with respect to the Leased Equipment.

o. Event of Default. If any one of the following events (each an “Event of Default”) shall occur, then to the extent permitted by applicable Law, Lessor shall have the right to exercise any one or more remedies set forth in Section (A)(20)(p) below: (i) Lessee fails to pay any rental or any other payment hereunder when due; (ii) Lessee fails to pay, when due, any indebtedness of Lessee to Lessor arising independently of the lease, and such default shall continue for five (5) days; (iii) Lessee fails to perform any of the terms, covenants, or conditions of the lease, other than as provided above, after ten (10) days written notice; (iv) Lessee becomes insolvent or makes an assignment for the benefit of creditors; (v) a receiver, trustee, conservator, or liquidator of Lessee, of all or a substantial part of its assets, is appointed with or without the application or consent of Lessee; or (vi) a petition is filed by or against Lessee under the Bankruptcy Code of 1978, as amended, or under any other insolvency law(s), providing for relief of debtors.

p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time (i) declare immediately due and payable and recover from Lessee, as liquidated damages for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided, however, that if an Event of Default shall occur as described in Section (A)(20)(o)(iv) through (vi) above, Lessor without any notice or action shall be deemed to have made such a declaration; (ii) automatically charge any or all of Lessee’s credit cards or accounts, other lines of credit or the DDA or other bank accounts for all money amounts owed; (iii) to the extent permitted by applicable Law, without demand or legal process, enter into the premises where the Leased Equipment may be found and take possession of and remove the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or otherwise dispose of any such Leased Equipment at a private or public sale; or (v) exercise any other remedies available under applicable Law. In the event Lessor takes possession of the Leased Equipment, Lessor shall give Lessee credit for any sums received by Lessor from the sale or rental of the Leased Equipment after deduction of the expenses of sale or rental and Lessee shall remain liable to Lessor for any deficiency. Notwithstanding the foregoing, to the extent any software included with the Leased Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or the licensor of such software shall have no duty to remarket or otherwise mitigate any damages relating to such software.

Lessee shall also be liable for and shall pay to Lessor (i) all expenses incurred by Lessor in connection with the enforcement of any of Lessor’s remedies including all collection expenses, that includes, but is not limited to, charges for collection letters and collection calls, charges of collection agencies, sheriffs, etc.; and all expenses of repossessing, storing, shipping, repairing and selling the Leased Equipment; and (ii) reasonable attorney’s fees and court costs. Lessor and Lessee acknowledge the difficulty in establishing a value for the unexpired lease term and, owing to such difficulty, agree that the provisions of this Section represent an agreed measure of damages and are not to be deemed a forfeiture or penalty. All remedies of Lessor hereunder are cumulative, are in addition to any other remedies provided for by Law, and may, to the extent permitted by Law, be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of the Lessor to exercise and no delay in exercising any right to remedy shall operate as a waiver thereof or modify the terms of the lease.

q. END OF LEASE TERM. (i) UPON EXPIRATION OF THE LEASE TERM, LESSEE SHALL HAVE THE OPTION TO PURCHASE LEASED EQUIPMENT FOR ITS RESIDUAL FAIR MARKET VALUE OR RETURN THE LEASED EQUIPMENT TO LESSOR.

(ii) THE EXERCISE OF THIS OPTION MUST BE COMMUNICATED TO LESSOR IN WRITING AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE LEASE TERM. THE LEASED EQUIPMENT IS SOLD “AS IS” “WHERE IS” “WITH ALL FAULTS.” EXCEPT AS PROVIDED IN THE LEASE, LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED EQUIPMENT PURCHASED.

(iii) IN THE EVENT LESSEE DOES NOT ELECT TO PURCHASE THE LEASED EQUIPMENT, THEN UPON EXPIRATION OR EARLIER TERMINATION OF THE LEASE, LESSEE SHALL RETURN THE LEASED EQUIPMENT TO LESSOR IN GOOD OPERATING CONDITION AND REPAIR, SHIPPED BY PREPAID AND INSURED FREIGHT TO A LOCATION DESIGNATED BY LESSOR. IF, IN THE JUDGMENT OF LESSOR, THE LEASED EQUIPMENT IS RETURNED DAMAGED, INCOMPLETE, OR SHOWS SIGNS OF EXCESSIVE WEAR, LESSEE AGREES TO PAY THE REPLACEMENT COST AND/OR THE REPAIR AND REFURBISHING COST (INCLUDING CLEANING), FOR AN AMOUNT DESIGNATED BY LESSOR AND PAYABLE WITHIN TEN (10) DAYS OF LESSOR’S DEMAND.

(iv) IF LESSEE DOES NOT ELECT TO PURCHASE OR RETURN THE LEASED EQUIPMENT UPON EXPIRATION OR TERMINATION OF THE LEASE AS PROVIDED HEREIN, THE LEASED EQUIPMENT SHALL CONTINUE TO BE HELD AND LEASED HEREUNDER, AND THE LEASE SHALL BE EXTENDED FOR A PERIOD OF UP TO TWELVE (12) MONTHS UPON THE EXISTING TERMS AND CONDITIONS OF THIS LEASE AGREEMENT AND AT THE SAME MONTHLY RENTAL, SUBJECT TO THE RIGHT OF EITHER THE LESSEE OR THE LESSOR TO TERMINATE THE LEASE UPON THIRTY (30) DAYS WRITTEN NOTICE, WHEREUPON THE LESSEE SHALL FORTHWITH DELIVER THE LEASED EQUIPMENT TO LESSOR AS SET FORTH IN THIS SECTION. ONCE THE LESSEE HAS FULLY PAID THE ADDITIONAL TWELVE (12) MONTHS OF EXTENDED LEASE RENTAL, SUCH PAYMENT SHALL OPERATE AS PAYMENT OF THE RESIDUAL FAIR MARKET VALUE OF THE EQUIPMENT AND LESSEE WILL BE DEEMED TO HAVE PURCHASED THE LEASED EQUIPMENT.

(v) PROVIDED LESSEE HAS FULFILLED ALL OF ITS OBLIGATIONS TO LESSOR HEREUNDER, LESSEE’S SECURITY DEPOSIT OR SECURITY RESERVE, IF ANY, AS INDICATED IN THE MERCHANT APPLICATION, OR IN ANY ADDITIONAL APPLICATION AND SETUP FORMS, (1) SHALL BE REFUNDED TO LESSEE AT THE EXPIRATION OF THE LEASE WITHOUT INTEREST OR (2) AT LESSEE’S DIRECTION, SUCH SECURITY DEPOSIT MAY BE APPLIED TO THE PURCHASE OF THE LEASED EQUIPMENT, IN WHICH EVENT THE LEASED EQUIPMENT NEED NOT BE RETURNED TO LESSOR.

r. Entire Agreement; Changes. The lease contains the entire agreement between the parties and may not be altered, amended, modified, terminated or otherwise changed except in writing and signed by an executive officer of Lessor and by the Lessee.

s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each late payment. Each month the past due payment remains unpaid, an additional late fee in the amount defined will be assessed. Payments are applied to late fees and service charges first and then to the lease obligation. Amounts shall be payable in addition to all amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an applicable fee for delivery of such services. Lessee shall inform Lessor of any change in Lessee’s name, address, billing address, telephone numbers, location of the Leased Equipment, or DDA. In the event Lessee fails to comply with any provision of the lease, Lessor shall have the right, but not be obligated, to affect such compliance on behalf of Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies expended by, and all expenses of Lessor in effecting such compliance, shall be deemed to be additional rental, and shall be paid by Lessee at the time of the next monthly payment of rent. All notices under the lease shall be sufficient if given personally or mailed postage prepaid to the party intended at the respective address set forth herein, or at such other address as said party may provide in writing from time to time. The lease inures to the benefit of and is binding upon the personal representatives, successors and assigns of the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease to be a valid and subsisting legal instrument, and agree that no provision of the lease that may be deemed unenforceable shall in any way invalidate any other provision or provisions of the lease, all of which shall remain in full force and effect. The lease shall be binding when accepted in writing by Lessor and shall be governed by the laws of the State of Georgia, provided however, in the event the lease or any provision hereof is not enforceable under the laws of the State of Georgia then the laws of the state where the Leased Equipment is located shall govern. Lessee consents and submits to the jurisdiction of the federal and state courts located in the State of Georgia and within Fulton County (the “Courts”), and expressly agree to such forum for the bringing of any suit, action or other proceeding arising out of the Lessee’s obligations hereunder, and expressly waive any objection to venue in any such Courts and waive any right to a trial by jury so that trial shall be by and only to the Court. Lessee agrees that any process served for any court action or proceeding shall be valid if mailed by certified mail, return receipt requested.

t. Important Information about Credit Reporting. Lessor may report information about this account to credit bureaus. Late payments, missed payments, or other defaults on this account may be reflected in the credit report of Lessee and/or Guarantor.

21. ELECTRONIC GIFT CARDS

a. Electronic Gift Card Services. The following terms and conditions apply to Allegiance Merchant Services’s provision of Electronic Gift Card Services to Merchant:

i. Merchant Responsibilities.

aa. Merchant will comply with the Agreement and with all applicable provisions of the MOG in connection with Merchant’s receipt and use of the EGC Services.

bb. Merchant acknowledges and agrees that it is Merchant’s sole responsibility to comply with any and all applicable Laws governing the issuance, sale, distribution, use, and acceptance of Electronic Gift Cards (including all laws relating to purchase, service and dormancy fees, laws relating to expiration dates, and laws governing the treatment of unused or unclaimed funds or other property). Further, Merchant agrees to comply in a complete and timely manner with any such Laws, including but not limited to all escheatment, unclaimed property, money transmission and consumer protection laws, now or hereafter applicable to the issuance, sale, distribution, use or acceptance of Electronic Gift Cards.

cc. Until such time as Cardholder Data and Transaction data has been received and validated by Allegiance Merchant Services, Merchant will maintain sufficient “backup” information and data (e.g. Transaction Receipts or detailed reporting) with respect to Electronic Gift Cards sold to reconstruct any information or data loss due to any system malfunction or error in transmission.

dd. Allegiance Merchant Services must participate in all Electronic Gift Card Transactions. In the event that a third party must also participate in such a Transaction, Merchant will only use such third parties as have been approved by Allegiance Merchant Services for such purposes.

ee. All Electronic Gift Cards must be printed by Allegiance Merchant Services or an Allegiance Merchant Services-approved vendor.

ff. Merchant agrees to comply with the Graphic Specifications and Procedures provided by Allegiance Merchant Services and incorporated herein by reference as such may be amended from time to time by Allegiance Merchant Services in its sole discretion.

gg. Merchant shall pay the fees for the ECG Services as set forth in the Merchant Application, and in any additional application and setup forms. In addition to any other applicable fees, Merchant is responsible for all card production and delivery costs.

ii. Direct Settlement. Merchant authorizes Allegiance Merchant Services to initiate credit and debit entries among Merchant’s individual chain locations for any Transactions that change the balance of an Electronic Gift Card. In the event Allegiance Merchant Services is unable to accomplish a credit or debit entry to reflect the effect of a Transaction, Merchant further authorizes Allegiance Merchant Services to credit and/or debit the designated Master Account or Primary Merchant. Merchant also understands that Allegiance Merchant Services may, in its sole discretion, offset any debits against the related credit Transactions of the applicable chain or merchant location. Merchant also agrees to notify Allegiance Merchant Services in writing of any asserted errors within forty-five (45) days of the statement date on which the asserted error first appeared and understands that any failure to do so will preclude further claims or assertion of the error. Both Merchant and the individual chain locations agree to pay related direct settlement fees

iii. Warranties/Liability.

aa. Allegiance Merchant Services is not responsible for lost, stolen or fraudulent Electronic Gift Cards.

bb. Allegiance Merchant Services makes no warranty, express or implied, with respect to the products or Processing Services provided hereunder including, without limitation, any express or implied warranty regarding merchantability, fitness for purpose or compliance of the Processing Services or Electronic Gift Cards with any applicable Laws governing the issuance, sale, distribution, use, and acceptance of Electronic Gift Cards. This includes but is not limited to all escheatment, unclaimed property, money transmission and consumer protection Laws.

iv. Post Termination. Following termination, Merchant will pay Allegiance Merchant Services a transfer fee based in part on, but not limited to, the number of issued Electronic Gift Cards that must be converted to another processor and the data specifications required.

v. Additional Fees. Merchant agrees to pay Allegiance Merchant Services for Electronic Gift Card production once Merchant has approved the Electronic Gift Card design proof. Merchant accepts full responsibility for all Electronic Gift Card production costs. Merchant acknowledges that one proof per Electronic Gift Card order is included in the cost of Electronic Gift Card production and Merchant agrees to pay thirty-five dollars ($35) for additional proofs. If any order is cancelled prior to Electronic Gift Card production, Merchant agrees to pay Allegiance Merchant Services a one hundred dollar ($100) cancellation fee.

vi. Additional Locations. Locations, including chain locations, added to this processing relationship will be boarded on Allegiance Merchant Services’s system pursuant to the paperwork submitted by Merchant to Allegiance Merchant Services. However, in the event of an error or omission of fees payable by Merchant on the submitted paperwork, the Processing Services fees and other monthly fees applied to the locations during the initial set up or subsequent negotiations will be applied to such locations.

vii. Closing Locations. In the event that a particular location closes or changes its MID, Merchant agrees that Allegiance Merchant Services may bill the Primary Merchant for any fees associated with subsequent Transactions processed on Electronic Gift Cards activated by the closed MID. This would apply to any system generated Transactions including, but not limited to, deduction and points conversion Transactions. Monthly fees billed for Loyalty Cards/members activated at the closed location may also be billed to the Primary Merchant.

b. WebSuite Services. The following terms and conditions apply to Allegiance Merchant Services’s provision of WebSuite Services to Merchant:

i. Processing Services. Merchant acknowledges that Allegiance Merchant Services and Member will engage third party service providers to assist with the performance of the WebSuite Services.

ii. Merchant Responsibilities.

aa. Merchant will comply with the Agreement and with all applicable provisions of the MOG in connection with Merchant’s receipt and use of the WebSuite Services, including, as applicable, provisions regarding the acceptance of Payment Devices and the use of EGC Services.

bb. Merchant shall pay the fees for the WebSuite Services as set forth in the Agreement. In addition, for orders placed using a Payment Device, Merchant shall pay the applicable processing fee for such Payment Device, as set forth in the Agreement. Allegiance Merchant Services is entitled to pass through to Merchant any fee increases or new fees imposed upon Allegiance Merchant Services by any Payment Network and any other third party vendor used by Allegiance Merchant Services or Member to provide the WebSuite Services.

cc. Merchant must timely provide to Allegiance Merchant Services specifications for the customization of Merchant’s WebSuite site, including Customer options, web and e-mail content. Merchant modifications subsequent to the initial submission are subject to change fees.

dd. To the extent that Merchant posts any Electronic Gift Card information to Merchant’s WebSuite site, Allegiance Merchant Services and Member are not responsible for any such information.

ee. Merchant acknowledges that Allegiance Merchant Services and Member are not responsible for incomplete or inaccurate payment information that may be provided by any Customer in connection with the WebSuite Services. Merchant further acknowledges that additional Transaction verification and fraud prevention data elements and processes may be available through a particular Payment Network, including address verification, to reduce Transaction risk and that Allegiance Merchant Services and Member shall only be responsible for implementing any such Transaction risk controls as are specifically requested in writing by Merchant. The use of such Transaction risk controls does not constitute a guarantee of payment or prevent a Transaction from being disputed or subject to Chargeback.

ff. Merchant acknowledges that Allegiance Merchant Services or Member may provide sample terms of use, privacy policy, and other content and disclosure for use on WebSuite site. Merchant agrees that is has an opportunity to review such sample disclosure and revise or replace such sample disclosure with language of Merchant’s choice. Merchant’s use of the WebSuite site confirms that Merchant has had an opportunity to review the sample disclosures and agrees to be solely responsible for all content and disclosures on the WebSuite site.

gg. Merchant is fully responsible for all Retrieval Requests and Chargebacks under the Payment Network Regulations in connection with Transactions processed using the WebSuite Services. Upon receipt of a Retrieval Request or documentation related to a Chargeback from a Payment Network, Allegiance Merchant Services and Member will forward such request or documentation to Merchant. Merchant is responsible for responding, as appropriate, to each Retrieval Request or Chargeback.

iii. Electronic Gift Card Order Fulfillment. Allegiance Merchant Services will fulfill all WebSuite Electronic Gift Card orders, and include with each order a Merchant-approved standardized letter customized with the order detail. All orders will be shipped pursuant to the method directed by the Customer.

iv. Electronic Gift Card Loss Protection Program. Merchant shall determine which data elements it will require its Customers to provide to establish an account or register an Electronic Gift Card on Merchant’s WebSuite site. Merchant is responsible for notifying its Customers that in order to take advantage of the Electronic Gift Card loss protection program, the Electronic Gift Card must be registered prior to the loss. Once a registered Electronic Gift Card is reported lost or stolen via the WebSuite site, Allegiance Merchant Services will notify Merchant and freeze the unused balance of the Electronic Gift Card. Merchant is responsible for transferring the unused balance to a new Electronic Gift Card, sending a replacement Electronic Gift Card to the Customer, and notifying Allegiance Merchant Services of the replacement Electronic Gift Card via the WebSuite site.

v. Reloading of Electronic Gift Cards. Merchant shall determine all Electronic Gift Card reloading options available to its Customers. While the WebSuite Services permit the anonymous reloading of Electronic Gift Cards, Allegiance Merchant Services recommends that Merchant require its Customers to register the Electronic Gift Card in order to reload value onto the Electronic Gift Card.

vi. Customer Information. The WebSuite Services will permit Merchant to have access to Customer information and other data that Merchant determines is required to establish an account or register an Electronic Gift Card. Merchant is responsible for maintaining the appropriate safeguards to protect such Customer information, and to properly disclose the use of such information and its privacy policies on Merchant’s WebSuite site or website. Merchant must maintain the confidentiality of all Transaction and Cardholder Data as set forth in the Agreement.

vii. E-Certificates. Merchant may choose to use the E-Certificate module, which delivers a “virtual gift card” electronically. The terms applicable to Electronic Gift Cards herein equally apply to E-Certificates.

22. BILLER DIRECT SERVICES

The following terms and conditions apply to Allegiance Merchant Services’s provision of Biller Direct Services to Merchant:

a. General Provisions.

i. Acceptance of Payment Devices. In connection with its sale of goods or services or its receipt of bill payments, Merchant desires to accept Payment Devices in an online environment through the Allegiance Merchant Services-sponsored Biller Direct Services. Allegiance Merchant Services offers two types of Biller Direct Services: Bill Payment Portal (BPP) and Enterprise Billing Solutions (EBS). Merchant has selected its desired Biller Direct Services, including the desired fee funding model, if applicable, on the Biller Direct Services Enrollment Form, and in any additional application and setup forms. The terms and conditions for Merchant’s use of the Biller Direct Services are set forth in the Agreement and in the MOG and the ECS MOG.

ii. Transactions.

aa. Merchant Compliance. Merchant must comply with all requirements under Laws (including, without limitation, the Electronic Signatures in Global and National Commerce Act), Payment Network Regulations and the Agreement in connection with the Biller Direct Services. Merchant must also comply with the applicable procedures set forth in the MOG, the ECS MOG, and any other guides, manuals, or rules provided in writing by Allegiance Merchant Services or Member from time to time. For purposes of the Biller Direct Services only, Merchant will not receive Payment Device Transaction information and therefore Merchant is not obligated to comply with the requirements governing Merchant’s receipt and handling of payment information from Customers.

bb. Transaction Requirements. Before Allegiance Merchant Services and Member will process a Transaction on Merchant’s behalf, the Customer must affirmatively agree to engage in the Transaction through the Biller Direct Services web site or via the telephone, as applicable.

1. Customer Authentication. In addition to satisfying the applicable requirements set forth in the Agreement, the MOG, the ECS MOG (as applicable) and any other guides, manuals or materials provided to Merchant by Allegiance Merchant Services or Member, Merchant must provide to Allegiance Merchant Services and Member such Customer information as may reasonably be required for Allegiance Merchant Services and Member to perform their obligations under the Agreement. Allegiance Merchant Services and Member will authenticate the identity of each Customer, on Merchant’s behalf, based solely on the Customer information provided by Merchant to Allegiance Merchant Services and using the authentication criteria as directed by Merchant. Merchant agrees that Allegiance Merchant Services and Member are entitled to rely on the accuracy of the Customer information provided by Merchant and that Allegiance Merchant Services and Member shall only be responsible for authenticating each Customer as and to the extent directed by Merchant in writing. Merchant shall be responsible for, and shall indemnify Allegiance Merchant Services and Member against, any losses that may result from: (a) errors in the authentication of a Customer or in the processing of Transactions that result from incorrect Customer information provided to Allegiance Merchant Services or Member; and
(b) inaccurate or incomplete authentication of a Customer that does not result from Allegiance Merchant Services or Member’s errors or omissions. Merchant grants Allegiance Merchant Services and Member and their designated agents access to and use of Customer information and such other data as is reasonably necessary for Allegiance Merchant Services and Member to perform their obligations under the Agreement. Merchant’s provision of such Customer information to Allegiance Merchant Services and Member will not breach any agreement to which Merchant is a party or violate Laws.

2. Transaction Risk. Allegiance Merchant Services and Member will attempt to collect from each Customer the payment-related information necessary for Allegiance Merchant Services and Member to process a payment Transaction from the Customer to Merchant in connection with the Biller Direct Services. Merchant acknowledges that Allegiance Merchant Services and Member are not responsible for incomplete or inaccurate payment information that may be provided by any Customer in connection with the Biller Direct Services. Merchant further acknowledges that additional Transaction verification and fraud prevention data elements and processes may be available through a particular Payment Network, including address verification, to reduce Transaction risk and that Allegiance Merchant Services and Member shall only be responsible for implementing any such Transaction risk controls as are specifically requested in writing by Merchant. The use of such Transaction risk controls does not constitute a guarantee of payment or prevent a Transaction from being disputed or subject to Chargeback. Regardless of any additional Transaction risk mitigation options elected by Merchant, Merchant shall remain responsible for monitoring Customer account activity for suspicious or fraudulent activity, as more fully described in Section (A)(22)(a)(iv) hereof.

cc. Transaction Controls. Merchant will notify Allegiance Merchant Services of any material change or anticipated material change in daily dollar activity or type of Transaction processing in connection with the Biller Direct Services, and Merchant will obtain Allegiance Merchant Services’s consent to any such change. Allegiance Merchant Services and Member are not responsible for any losses or expenses incurred by Allegiance Merchant Services, Member or Merchant arising out of any material change or anticipated material change in Transaction activity that is not promptly reported to Allegiance Merchant Services and Member by Merchant.

dd. Processing Limits. Allegiance Merchant Services or Member may impose a cap on the aggregate dollar amount or individual dollar amount of Transactions that it will process for Merchant as established by Allegiance Merchant Services or Member from time to time. This limit may be changed by Allegiance Merchant Services or Member, from time to time, in its sole discretion, without prior notice to Merchant. If Merchant exceeds the established limit, Allegiance Merchant Services may suspend the processing of Transactions in excess of the cap or may process Transactions in excess of the cap but hold the excess funds in a separate account or Reserve Account.

ee. Recurring Transactions. For recurring Transactions (e.g., recurring or preauthorized payment of insurance premiums or subscriptions), the Customer must consent to the initiation of the recurring charges using the Customer’s designated Payment Device. Recurring Transactions will not be processed by Allegiance Merchant Services after Allegiance Merchant Services receives: (i) a cancellation notice from the Customer provided through the Biller Direct Services interface; (ii) a notice from Merchant through the Biller Direct Services interface that authority to accept recurring Transactions has been revoked; or (iii) a response from the issuer of a Payment Device that the Payment Device is not to be honored. Merchant must immediately notify Allegiance Merchant Services if any Customer advises Merchant that the Customer wishes to revoke its recurring payments authorization by cancelling the recurring payment instruction through the Biller Direct Services interface. Any such notices described in this paragraph that are not fully processed through the Biller Direct Services interface prior to 5:00 p.m. Eastern time one (1) business day before the day a Transaction is scheduled to be processed will not affect such Transaction but will be effective for subsequent Transactions.

ff. Retrieval Requests and Chargebacks. Merchant is fully responsible for all Retrieval Requests and Chargebacks under the Payment Network Requirements in connection with Transactions processed using the Biller Direct Services. Upon receipt of a Retrieval Request or documentation related to a Chargeback from a Credit Card Association, an ECS Association or an EFT Network, as applicable, Allegiance Merchant Services and Member will forward such request or documentation to Merchant. Merchant is responsible for responding, as appropriate, to each Retrieval Request or Chargeback, including by retrieving a copy of the relevant Transaction Receipt from the Biller Direct Services interface. In addition, Merchant will cooperate with Allegiance Merchant Services and Member in complying with the Payment Network Requirements regarding Retrieval Requests and Chargebacks.

iii. Biller Direct Services; Fees; Other Amounts Owed; Taxes. Allegiance Merchant Services and Member will provide Merchant with the Biller Direct Services in accordance with the Agreement. Merchant will compensate Allegiance Merchant Services and Member for the Biller Direct Services as indicated on the Biller Direct Services Enrollment Form, and in any additional application and setup forms.

iv. Fraud Controls and Responsibility for Fraud. Allegiance Merchant Services may suspend processing of Transactions or decline to process one or more individual Transactions if, based upon fraud detection and prevention controls or other security or Transaction verification or validation procedures, Allegiance Merchant Services reasonably believes that such Transactions submitted to Allegiance Merchant Services are the result of fraud or error. Merchant agrees that Allegiance Merchant Services may, within its sole discretion, suspend the disbursement of funds related to any Transaction for any reasonable period of time required to investigate suspicious or unusual Transaction or deposit activity and that Allegiance Merchant Services and Member will have no liability for any losses Merchant may attribute to any suspension of funds disbursement. Notwithstanding the foregoing, Merchant shall be responsible for all fraudulent Transactions unless such fraud results from Allegiance Merchant Services’s failure to authenticate a purported Customer as required under the Agreement using information provided to Allegiance Merchant Services by Merchant under Section (A)(22)(a)(ii)(bb) hereof. Allegiance Merchant Services undertakes monitoring of certain Transactions on a systematic basis utilizing fraud and risk parameters in order to minimize Allegiance Merchant Services’s own financial exposure and such monitoring may result in a financial benefit for Merchant. Perpetrators of fraudulent Transactions may be referred to law enforcement officials.

v. Suspension of Biller Direct Services. Allegiance Merchant Services reserves the right to suspend Merchant’s or a Customer’s access to the Biller Direct Services or to temporarily restrict any use thereof, in whole or in part, if, in Allegiance Merchant Services’s sole judgment, there is a security, credit or legal risk that may interfere with the continued provision of such Biller Direct Services. Allegiance Merchant Services also reserves the right to permanently terminate a Customer’s access to the Biller Direct Services upon notice to Merchant if, in Allegiance Merchant Services’s reasonable discretion, such Customer is misusing the Biller Direct Services or is engaged in suspicious or possible illegal activity. Allegiance Merchant Services reserves the right to refuse any Transaction where Allegiance Merchant Services believes, in its reasonable discretion that the Transaction involves a material probability of fraud, credit, or legal risk. Merchant shall cooperate in resolving any claims or errors alleged by a Customer and in investigating any claims of fraud consistent with Laws and Payment Network Regulations.

vi. Amendments. Allegiance Merchant Services is entitled to pass through to Merchant any fee increases or new fees imposed upon Allegiance Merchant Services by any Payment Network and any other third party vendor used by Allegiance Merchant Services or Member to provide the Biller Direct Services.

b. Payment Card Services Provisions.

i. General Description. This Section sets forth additional terms and conditions of the Biller Direct Services applicable to the processing of Transactions conducted using Payment Cards, as more fully described below. Allegiance Merchant Services and Member will process Payment Card Transactions only if Merchant has elected Processing Services with respect to Payment Cards on the Biller Direct Services Enrollment Form, and in any additional application and setup forms, and subject to the terms and conditions set forth in Section (A)(22)(a) above and this Section (A)(22)(b).

ii. Authorization.

aa. Transaction Authorization. Allegiance Merchant Services will attempt to obtain an Authorization Code before completing a Transaction. Allegiance Merchant Services will only process Transactions that receive a positive Authorization.

bb. Effect. An Authorization Code does not: (i) guarantee Merchant final payment for a Transaction; (ii) guarantee that the Transaction will not be disputed later by the Cardholder as all Transactions are subject to Chargeback; or (iii) protect Merchant in the event of a Chargeback regarding unauthorized Transactions or disputes involving the quality of goods or services. Authorization Codes will not waive any provision of the Agreement or otherwise validate a fraudulent Transaction.

iii. Credits.

aa. Credit Transaction Receipt. If Merchant agrees to grant a Cardholder a refund of a Credit Card, Debit Card, or Prepaid Card Transaction processed by Allegiance Merchant Services and Member, Merchant must request a Credit Transaction Receipt through the Biller Direct Services interface and must issue the credit using the Credit Transaction Receipt. Merchant may not issue cash or a check as a refund for any previous Transactions processed on a Credit Card, Debit Card, or Prepaid Card. Allegiance Merchant Services and Member will debit the DDA for the total face amount of each Credit Transaction Receipt processed by Allegiance Merchant Services. Allegiance Merchant Services and Member will not process a Credit Transaction Receipt relating to any Transaction Receipt not originally processed by Allegiance Merchant Services, and Allegiance Merchant Services and Member will not process a Credit Transaction Receipt that exceeds the amount of the original Transaction Receipt.

iv. Interchange. Allegiance Merchant Services and Member bear no responsibility for the interchange category or pricing, including discount rate, fees and surcharges, applied by the Credit Card Associations, EFT Networks or otherwise owed by Merchant with respect to any Transaction processed using the Biller Direct Services, except to the extent that Merchant is obligated to pay greater Interchange with respect to a Transaction solely on account of Allegiance Merchant Services’s failure to comply with the Transaction processing requirements agreed to between Merchant and Allegiance Merchant Services.

c. Electronic Check and Automated Clearing House Services Provisions.

i. General Description. This Section sets forth additional terms and conditions of the Biller Direct Services applicable to processing of Transactions originated and presented for clearing and payment via the ACH Network in accordance with the ECS Rules, as more fully described below. Allegiance Merchant Services and Member will process ECS and ACH Transactions only if Merchant has elected ACH / ECS on the Biller Direct Services Enrollment Form, and in any additional application and setup forms. Processing of ECS and ACH Transactions shall be subject to the terms and conditions set forth in Section (A)(22)(a) above and this Section (A)(22)(c).

ii. Electronic Check and Automated Clearing House Services Generally. All costs and fees related to the Electronic Check and Automated Clearing House Services chosen by Merchant are as provided in the Merchant Application, except as otherwise provided in the Biller Direct Services Enrollment Form, and in any additional application and setup forms. The Customer must provide authorization to Allegiance Merchant Services prior to Allegiance Merchant Services initiating an ACH debit to the Customer’s account, in accordance with the ECS MOG. Allegiance Merchant Services will make a record of the Customer’s authorization for the ACH debit. Allegiance Merchant Services will either retain the original or a duplicate record of the Customer’s authorization for the period required by the applicable ECS Rules, and will make a copy of such record available to Merchant for a fee as indicated on the Biller Direct Services Enrollment Form, and in any additional application and setup forms.

iii. Additional Representations and Warranties. Merchant represents and warrants, with respect to all ECS and ACH Transactions accepted and processed by Allegiance Merchant Services and Member under the Agreement, that (i) for prearranged payment and deposit (PPD) entries or recurring debit entries, the Customer has duly authorized the debiting of the Customer’s account in writing in accordance with applicable law and ECS Rules, (ii) the business transaction represents an obligation of the Customer who is initiating the ECS or ACH Transaction, and (iii) the ECS or ACH Transaction is for amounts actually owed by Customer to Merchant (including tax) and does not involve any element of credit.

 

SECTION B – ELECTRONIC CHECK SERVICES

If Merchant has selected Electronic Check Services, Merchant shall be subject to this Section B in addition to the terms and conditions of Section A of this TOS. The terms and conditions for ECS are set forth in the Agreement and the ECS Merchant Operating Guide (the “ECS MOG”), incorporated herein and located at our website http://www.allegiancemerchantservices.com/resources/about-us/our-policies/terms-and-conditions/electronic-check-services-merchant-operating-guide/. In the course of its acceptance and use of ECS, Merchant represents, warrants and covenants the following:

1. Merchant shall comply with and be bound by (a) the ECS Rules, including the ACH Rules, the ECS MOG and the ECS Primer, and (b) Laws, including, but not limited to, the Check Clearing for the 21st Century Act and Regulation CC, Article 3 and Article 4 of the Uniform Commercial Code as in effect in the applicable state(s), the Electronic Fund Transfer Act and Regulation E, and the Fair Credit Reporting Act as amended by the Fair and Accurate Credit Transactions Act.

2. Merchant shall pay the fees for ECS as set forth in the Merchant Application, and in any additional application and setup forms.

3. In the event Merchant accepts for ECS certain types of Customer payments that are ineligible as specified in the ECS MOG for any reason, such Transaction is subject to Chargeback. Merchant may be liable for the face value of the Transaction and any actual damages related to or arising out of processing a Transaction that has been charged back.

4. Merchant shall cause a Check Reader/Imager to be readily available for use at all Merchant locations where Merchant will accept Paper Checks for ECS processing.

5. Merchant must use commercially reasonable procedures to verify the identity of each Customer that submits a payment.

6. Merchant shall be solely responsible for providing Customers with notifications and disclosures in connection with ECS, including, but not limited to, posting all point of sale signage and distributing all Customer takeaways and all notices and disclosures required to be provided under the ECS Rules and Laws.

7. Merchant may use the ECS only in connection with the presentment and acceptance of certain types of Customer payments in payment for goods or services sold by Merchant, or in payment for an obligation owed to Merchant, and only in compliance with the ECS Rules. Merchant shall be the sole user of the ECS, and Merchant may not resell or otherwise transfer any portion of ECS (or any associated information) in whole or in part to any other Person.

8. Merchant represents and warrants, with respect to all ECS Transactions submitted for processing by Allegiance Merchant Services, that (i) the Customer has duly authorized the debiting of the Customer’s account for the amount of the ECS Transaction in accordance with Laws and ECS Rules, (ii) the Transaction represents an obligation of the Person who is submitting a Customer payment, and (iii) the ECS Transaction is for merchandise actually sold or rented, for services actually rendered, or for the actual amount due and owing from the Customer to Merchant, in each case for the actual price of such merchandise or services (including tax) or for the actual amount due and owing to Merchant. Merchant represents and warrants that no portion of any ECS Transaction involves any element of Merchant’s extension of credit.

9. Merchant may not use ECS for merchandise returns or refunds, as ECS does not support this function. Merchandise returns or refunds must be handled outside ECS by direct negotiation between Merchant and the Customer.

10. Merchant is responsible to Allegiance Merchant Services for any Transaction charged back by Allegiance Merchant Services or its agent in accordance with the Agreement, including the ECS MOG, and for any fines, penalties or assessments incurred as a result of Merchant’s non-compliance with Laws or the ECS Rules. Merchant agrees to immediately pay to Allegiance Merchant Services or its agent (by means of debit or set-off initiated by Allegiance Merchant Services or its agent, submission of payment by Merchant, or otherwise, at the sole option of Allegiance Merchant Services), an amount equal to the amount of any ECS Transaction that is stopped, not settled, or charged back, as well as any related fees and charges.

11. Merchant must fully cooperate with all parties in the resolution of Customer disputes, as well as Chargebacks, returns, adjustments, representments, and errors in accordance with the ECS Rules and Laws.

12. Merchant is responsible for and will ensure that all information, including MICR data and payment amounts, are accurately captured from a Paper Check in accordance with the applicable ECS Rules, and that all such information is accurately reflected in the related Item Merchant sends to Allegiance Merchant Services for processing through ECS. Merchant will not submit for clearing or settlement any physical Paper Check unless and until Allegiance Merchant Services and Member have processed and settled a Chargeback to Merchant with respect to any Items created from such Paper Check.

13. Merchant will not disclose to third parties any information related to ECS Transactions including, but not limited to, Customer DDA information, driver’s license number, telephone number, or social security number except as specified in the Agreement, including the ECS MOG. Merchant shall keep all such information confidential and secure, in accordance with the Agreement and Laws.

14. Merchant does not have the right to use ECS data for any purpose other than to support the ECS itself.

15. Merchant must treat all ECS documents, including, but not limited to, the Agreement, including the ECS Rules, the ECS MOG and ECS collateral material or related guides, as confidential and proprietary information and must protect it with the same degree of care as Merchant would protect its own confidential and proprietary information and as further specified in the Agreement.

16. Merchant’s Agreement and use of the ECS may be terminated immediately by Allegiance Merchant Services for failure to comply with the terms of the TOS, the Agreement or Laws.

 

SECTION C – TOKENIZATION SERVICES

If Merchant has selected Tokenization Services, Merchant shall be subject to this Section C in addition to the terms and conditions of Section A of this TOS. The terms and conditions for Tokenization Services are set forth in the Agreement and the MOG, incorporated herein. In the course of its acceptance and use of the Tokenization Services, Merchant hereby agrees to the following terms and conditions governing the Tokenization Services:

1. For the payment of fees for the Tokenization Services, Allegiance Merchant Services shall provide Tokenization Services to Merchant, which shall consist of a tokenization feature pursuant to which Allegiance Merchant Services will provide Merchant with randomized numerical tokens (each a “Token”) in substitution for Credit Card and Debit Card account numbers (each such number, a “Card Account Number”; such services, the “Tokenization Services”). More specifically, under the Tokenization Services, when a Card Account Number associated with a Transaction is transmitted from Merchant to Allegiance Merchant Services, Allegiance Merchant Services will:
a. generate a Token;
b. associate the Token with the Card Account Number; and
c. send the Token, instead of Card Account Number, back to Merchant in the Transaction authorization response message.

2. The Card Account Number associated with each Token under the Tokenization Services will be available to Merchant until three (3) years after the expiration or termination of the Agreement (the “Token Validity Period”). During the Token Validity Period, the Token, rather than the associated Card Account Number, may be submitted by Merchant to Allegiance Merchant Services to process additional Transactions to the Credit Card or Debit Card associated with such Token across all Merchant locations. Merchant acknowledges that the Tokens will be formatted in Allegiance Merchant Services’s reasonable discretion and may not be compatible with other Merchant systems, equipment, communications devices, databases and/or services.

3. Merchant shall cause the appropriate hardware, including POS Devices and any hardware provided by or on behalf of Allegiance Merchant Services from time to time, to be readily available for use at all Merchant locations that are the recipients or users of the Tokenization Services (the “Hardware”).

4. Merchant acknowledges that Allegiance Merchant Services does not store Credit Card or Debit Card expiration dates. In order to use a Token to process a Transaction, Merchant must provide the Token (in lieu of a Card Account Number) together with the expiration date for the original Credit Card or Debit Card.

5. Merchant may request a reversal of the Tokenization process as follows:
a. To reverse the Tokenization process on an individual Token basis, Merchant may access an Allegiance Merchant Services web portal and, with appropriate authentication credentials, retrieve the Card Account Number associated with any Token.
b. To reverse the Tokenization process on a bulk basis (i.e., in excess of 100 Tokens at a time), an officer of Merchant must make a request in writing to Allegiance Merchant Services and provide Allegiance Merchant Services with the Tokens for which Merchant wishes to reverse the Tokenization process. Allegiance Merchant Services will provide Merchant with an encrypted file containing the Card Account Numbers associated with such Tokens within thirty (30) days of receiving the request.

6. DISCLAIMER OF WARRANTIES. WITH RESPECT TO THE TOKENIZATION SERVICES, THE HARDWARE, AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE TOKENIZATION SERVICES, HARDWARE AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY, PROVIDED TO MERCHANT ARE PROVIDED “AS IS”. MERCHANT ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING ON ANY STATEMENT, PROMISE, OR REPRESENTATION, EITHER ORAL OR WRITTEN, MADE BY OFFICERS, SALES PERSONNEL, OR AGENTS OF ALLEGIANCE MERCHANT SERVICES OR MEMBER, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, INCLUDING THIS SECTION C, WHICH WOULD SUPPLEMENT, EXPLAIN, INTERPRET, MODIFY OR EXPAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THIS SECTION C, OR ANY SALES LITERATURE OR WRITTEN PROPOSALS. MERCHANT ACKNOWLEDGES AND UNDERSTANDS THAT NO EXPRESS WARRANTY WITH RESPECT TO THE TOKENIZATION SERVICES, THE HARDWARE AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY, IS CONTAINED OR CREATED IN ANY ORAL STATEMENT OR IN ANY WRITING OTHER THAN THE EXPRESS WRITTEN PROVISIONS OF THIS SECTION C.

7. LIABILITY. Except as otherwise expressly provided herein, in no event shall Allegiance Merchant Services be liable hereunder for (a) any loss of profits or other economic loss of whatever nature, or any indirect, special, consequential, incidental or other similar damages arising out of any claim of whatever nature relating to the Tokenization Services provided pursuant to this Agreement or to any obligations, acts, events, or occurrences pursuant to, preliminary to or incidental to the Tokenization Services provided pursuant to this Agreement, or (b) any liabilities of Merchant to third parties resulting from any failure of Allegiance Merchant Services, any Hardware or any software, documentation or other related materials (whether provided by Allegiance Merchant Services or a third party) to perform as required under the terms of this Section C to the Agreement. In no event shall Allegiance Merchant Services’s licensors, contractors, service providers or third party beneficiaries have any indemnification obligations or be liable pursuant to this Section C for any damages, including, without limitation, any indirect, special, consequential, incidental or other similar damages arising out of any claim of whatever nature relating to the Tokenization Services provided pursuant to this Agreement or to any obligations, acts, events, or occurrences pursuant to, preliminary to or incidental to the Tokenization Services provided pursuant to this Agreement.

 

SECTION D – FANFARE SERVICES

If Merchant has selected Fanfare Services, Merchant shall be subject to, and shall comply with, this Section D in addition to the terms and conditions of Section A of this TOS. The terms and conditions for Fanfare Services are set forth in the Agreement and the MOG, incorporated herein. In the course of its acceptance and use of the Fanfare Services, Merchant hereby agrees to the following terms and conditions governing the Fanfare Services:

1. GENERAL PROVISIONS

a. Allegiance Merchant Services will host and make available to Merchant the Fanfare Web Portal.

b. Merchant must use Supported Hardware in order to make full use of the Fanfare Services, and certain or all Fanfare Services may be unavailable or may function improperly if Merchant does not use them in connection with Supported Hardware. Merchant may obtain a current list of Supported Hardware from Allegiance Merchant Services upon request, which Allegiance Merchant Services may update from time to time. Allegiance Merchant Services shall have no responsibility or liability in connection with the performance or non-performance of the Fanfare Services, including in connection with any errors or malfunctions that may occur in connection with the Fanfare Services, if Merchant uses the Fanfare Services with any POS Devices that are not Supported Hardware.

c. Merchant shall not acquire any intellectual property rights and/or any goodwill, know-how or any other proprietary rights in any form whatsoever or howsoever in the Fanfare Platform or the Fanfare Services. Any and all intellectual property rights in and to the Fanfare Platform or the Fanfare Services, and related goodwill, know-how and other proprietary rights are and shall remain the absolute exclusive property of Allegiance Merchant Services and/or its licensors.
d. Merchant will (i) cooperate with Allegiance Merchant Services in connection with the Fanfare Services, and (ii) provide Allegiance Merchant Services with reasonably requested information and access (which may be remote access) to equipment and to Merchant’s personnel for purposes of facilitating setup of POS Devices for use in connection with the Fanfare Services.

e. Merchant shall use all reasonable means to prevent any unauthorized access to or use of the Fanfare Platform and the Fanfare Services, and if such access or use occurs, Merchant shall notify Allegiance Merchant Services immediately.

f. Merchant acknowledges and agrees that it is Merchant’s sole responsibility to comply with all Laws related to its use of the Fanfare Services and all Laws governing its relationships with Customers and use of any Customer Data in connection with the Fanfare Services, including (i) the collection, storage and use of Customer Data for promotional or marketing purposes (including the compliance of any such storage or use with Merchant’s applicable privacy policies and terms and conditions), (ii) the distribution (including by e-mail or short message service (SMS)) of marketing or promotional materials to Customers (including through any use of communication or marketing services made available to Merchant through the Fanfare Platform), and (iii) the issuance, sale, distribution, use and acceptance of gift cards, gift certificates, Stored Value Cards or Prepaid Cards that may be applicable to Fanfare Gift Cards (including all laws related to purchase, service and dormancy fees, Laws relating to expiration dates, Laws governing the treatment of unused or unclaimed funds or other property and Laws related to money transmission). Further, Merchant agrees to comply in a timely manner with any such Laws.

g. Merchant acknowledges and agrees that Allegiance Merchant Services has no responsibility for recording or storing any Customer Data or information related to the sale of any Fanfare Gift Card until such information has been received and validated by Allegiance Merchant Services.

h. Merchant understands and agrees that its data security obligations under the Agreement apply to any Customer Data it collects or receives in connection with the Fanfare Services, and Merchant agrees to comply with such data security obligations with respect to all Customer Data Merchant may collect, access or receive in connection with the Fanfare Services.

i. Merchant will exclusively use Allegiance Merchant Services (including Allegiance Merchant Services-designated service providers) for services similar to the Fanfare Services, and Merchant will not receive services similar to the Fanfare Services from any third parties not approved by Allegiance Merchant Services in writing.

j. Merchant or Allegiance Merchant Services may terminate the Fanfare Services for any of the reasons that Allegiance Merchant Services or Merchant, as applicable, may terminate the Agreement.

k. DISCLAIMER OF WARRANTIES. MERCHANT UNDERSTANDS AND AGREES THAT THE FANFARE PLATFORM AND THE FANFARE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ALLEGIANCE MERCHANT SERVICES DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE FANFARE PLATFORM OR FANFARE SERVICES WILL COMPLY WITH ANY APPLICABLE LAWS GOVERNING THE COLLECTION OF CUSTOMER INFORMATION, THE USE OF CUSTOMER INFORMATION FOR MARKETING OR PROMOTIONAL PURPOSES, OR THE ISSUANCE, SALE DISTRIBUTION, USE OR ACCEPTANCE OF ANY FANFARE GIFT CARD. ALLEGIANCE MERCHANT SERVICES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO MERCHANT’S COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM MERCHANT’S ACCESS TO OR USE OF THE FANFARE PLATFORM OR THE FANFARE SERVICES. ALLEGIANCE MERCHANT SERVICES MAKES NO WARRANTY THAT THE FANFARE PLATFORM OR THE FANFARE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ALLEGIANCE MERCHANT SERVICES OR THROUGH THE FANFARE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. ALLEGIANCE MERCHANT SERVICES IS NOT RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR USE OF ANY PROMOTIONAL OFFER, REWARDS VALUE, OTHER FANFARE LOYALTY PROGRAM OFFER, OR ANY FANFARE GIFT CARD. FURTHER, ALLEGIANCE MERCHANT SERVICES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OR PROFITABILITY FOR MERCHANT OF ANY (I) OFFER, PROMOTION OR REWARD ADOPTED BY MERCHANT IN CONNECTION WITH ITS FANFARE LOYALTY PROGRAM, OR (II) FANFARE GIFT CARD ARRANGEMENT OR SOLUTION ADOPTED BY MERCHANT IN CONNECTION WITH ITS FANFARE GIFT CARD PROGRAM, IN EACH CASE EVEN IF ALLEGIANCE MERCHANT SERVICES PROMOTES SUCH A SOLUTION AS COMMON OR HISTORICALLY SUCCESSFUL IN MERCHANT’S INDUSTRY OR MARKET.

l. LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALLEGIANCE MERCHANT SERVICES AND EACH OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM MERCHANT’S ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE FANFARE PLATFORM OR THE FANFARE SERVICES, OR RESULTING FROM MERCHANT’S PROVISION OF PROMOTIONS, OFFERS, REWARDS OR FANFARE GIFT CARDS TO CUSTOMERS IN CONNECTION WITH THE FANFARE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT ALLEGIANCE MERCHANT SERVICES HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR ANY TERMINATION OF THE AGREEMENT FOR ANY REASON WHATSOEVER AND EACH OF THE PROVISIONS OF THIS SECTION SHALL OPERATE SEPARATELY IN ITSELF AND SURVIVE INDEPENDENTLY OF OTHERS.

m. All Merchant locations, including chain locations, will be boarded on Allegiance Merchant Services’s system pursuant to the paperwork submitted by Merchant to Allegiance Merchant Services. However, in the event of an error or omission of fees payable by Merchant on the submitted paperwork, the setup fees and other monthly fees applied to the locations during the initial set up or subsequent negotiations will be applied to such locations.

n. In the event that a particular location closes or changes its Merchant Identification Number (MID), Merchant agrees that Allegiance Merchant Services may bill the Primary Fanfare Merchant for any fees associated with subsequent transactions processed on Fanfare Gift Cards activated by the closed MID. This would apply to any system generated transactions including, but not limited to, deduction and points conversion transactions. Monthly fees billed for Fanfare Services provided with respect to the closed location may also be billed to the Primary Fanfare Merchant.

o. Fanfare Services are not available to Merchants located in Canada or Puerto Rico.

2. FANFARE LOYALTY SERVICES PROVISIONS

a. Allegiance Merchant Services will host the Fanfare Loyalty Website.

b. Merchant acknowledges that, to enroll in the Fanfare Loyalty Program and receive promotional offers and/or rewards, a Customer must enroll with Merchant during a point-of-sale transaction at Merchant or by visiting Merchant’s Fanfare Loyalty Program Website, in each case in accordance with the Customer enrollment procedures described in the MOG.

c. Merchant is responsible for creating (i) a set of terms and conditions governing its Fanfare Loyalty Program, and (ii) a privacy policy addressing Merchant’s collection and usage of Customer Data. Allegiance Merchant Services will post (which may be by cross-reference link) Merchant’s terms and conditions and privacy policy, on Merchant’s behalf, on the Fanfare Loyalty Website hosted by Allegiance Merchant Services. Allegiance Merchant Services will provide Merchant with Model Documents that Merchant may adapt and use to govern its Customers’ participation in the Fanfare Loyalty Program. Allegiance Merchant Services makes no warranties with respect to the legality or legal sufficiency of the Model Documents. In addition, Merchant acknowledges that it has sole responsibility for ensuring compliance with all applicable Laws and any pre-existing commitments or obligations of Merchant to Customers in connection with (i) Merchant’s use of the Model Documents; (ii) the content of the Model Documents, and (iii) any adaptations that Merchant may make to the Model Documents in developing its own Customer-facing terms and conditions and privacy policy regarding the Fanfare Loyalty Program. Merchant acknowledges that Allegiance Merchant Services will not review Merchant’s privacy policy or terms and conditions governing its Fanfare Loyalty Program for any purpose, including specifically for purposes of assessing the legality or legal sufficiency of such disclosures, regardless of whether Merchant uses the Model Documents, in whole or in part. Merchant represents, warrants and covenants to Allegiance Merchant Services that the Customer terms and conditions and privacy policy governing Merchant’s Fanfare Loyalty Program will (i) establish sufficient rights for Merchant and Allegiance Merchant Services to exercise all rights and perform all obligations contemplated under the Agreement, including the MOG, (ii) prevent Merchant from sharing Customer Data with any third party, affiliated or unaffiliated, except as permitted by applicable Law and (iii) not be inconsistent with any provision included in the Model Documents provided by Allegiance Merchant Services unless Allegiance Merchant Services has granted its prior written consent to any such inconsistency. Merchant must notify Allegiance Merchant Services, in writing prior to the launch of Merchant’s Fanfare Loyalty Program, of the Customer-facing terms and conditions and privacy policy Merchant wishes Allegiance Merchant Services to post (by cross-reference link) to Merchant’s Fanfare Loyalty Website. If Merchant does not so notify Allegiance Merchant Services of modified or different Customer-facing terms and conditions and/or privacy policy that should govern Merchant’s Fanfare Loyalty Program prior to the launch of Merchant’s Fanfare Loyalty Program, Merchant will be deemed to have instructed Allegiance Merchant Services to post the Model Documents, in the form provided by Allegiance Merchant Services to Merchant, as Merchant’s Customer-facing terms and conditions and privacy policy. Merchant agrees that it has fully reviewed and approved, as appropriate for Merchant and its Customers, the Model Documents Allegiance Merchant Services posts to Merchant’s Fanfare Loyalty Website.

d. Merchant represents and warrants that it will only use Customer Data in accordance with its Fanfare Loyalty Program privacy policy and terms and conditions. In addition, Merchant shall obtain for the benefit of Allegiance Merchant Services and its licensor(s) any necessary consents, approvals or notifications required for Allegiance Merchant Services or its licensor(s) to use any Customer Data for the purpose of providing Customers with services related to the Fanfare Loyalty Program. Merchant understands that Allegiance Merchant Services will have the authority to use and share Customer Data as described in the Allegiance Merchant Services Fanfare Privacy Policy available at www.allegiancemerchantservices.com.

e. Merchant understands and agrees that Allegiance Merchant Services may use the Fanfare Loyalty Website for purposes of obtaining Customer consent to use Customer Data in accordance with the Allegiance Merchant Services Fanfare Privacy Policy. Merchant further agrees that Allegiance Merchant Services may use Customer Data for any of the purposes permissible under the Allegiance Merchant Services Fanfare Privacy Policy.

f. Merchant agrees that it will not share Customer Data with any third parties, including any Merchant affiliates, without Allegiance Merchant Services’s prior written consent.

g. Merchant agrees that it will not collect or receive Customer Data from any source other than directly from the Customer (including as a result of any Customer transactions at Merchant) or Allegiance Merchant Services, and Merchant agrees that it shall not supplement or enhance any Customer Data collected in connection with the Fanfare Loyalty Program with any data or information from sources other than the Customer or Allegiance Merchant Services.

3. FANFARE GIFT CARD SERVICES PROVISIONS

a. Merchant agrees that all Fanfare Gift Cards will be printed by Allegiance Merchant Services or an Allegiance Merchant Services-approved vendor.

b. Merchant agrees to comply with the Graphic Specifications and Procedures provided by Allegiance Merchant Services, as the same may be updated by Allegiance Merchant Services in its sole discretion from time to time.

c. Merchant authorizes Allegiance Merchant Services to initiate credit and debit entries among Merchant’s individual chain locations for any Transactions that change the balance of a Fanfare Gift Card. In the event Allegiance Merchant Services is unable to accomplish a credit or debit entry to reflect the effect of a Transaction, Merchant further authorizes Allegiance Merchant Services to credit and/or debit the designated Master Account or Primary Fanfare Merchant. Merchant also understands that Allegiance Merchant Services may, in its sole discretion, offset any debits against the related credit Transactions of the applicable chain or Merchant location. Both Merchant and the individual chain locations agree to pay related direct settlement fees.

 

SECTION E – AMERICAN EXPRESS OPTBLUE PROGRAM

If Merchant has elected to accept American Express Payment Devices through the OptBlue Program, Merchant shall be subject to, and shall comply with, this Section E in addition to the terms and conditions of Section A of the TOS, the MOG, and the OptBlue Operating Guide, which are incorporated herein. In the course of its acceptance of American Express Payment Devices, Merchant hereby agrees to the following terms and conditions:

1. GENERAL PROVISIONS

a. Relationship to Remainder of Agreement. Except as set forth herein, the terms of this Section E supplement, rather than displace, the terms of the remainder of the Agreement. To the extent there is any direct conflict between the terms of this Section E and the MOG or TOS, the terms of this Section E shall govern solely with respect to the Merchant’s acceptance of American Express Payment Devices and solely to the extent necessary to resolve the conflict. For the avoidance of doubt, in the event that compliance with this Section E would cause you to violate the OptBlue Operating Guide and/or Laws, you should comply with the OptBlue Operating Guide and/or Laws.

b. Glossary

i. Advance Payment Charge: A Charge for which full payment is made in advance of Merchant providing the goods and/or rendering the services to the Cardholder.
ii. Affiliate: Any Entity that controls, is controlled by, or is under common control with either party, including its subsidiaries. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an Entity, whether through ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, but not by way of limitation, the direct or indirect ownership of more than 50% of (i) the voting securities or (ii) an interest in the assets, profits, or earnings of an Entity shall be deemed to constitute “control” of the Entity.
iii. Agency: Any Entity or line of business that uses Merchant’s Marks or holds itself out to the public as a member of Merchant’s group of companies.
iv. Aggregated Charge: A Charge that combines multiple small purchases or refunds (or both) incurred on a Card into a single, larger Charge before submitting the Charge for payment.
v. American Express Payment Device: (i) Any Card, account access device, or Payment Device or service bearing American Express or American Express Affiliate’s Mark and issued by an Issuer or (ii) a Card Number.
vi. American Express Brand: The American Express name, trademarks, service marks, logos, and other proprietary designs and designations and the imagery owned by American Express or an American Express Affiliate and the goodwill associated with all of the foregoing and with all the goods and services now and in the future provided, marketed, offered, or promoted by American Express or an American Express Affiliate.
vii. Card Number: The unique identifying number that the Issuer assigns to an American Express payment Device when it is issued.
viii. Charge: A payment or purchase made on an American Express Payment Device.
ix. Credit: The amount of the Charge that you refund to Cardholders for purchases or payments made on American Express Payment Devices.
x. Customer Activated Terminals (CATs): An unattended POS Device(e.g., gasoline pump, vending machine, check-out kiosk).
xi. Disputed Charge: A Charge about which a claim, complaint, or question has been brought.
xii. Entity: A corporation, partnership, sole proprietorship, trust, association, or any other legally recognized entity or organization.
xiii. Establishment: Any or all of a Merchant’s locations, outlets, websites, online networks, and all other methods for selling goods and services, including methods that the Merchant adopts in the future.
xiv. Expiration Date: The month and year on which a Payment Device expires (sometimes referred to as “valid thru” or “active thru” date).
xv. Fraud Full Recourse Program: one of American Express’ Chargeback programs.
xvi. Internet Electronic Delivery: The delivery of goods or services purchased on the internet via an internet download or another file transfer process (e.g., images or software download).
xvii. Marks: The names, logos, service marks, trademarks, trade names, taglines, or other proprietary designs or designations.
xviii. OptBlue Program: The program pursuant to which a Merchant is permitted to accept Transactions initiated with American Express Payment Devices through Allegiance Merchant Services.
xix. OptBlue Operating Guide: The Merchant Operating Guide published by American Express containing the rules and regulations of American Express applicable to the OptBlue Program, together with all technical specifications, documentation, and other policies or procedures incorporated therein and currently located at http://www.americanexpress.com/merchantopguide. For all purposes of this Agreement, the OptBlue Merchant Operating Guide is considered to be part of the Credit Card Rules.
xx. Oil Fraud Protection Program: American Express’ program providing Establishments in the oil/petroleum industry protection from counterfeit fraud Chargebacks, provided both the Establishment and Charge meet certain criteria.
xxi. Partial Immediate Chargeback Program: One of American Express’ Chargeback programs.
xxii. Pre-Authorization: An Authorization request that Merchant submits in advance of providing the goods or services, allowing them to submit the Approved Charge (e.g., fuel pump CATs).
xxiii. Recurring Billing Charges: An option offered to Cardholders to make recurring Charges automatically on their American Express Payment Device (e.g., membership fees to health clubs, magazine subscriptions, and insurance premiums).
xxiv. Submission: The collection of Transaction Data sent to American Express.
xxv. Telecommunications: The communication services, including personal communication services; cellular, paging, long distance, etc.

c. Assignment. Merchant shall not assign to any third party any payments due to it pursuant to this Agreement, and all indebtedness arising from Transactions will be for bona fide sales of goods and services (or both), free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future Transaction receivables to Allegiance Merchant Services or Member without consent of American Express.

d. Payment Device Parity. Merchant’s policies for accepting American Express Payment Devices, including but not limited to its refund policies, must be at least as favorable as its policies for accepting any other Payment Devices. Where Merchant displays signage representing or promoting its acceptance of any Payment Device, Merchant must display American Express signage with equal representation and visibility to the signage of other Payment Devices.

e. Establishment Closing. If a Merchant closes any of its Establishments, Merchant must follow these guidelines:
i. Notify Allegiance Merchant Services immediately;
ii. If Merchant is not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the Transaction Receipt and on websites and catalogs); and
iii. For Advance Payment Charges or Delayed Delivery Charges, delivery of the goods or services which have already charged to the Cardholder is required or Credit must be issued for any portion of the Charge for the goods or services not delivered.

f. Chargebacks. Any Transaction not in compliance with the requirements of this chapter may be subject to Chargeback. Further, American Express may, at its sole discretion, place Merchant in any of American Express’ Chargeback programs at any time, which will result in Chargebacks occurring automatically for certain Transactions. If Allegiance Merchant Services is notified that Merchant has been placed in a Chargeback program, Allegiance Merchant Services will communicate that information to Merchant.
i. Immediate Chargeback Program. American Express may Chargeback a Charge without first sending a Retrieval Request any time a Cardmember disputes a Charge for any reason other than actual or alleged fraud. Without limiting American Express’s discretion to place any Merchant in a Chargeback program, Merchant may be placed in this program for any one of the following reasons:

  • Merchant chooses to enroll in this program;
  • American Express determines that the Merchant has submitted a disproportionate number of Disputed Charges or has been subject to a disproportionate number of Chargebacks.
  • American Express determines that the Merchant’s industry has had historically high occurrences of Disputed Charges.

ii. Partial Immediate Chargeback Program. American Express may Chargeback any Charge below a predetermined amount without first sending a Retrieval Request any time a Cardmember disputes a Charge for any reason other than actual or alleged fraud. All disputed amounts above the predetermined amount will be processed under American Express’ standard Retrieval Request and Chargeback policy. Without limiting American Express’s discretion to place any Merchant in a Chargeback program, Merchant may be placed in this program for any one of the following reasons:

  • Merchant chooses to enroll in this program to avoid receiving Retrieval Requests below a specific dollar amount.
  • American Express determines that the Merchant’s industry has had historically high occurrences of Disputed Charges.

iii. Fraud Full Recourse Program. American Express may Chargeback without first sending a Retrieval Request anytime a Cardmember disputes a Charge based on actual or alleged fraud. Without limiting American Express’s discretion to place any Merchant in a Chargeback program, Merchant may be placed in this program for any one of the following reasons:

  • American Express receives a disproportionately high number of Disputed Charges relative to Merchant’s prior history or industry standards.
  • Merchant engages or participates in illegal, fraudulent, deceptive, unfair or abusive business practices, illegal activities, or prohibited uses of American Express Payment Devices.

g. Disputed Charges. If Merchant submits disproportionate amounts or numbers of Disputed Charges, Merchant may be placed in a Chargeback program or Merchant’s acceptance of American Express Payment Devices may be limited or terminated.

2. ACCEPTANCE.

a. American Express Payment Device Acceptance. Merchant must accept American Express Payment Devices as payment for goods and services (other than those goods and services prohibited under this Agreement) sold, or (if applicable) for charitable contributions made, at all of its Establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant’s Establishments under the Agreement.

b. Treatment of the American Express Brand. Except as expressly permitted by Applicable Law, Merchant must not:

  • indicate or imply that it prefers, directly or indirectly, any other Payment Device over American Express Payment Devices,
  • try to dissuade Cardholders from using American Express Payment Devices,
  • criticize or mischaracterize American Express Payment Devices or any of American Express’ services or programs,
  • try to persuade or prompt Cardholders to use any other Payment Device or any other method of payment (e.g., payment by check),
  • impose any restrictions, conditions, disadvantages or fees when American Express Payment Devices are accepted that are not imposed equally on all other Payment Devices, except for electronic funds transfer, or cash and check,
  • suggest or require Cardholders to waive their right to dispute any American Express Transaction,
  • engage in activities that harm American Express’s business or the American Express Brand (or both),
  • promote any other Payment Devices (except Merchant’s own private label card that Merchant issues for use solely at Merchant’s Establishments) more actively than Merchant promotes American Express Payment Devices, or
  • convert the currency of the original sale Transaction to another currency when requesting Authorization or submitting Transactions (or both).
    Merchant may offer discounts or in-kind incentives from Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by applicable Laws): (i) Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentive to Merchant’s customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in this Section E(2)(b), “Treatment of the American Express Brand”.

c. Treatment of American Express Marks. Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchant’s acceptance of American Express Payment Devices and display American Express Marks (including any American Express Payment Device application forms provided to Merchant) as prominently and in the same manner as any other Payment Devices. Merchant must not use the American Express Marks in any way that injures or diminishes the goodwill associated with the Mark, nor (without prior written consent from Allegiance Merchant Services) indicate that American Express endorses Merchant’s goods or services. Merchant shall only use the American Express Marks as permitted by the Agreement and shall cease using American Express’s Marks upon termination of the Agreement.
For additional guidelines on the use of the American Express Marks, contact Allegiance Merchant Services.

d. Prohibited Uses of American Express Payment Devices. Merchant must not accept American Express Payment Devices for any of the following:

  • adult digital content sold via Internet Electronic Delivery,
  • amounts that do not represent bona fide sales of goods or services (or, if applicable, amounts that do not represent bona fide charitable contributions made) at Merchant’s Establishments; for example, purchases at Merchant’s Establishments by Merchant’s owners (or their family members) or employees contrived for cash flow purposes, or payments that Merchant have accepted in order to advance cash to Cardholders in connection with the Transaction,
  • amounts that do not represent bona fide, direct sales by Merchant’s Establishment to Cardholders made in the ordinary course of Merchant’s business,
  • cash or cash equivalent; for example, purchases of gold, silver, platinum and palladium bullion and/or bars (collectible coins and jewelry are not prohibited), or virtual currencies that can be exchanged for real currency (loyalty program currencies are not prohibited),
  • charges that the Cardholder has not specifically approved,
  • costs or fees over the normal price of the goods or services (plus applicable taxes) that the Cardholders has not specifically approved,
  • damages, losses, penalties, or fines of any kind,
  • gambling services (including online gambling), gambling chips, gambling credits, or lottery tickets,
  • unlawful/illegal activities, fraudulent business transactions or when providing the goods or services is unlawful/illegal (e.g. unlawful/illegal online internet sales of prescription medications or controlled substances; sales of any goods that infringe the rights of a Rights- holder under laws applicable to American Express, Merchant, or the Cardholders),
  • overdue amounts or amounts covering returned, previously dishonored or stop-payment checks (e.g., where American Express Payment Devices are used as a payment of last resort),
  • amounts that represent repayment of a cash advance including, but not limited to, payday loans, pawn loans or payday advances,
  • sales made by third parties or Entities conducting business in industries other than Merchant’s, or
  • other items of which American Express or Allegiance Merchant Services notifies Merchant.
    Merchant must not use American Express Payment Devices to verify a customer’s age.

Treatment of Cardholder Data. Any and all Cardholder Data is confidential and the sole property of the Issuer, American Express or its Affiliates. Except as otherwise specified, Merchant must not disclose Cardholder Data, nor use nor store it, other than to facilitate Transactions at Merchant’s Establishments in accordance with the Merchant Agreement.

3. TRANSACTION PROCESSING

a. Completing a Transaction at the Point of Sale. To accept American Express Payment Devices for Charges at Merchant’s Establishments, at the point of sale, Merchant must:

  • clearly and conspicuously, disclose all material terms of sale prior to obtaining an Authorization, and
  • clearly and conspicuously inform the Cardholder at all points of interaction (e.g., sales conducted in person, over the internet, mobile or via mail or telephone order) what Entity is making the sales offer, so that the Cardholder can clearly distinguish Merchant from any other party involved in the interaction (e.g., a vendor of goods or provider of services Merchant may engage, or another Merchant seeking to conduct business with the Cardholder).

b. Contact Chip Charges. When presented with a Chip Card to be inserted into a Chip Card reader, Merchant must:

i. Verify that the Card is not visibly altered or mutilated;
ii. Verify that the customer is the Cardholder;*
iii. Capture Chip Card Data by inserting the Chip Card into the Chip Card reader;
iv. The POS Device will advise the Cardholder to enter the PIN (a Chip and PIN Charge) or sign for the Charge (a Chip and signature Charge);
Chip and PIN Charges: the Cardholder will enter the PIN into the POS Device using the keypad. If the Chip and PIN Charge is unable to be completed due to a technical problem, the POS Device will show an error message.

  • Chip and signature Charge: Obtain the Cardholder’s signature on the Transaction Receipt and compare the signature on the Transaction Receipt to the name and signature on the American Express Payment Device. Obtaining a signature may not be required if Merchant’s Establishment and the Charge qualify for the No Signature Program.

v. Obtain an Approval Code,
vi. Verify the Expiration Date on the American Express Payment Device,
vii. Match the Card Number and the Expiration Date on the American Express Payment Device to the same information on the Transaction Receipt, and
viii. Ensure the name that prints on the Transaction Receipt matches the name on the front of the American Express Payment Device.*
* Except when the Cardholder name is not captured on the Transaction Receipt or for Prepaid Cards that do not show a name on their face.

c. Mobile Contactless Charges. A mobile contactless Transaction is a Transaction initiated through a contactless-enabled mobile phone at a contactless-enabled POS Device. These mobile phones contain a payment application which can initiate a contactless Transaction when the phone is waved in close proximity to a contactless-enabled POS Device. Merchant must be approved by Allegiance Merchant Services to accept mobile contactless Transactions.
When presented with a contactless-enabled mobile phone, Merchant must:

i. Capture Magnetic Stripe or Chip Card data by waving the contactless-enabled mobile phone in close proximity to the contactless reader,
ii. Obtain an Approval Code,
iii. Obtain the Cardholder’s signature (excluding Charges at CATs), unless the Charge qualifies for the No Signature Required Program,
iv. Compare the signature (when obtained) on the Transaction Receipt with the signature on the companion physical American Express Payment Device or a valid form of formal identification (e.g. driver’s license). Merchant must not record or store the information from such formal identification in any way.

d. Customer Activated Terminals. Charges for purchases at Merchant’s Customer Activated Terminals (CATs) must meet the requirements for Transaction Receipts in the MOG as well as comply with all Payment Network Regulations and specifications. Without limiting the foregoing, Merchant must include:

  • Full Magnetic Stripe data stream or Chip Card Data in all Authorization requests, and
  • CAT indicator on all Authorization requests and Submissions.

American Express will not be liable for actual or alleged fraudulent Charges occurring through Customer Activated Terminals. Such Charges may be subject to Chargeback.

e. Processing a Credit. In addition to the procedures set forth in Chapter 2 of the MOG, follow these steps to issue a Credit:

i. Create a Credit Transaction Receipt.
ii. Compare the last four digits on the Transaction Receipt against the American Express Payment Device presented (when applicable).
iii. Have the Cardholder sign the Credit Transaction Receipt (when applicable).
iv. Provide a copy of the Credit Transaction Receipt to the Cardholder.

Merchant must submit all Credits under the Establishment where the Credit originated.

A Credit must be issued in the currency in which the original Charge was submitted. Merchant must issue Credits to the American Express Payment Device used to make the original purchase; however, if the Credit is for the return of a gift by someone other than the Cardholder who made the original purchase, apply Merchant’s usual refund policy.

If the Cardholder indicates that the American Express Payment Device on which the purchase was originally made is no longer active or available, do the following:

  • For all American Express Payment Devices except Prepaid Cards, advise the Cardholder that Merchant must issue the Credit to that American Express Payment Device. If the Cardholder has questions, advise him or her to call the customer service number on the back of the American Express Payment Device in question.
  • If the inactive or unavailable American Express Payment Device is a Prepaid Card, apply Merchant’s usual refund policy for returns. If Merchant issues a Credit, Allegiance Merchant Services will not refund the Discount or any other fees or assessments previously applied on the corresponding Charge. The Discount on Chargebacks will not be refunded.

f. Credit Transaction Receipts. Merchant must create a Credit Transaction Receipt for any Credit Merchant issues.
i. In General. For all Credit Transaction Receipts, Merchant must:

  • Submit the credit through Allegiance Merchant Services;
  • Retain the original Credit Transaction Receipt (as applicable) and all documents evidencing the Transaction, or reproducible records thereof, for the timeframes listed below; and
  •  Provide a copy of the Credit Transaction Receipt to the Cardholder.

ii. Paper Credits. If Merchant submits Credits on paper, Merchant must create a Credit Transaction Receipt containing all of the following required data:

  • full Card Number and Expiration Date (pursuant to applicable Laws), and if available, Cardholder name,
  • the date the Credit was issued,
  • the amount of the Credit, and
  • Merchant’s Establishment name and address and, if applicable, store number.

The retention time frame for Credit Transaction Receipts is twenty-four (24) months from the date of the Credit.

g. Advance Payment Charges. An Advance Payment Charge is a Charge for which full payment is made in advance of Merchant’s providing the goods and/or rendering the services to the Cardholder. Purchases involving Advance Payment Charges generally carry a higher level of risk than other Charges, due to the fact that goods and services are not provided at the time the Charge is processed. For this reason, American Express may withhold settlement for part or all of such Charges until it is determined that the risk has diminished.
Merchant must follow the procedures in this Section E(3)(g), in addition to all other applicable procedures in the MOG and Section A of the TOS, if Merchant offers the Cardholder the option or requires the Cardholder to make Advance Payment Charges, including, without limitation, for the following types of goods and/or services:

  • Custom orders (e.g., orders for goods to be manufactured to a customer’s specifications);
  • Entertainment/ticketing (e.g., sporting events, concerts, season tickets);
  • Tuition, room and board, and other mandatory fees (e.g., library fees) of higher educational institutions; and
  • Travel-related services (e.g., tours, guided expeditions). For an Advance Payment Charge, Merchant must:
  • State Merchant’s full cancellation and refund policies, clearly disclose Merchant’s intent and obtain written consent from the Cardholder to bill the American Express Payment Device for an Advance Payment Charge before Merchant request an Authorization. The Cardholder’s consent must include:
    • his or her agreement to all the terms of the sale (including price and any cancellation and refund policies), and
    •  a detailed description and the expected delivery date of the goods and/or services to be provided;
  • Obtain an Approval Code; and
  • Complete a Transaction Receipt. If the Advance Payment Charge is a Card Not Present Charge, Merchant must also:
    •  ensure that the Transaction Receipt contains the words “Advance Payment,” and
    • within twenty-four (24) hours of the Charge being incurred, provide the Cardholder written confirmation (e.g., email or facsimile) of the Advance Payment Charge, the amount, the confirmation number (if applicable), a detailed description and expected delivery date of the goods and/or services to be provided and details of Merchant’s cancellation/refund policy.

If Merchant cannot deliver goods and/or services (e.g., because custom-ordered merchandise cannot be fulfilled), and if alternate arrangements cannot be made, Merchant must immediately issue a Credit for the full amount of the Advance Payment Charge which cannot be fulfilled.

h. Aggregated Charges. An Aggregated Charge is a Charge that combines multiple small purchases or refunds (or both) incurred on an American Express Payment Device into a single, larger Charge before submitting the Charge for payment. If Merchant is classified in an internet industry, Merchant may process Aggregated Charges provided that Merchant complies with the following procedures, as well as all other applicable procedures for Transaction acceptance set forth in this Agreement:

  • Merchant must clearly disclose Merchant’s intent and obtain written consent from the Cardholder that purchases or refunds (or both) on the American Express Payment Device may be aggregated and combined with other purchases or refunds (or both) before Merchant requests an Authorization.
  • Each individual purchase or refund (or both) that comprises the Aggregated Charge must be incurred under the same Establishment and on the same American Express Payment Device.
  • Obtain a pre-Authorization of no more than $15.
  • Create a Transaction Receipt for the full amount of the Aggregated Charge.
  • The amount of the Aggregated Charge must not exceed $15 or the amount for which Merchant obtained pre-Authorization.
  • Merchant must submit each Transaction Receipt within the Submission timeframe.
  • Merchant must provide the Cardholder with an email containing:
    •  the date, amount, and description of each individual purchase or refund (or both) that comprises the Aggregated Charge, and
    • the date and the amount of the Aggregated Charge.

i. Delayed Delivery Charges. A Delayed Delivery Charge is a single purchase for which Merchant must create and submit two separate Transaction Receipts. The first Transaction Receipt is for the deposit or down payment and the second Transaction Receipt is for the balance of the purchase, which is paid after the goods or services have shipped or been provided, as applicable and as agreed by Merchant and the Cardholder. To accept an American Express Payment Device for Delayed Delivery Charges, Merchant must comply with the following procedures, as well as all other applicable procedures for Transaction acceptance set forth in this Agreement:

  • Clearly disclose Merchant’s intent and obtain written consent from the Cardholder to perform a Delayed Delivery Charge before Merchant requests an Authorization,
  • Obtain a separate Approval Code for each of the two Delayed Delivery Charges on their respective Charge dates,
  • Clearly indicate on each Delayed Delivery Transaction Receipt that the Charge is either for the deposit or for the balance of the Delayed Delivery Charge,
  • Submit the Delayed Delivery Transaction Receipt for the balance of the purchase only after the goods have been shipped, provided or services rendered,
  • Submit each Delayed Delivery Transaction Receipt within the Submission timeframes. For these purposes, the Charge will be deemed “incurred”:
    • for the deposit – on the date the Cardholder agreed to pay the deposit for the purchase.
    • for the balance – on the date the goods are shipped, provided or services are rendered.
  • Submit and Authorize each Delayed Delivery Charge under the same Establishment, and
  • Treat deposits paid using an American Express Payment Device no differently than Merchant treats deposits on all other Payment Devices.

j. Keyed No Imprint Program. The Keyed No Imprint Program allows Merchant to submit In- Person Charges without taking an imprint of an American Express Payment Device if Merchant complies with the procedures set forth in this Section E(3)(j), as well as all other applicable procedures for Transaction acceptance set forth in this Agreement:

  • the Charge must be key-entered,
  • the Charge Submission must include the appropriate indicator to reflect that the American Express Payment Device and the Cardholder were present at the point of sale,
  • the Charge Submission must include a valid Approval Code, and
  • the CID Number must be confirmed as a positive match.

All American Express Payment Devices qualify for the Keyed No Imprint Program. Under the Keyed No Imprint Program, Charges will not be subject to Chargeback based solely on the Establishment’s failure to obtain an imprint of the American Express Payment Device.

k. No Signature Program. Qualifying Merchants may participate in the American Express No Signature Program. For eligibility requirements and other information about participating in the American Express No Signature Program, refer to the OptBlue Operating Guide.

l. Recurring Billing Charges. If Merchant offers Cardholders the option to make Recurring Billing Charges, Merchant must comply with the following procedures, as well as all other applicable procedures for Transaction acceptance set forth in this Agreement:

  • Before submitting the first Recurring Billing Charge, Merchant must obtain the Cardholder’s express written consent for Merchant to bill the American Express Payment Device and must notify the Cardholder that he or she can withdraw consent at any time.
  • Merchant must ensure that Merchant’s process for cancellation of Recurring Billing is simple and expeditious. Merchant must fulfill Cardholders’ requests that Merchant discontinue the Recurring Billing Charges immediately and provide cancellation numbers to them.
  • Merchant must clearly and conspicuously disclose all material terms of the option, including, if applicable, the fact that Recurring Billing will continue until the option is cancelled by the Cardholder.
  • Before submitting a Recurring Billing Charge, Merchant must obtain Authorization and complete a Transaction Receipt, except with the words “signature on file,” if applicable, on the signature line and the appropriate electronic descriptor on the Transaction Receipt.
  • Within twenty-four (24) hours of incurring the first Recurring Billing Charge, Merchant must provide the Cardholder written confirmation (e.g., email or facsimile) of such Charge, including all material terms of the option and details of Merchant’s cancellation/refund policy, and
  • Where the material terms of the option to make Recurring Billing Charges change after Submission of the first Recurring Billing Charge, promptly notify the Cardholder in writing of such change and obtain the Cardholder ‘s express written consent to the new terms prior to submitting another Recurring Billing Charge.

If Merchant’s Recurring Billing Charge amounts vary, Merchant must offer the Cardholder the right to receive written notification of the amount and date of each Recurring Billing Charge:

  • at least ten (10) days before submitting each Charge, or
  • whenever the amount of the Charge exceeds a maximum Recurring Billing Charge amount specified by the Cardholder.

If a Cardholder withdraws consent to Recurring Billing Charges or does not consent to a given variable-amount Recurring Billing Charge of which such Cardholder has been notified, such Charge may be subject to Chargeback. If an American Express Payment Device is cancelled, or if a Cardholder withdraws consent to Recurring Billing Charges, Merchant is responsible for arranging another form of payment (as applicable) with the Cardholder.

If Merchant’s acceptance of American Express Payment Devices terminates for any reason, then Merchant must notify all Cardholders for whom Merchant have submitted Recurring Billing Charges that Merchant no longer accept American Express Payment Devices.

The cancellation of an American Express Payment Device constitutes immediate cancellation of that Cardholder’s consent for Recurring Billing Charges. Allegiance Merchant Services will not notify Merchant of such cancellation, and neither American Express nor Allegiance Merchant Services will have any liability to Merchant arising from such cancellation.
Merchant must retain evidence of consent to receive updated American Express Payment Device account information from the Issuer for twenty-four (24) months from the date Merchant submits the last Recurring Billing Charge.

m. Processing American Express Prepaid Cards. American Express Prepaid Cards are valid through the date on the American Express Payment Device. An American Express Prepaid Card must be tendered for an amount that is no greater than the funds available on the American Express Prepaid Card. In addition to all other applicable requirements in this Agreement regarding acceptance of Transactions, when accepting Prepaid Cards, Merchants should:

  • Instruct Cardholders that, before making a purchase, they must check their remaining funds by calling the twenty-four (24) hour, toll-free number on the back of the Card or checking online; and
  • If Merchant receives a Declined Code when seeking Authorization, ask the customer to call the toll-free number on the back of the Prepaid Card to confirm that the purchase price does not exceed the available funds on the American Express Prepaid Card.

n. Processing Travels/Gift Cheques. To accept American Express Travelers and Gift Cheques:

  • Watch the Customer countersign in the lower left corner of the cheque, and compare the countersignature to the signature in the upper left corner for American Express Travelers Cheques and Gift Cheques. For Cheques for Two, the customer’s countersignature must match either one of the two signatures on top.
  • Validate Security Features.
  • Obtain authorization – American Express recommends obtaining an authorization to reduce the chances of accepting fraudulent cheques. American Express offers a variety of authorization tools. See authorization methods in the following table to determine Merchant’s course of action:
If Then
The signature and countersignature are a reasonable match (they look alike, but may not be identical) Accept the cheque. There is no need to obtain any identification.
Merchant suspects that the countersignature may be  false,  or Merchant did not watch the customer countersign Ask the customer to turn the cheque over and sign again across the left-hand side (in the same manner one typically endorses a check). Then take the cheque and fold up the bottom right- hand corner so that Merchant can compare the original signature with the new one.
The signatures are not the same, or if there is a question regarding the validity of the cheque Call the Travelers Cheque/Gift Cheque Customer Service.
Merchant suspects that the Travelers cheque being presented is fraudulent Use any of the following methods to verify that the cheque Merchant is accepting is authentic: o  Perform a smudge test (see chapter 9 of the OptBlue Operating Guide, “Fraud Prevention” for details).

Obtain online Authorization at www.americanexpress.com/verifyamextc

 

 

Additional information regarding Travelers Cheques and Gift Cheques, including a description of security features associated with such cheques, is available in the OptBlue Operating Guide.

4. AUTHORIZATIONS

a. General. For every Charge, Merchant is required to obtain an Authorization Approval Code. The Authorization must be for the full amount of the Charge except for Merchants that are classified in the restaurant industry.

An Authorization Approval does not guarantee that (i) the person making the Charge is the Cardholder, (ii) the Charge is in fact valid or bona fide, (iii) Merchant will be paid for the Charge, or(iv) Merchant will not be subject to a Chargeback.

b. Card Identification (CID) Number. If, during the Authorization, a response is received that indicates the CID Number given by any person attempting the Charge does not match the CID Number printed on the Card, re-prompt the customer at least one more time for the CID Number. If it fails to match again, Merchant should follow its own internal policies for processing Charges without a CID match.

Note: CID Numbers must not be stored for any purpose. They are available for real time Charges only.

c. Authorization Time Limit. Authorization Approvals are valid for seven (7) days after the Authorization date. Merchant must obtain a new Approval if Merchant submits the Charge to Allegiance Merchant Services more than seven (7) days after the original Authorization date.

For Charges of goods or services that are shipped or provided more than seven (7) days after an order is placed, Merchant must obtain an Approval for the Charge at the time the order is placed and again at the time Merchant ship or provide the goods or services to the American Express Cardholder.

The new Approval must be included in the Transaction Receipt. If either of the Authorization requests is Declined, do not provide the goods or services or submit the Charge. If Merchant does, Merchant will be subject to a Chargeback.

5. SUBMISSIONS.

a. Submission Requirements – Electronic. Merchant must submit transactions electronically except under extraordinary circumstances.

When Merchant transmits Charge Data and Transmission Data electronically, Merchant must still complete and retain Transaction Receipts and Credit Transaction Receipts.

Merchant’s Establishments must submit Charges and Credits only in U.S. Dollars

b. Charge Submissions. Merchant must submit all Charges to us within seven (7) days of the date they are incurred. Charges are deemed “incurred” on the date the American Express Cardholder indicates to Merchant that they will pay for the goods or services purchased with the American Express Payment Device. Charges must not be submitted to us until after the goods are shipped, provided, or the services are rendered. Merchant must submit all Charges under the Establishment where the Charge originated.

For Aggregated Charges, the Charge must be submitted within seven (7) days of the date of the last purchase (and/or refund as applicable) that comprises the Aggregated Charge.

Delayed Delivery Charges and Advance Payment Charges may be submitted before the goods are shipped, provided or the services are rendered.

c. Credit Submissions. Merchant must submit all Credits to us within seven (7) days of determining that a Credit is due. Merchant must submit each Credit under the Establishment where the Credit originated.

6. FRAUD PREVENTION.

Chapter 9 of the OptBlue Operating Guide contains important information for Merchants regarding fraud deterrence and mitigation, including tips for recognizing fraudulent activity, a description of the security features associated with various types of American Express Payment Devices, means of verifying the authenticity of American Express Travelers Cheques and Gift Cheques, and additional fraud mitigation tools available to Merchants.

7. SPECIFIC INDUSTRIES

a. Auto dealers. This section applies to Merchants classified in an auto dealer industry.

The following requirements will apply to Charges for the down payment or the entire purchase price of new and used motor vehicles. Merchant may accept American Express Payment Devices for the down payment or the entire purchase price of a new or used motor vehicle, subject to the following limitations:

  • Merchant must not submit a Charge for the down payment or entire purchase price of a motor vehicle unless and until Merchant has a written agreement/bill of sale signed by the Cardholder setting forth the terms of the sale, including down payment price (if any), purchase price, and Merchant’s cancellation policy.
  • Any portion of the Charge for the down payment price or purchase price of a motor vehicle which is disputed by the Cardholder may be subject to Chargeback if such Disputed Charge cannot be resolved in Merchant’s favor based upon unambiguous language contained in the written agreement/bill of sale.
  • Should a Cardholder exercise his or her right to rescind the written agreement/bill of sale during any rescission period set forth in the Cardholder’s agreement with Merchant or at law, Merchant shall submit a Credit promptly.
  • If Merchant is classified as an auto dealer of used motor vehicles exclusively, the down payment must not exceed 50% of the full purchase price of the motor vehicle.
  • The amount of the Charge must not exceed the total price of the motor vehicle after deduction of applicable discounts, taxes, rebates, cash down payments, and trade-in values.
  • If the Cardholder denies making or authorizing the Charge, the Charge may be subject to Chargeback.

b. Business-to-Business (B2B)/Wholesale Distribution. If Merchant is classified in the business-to- business (B2B) or wholesale distribution industries, and Allegiance Merchant Services determines that Merchant is not in the Telecommunications industry, then notwithstanding the prohibition in Section E(2)(d), “Prohibited Uses of the Card”, Merchant may accept the Card for overdue amounts to the extent that acceptance of overdue amounts is a common practice in Merchant’s industry and does not constitute an attempt to obtain payment from the Cardholder whose prior methods of payment have, in American Express’ reasonable judgment, been difficult to collect or uncollectible. An indicator of such difficulty, for example, may be the fact that Merchant has sent an overdue customer account to collections.

For the purposes of Section E(5)(a), “Submission Requirements – Electronic”, a Charge submitted by Merchant’s Establishments classified in the foregoing industries will be deemed “incurred” on the date the Cardholder indicates to Merchant that the Cardholder will pay for the goods or services purchased with the Card.

Notwithstanding the restriction in Section E(5)(a), “Submission Requirements – Electronic”, Merchant must not submit any Charge until the goods have been shipped or services have been provided to the Cardholder. To the extent that Merchant has clearly disclosed Merchant’s intentions to the Cardholder and the Cardholder agrees, then Merchant may submit the following types of Charges before Merchant ships the goods to the Cardholder:

  • Charges representing deposits on custom and special orders (so long as Merchant complies with Applicable Law) or goods not in inventory at the time the order is placed.
  • Charges representing advance, partial, or full payment for goods that the Cardholder requests Merchant to ship at a later date.

c. Insurance. This section contains provisions specific to Establishments that are classified in the insurance industry. If any of Merchant’s goods or services are sold or billed by independent Agencies, then Merchant must provide to Allegiance Merchant Services a list of such independent Agencies and notify Allegiance Merchant Services of any subsequent changes in the list.

Allegiance Merchant Services may provide this list to American Express, which may use this list to conduct mailings that encourage such independent Agencies to accept American Express Payment Devices. American Express may mention Merchant’s name in such mailings, and Merchant must provide American Express with a letter of endorsement or assistance as American Express may require.

Merchant must use Merchant’s best efforts to encourage independent Agencies to accept the Card. From time to time, and subject to Section E(2)(A), “American Express Payment Device Acceptance”, American Express may establish joint marketing campaigns that promote American Express Payment Device acceptance specifically at Merchant’s Establishments or, generally, at insurance companies. A necessary purpose for which Merchant submits Cardholder Data that is responsive to such joint marketing campaigns includes American Express’ use of that information to perform back-end analyses to determine the success of such joint marketing campaigns.

American Express undertakes no responsibility on Merchant’s behalf for the collection or timely remittance of premiums. American Express will not be subject to any liability, under any circumstances, for any claim arising from, or related to, any insurance policy issued by Merchant or Merchant’s Agencies.

If American Express Payment Devices are accepted as payment for fixed rate cash value life insurance policies or fixed rate annuities under the Agreement, Merchant represents and warrants that the fixed rate cash value life insurance policies and fixed rate annuities for which the American Express Payment Device will be accepted for premium payments are not securities requiring registration under the Securities Act of 1933, Merchant must indemnify, defend, and hold harmless American Express and its Affiliates, successors, assigns and Issuers from and against all damages, liabilities, losses, costs, and expenses, including legal fees, arising or alleged to have arisen from Merchant’s breach of this representation and warranty.

d. Oil/Petroleum. This section applies to Merchants that are classified in the oil and petroleum industry.

i. Requirements. Merchants in the oil and petroleum industry must:

  • Obtain a unique Merchant Identification Number for Merchant’s CAT gas pump sales. If Merchant conducts any other business at Merchant’s Establishment, Merchant must obtain a unique Merchant Identification Number for those lines of Merchant’s business.
  • Submit dealer location data along with each Authorization request and each Submission file. Dealer location data consists of Merchant’s business’s:
    • Dealer number (store number),
    • Name ,
    • Street address,
    • City, and
    • Postal code.

ii. Fraud Full Recourse Program. Merchants in the oil and petroleum industry may be placed in the Fraud Full Recourse Program if Merchant accepts Charges originating at a CAT gas pump. However, even if a Merchant has been placed in the Fraud Full Recourse Program, American Express will not exercise Chargeback up to a certain dollar amount for Charges that qualify under the Oil Fraud Protection Program.

iii. Oil Fraud Protection Program. An Establishment qualifies for the Oil Fraud Protection Program, if it (i) authorizes and submits Transactions under the unique Merchant Identification Number assigned to the Establishment, and (ii) in a given month, has a counterfeit fraud to Charge volume ratio below 1%. An Establishment whose counterfeit fraud to Charge volume ratio rises to or exceeds 1% in a given month will not qualify for the Oil Fraud Protection Program until the ratio falls below 1% for three (3) consecutive months. Notwithstanding the foregoing, the Oil Fraud Protection Program does not apply to any Merchant that submits under one Merchant Identification Number consolidated Charges from multiple Establishments (i.e., central submitters) or to the Establishments that such a Merchants submits on behalf of.

Under the Oil Fraud Protection Program, Charges up to $100 will not be subject to Chargeback, provided that both the Establishment and each Charge meet the following criteria:

  • the Authorization request meets the American Express data requirements listed in Section 4.3of the OptBlue Operating Guide,
  • the Authorization request must include the correct Merchant Category Code (MCC) for “automated fuel dispensers” (5542), and
  • the Issuer determines that the American Express Payment Device used to initiate the Charge was counterfeit.

Section 12.5.2 of the OptBlue Operating Guide contains recommendations for Merchants regarding mitigation of fraud associated with CAT gas pumps.

e. Restaurants. With respect to Transactions submitted by Merchants in the restaurant or bar industry. If the final restaurant or bar Charge is no greater than the amount for which Merchant obtained Authorization plus 20% of that amount, no further Authorization is necessary. If the final restaurant or bar Charge exceeds the amount for which Merchant obtained Authorization by more than 20%, Merchant must obtain Authorization for any amount in excess of the original Authorization. When submitting the Charge, only include the initial Approval.

f. Telecommunications. If Merchant is classified in the Telecommunications industry, notwithstanding anything to the contrary in the Agreement, Merchant may be placed in one or more of the following Chargeback programs:

i. Partial Immediate Chargeback Program for an amount of $50 or less; or

ii. Fraud Full Recourse Program.

Merchant must comply with any audit procedures that may be established regarding the submission of Recurring Billing Charges under the correct Merchant Identification Number.

g. Government/Utilities/Education. This section applies to Merchants classified in the government, utilities, or certain education industries (i.e. higher education, private school – kindergarten to grade 12).

Merchants in the government, utilities and applicable education sectors may assess convenience fees on Charges, subject to the following limitations, as well as all other applicable provisions of this Agreement:

  • Merchants classified as government Entities, including government utilities, and privately owned utilities may assess convenience fees on all Charges.
  • Merchants classified as educational institutions may assess convenience fees only on Charges for tuition, room and board, school lunch payments or other mandatory fees.

Any explanation, verbal or written, describing why the convenience fee is being assessed, or how it is calculated, must characterize the convenience fee as an assessment to cover the Merchant’s administrative costs and not as an assessment to cover the Merchant’s cost of accepting the American Express Payment Device.

h. Internet/Online Pharmacies. If Allegiance Merchant Services determines that Merchant is an internet/online pharmacy Merchant that accepts American Express Payment Devices for sales of prescription medications (as defined by Applicable Law) in the Card Not Present environment:

  • Merchant must be certified by the Verified Internet Pharmacy Practice Sites program of the National Association of Boards of Pharmacy (www.nabp.net), or
  • Merchant or Merchant’s authorized representative must attest that Merchant comply with the licensing and inspection requirements of (i) U.S. federal law and the state in which Merchant are located and (ii) each state to which Merchant dispense pharmaceuticals.

i. Online/Mail Order Tobacco. If Merchant is classified or it is otherwise determined that Merchant is an online or mail order (or both) tobacco or e-cigarette Merchant, then Merchant must provide the website address of the online store from which Merchant sell Merchant’s tobacco products. If Merchant’s website facilitates tobacco sales, Merchant will be required on request to provide an executed and notarized Affidavit of Compliance with Laws – Online/Mail Order Tobacco. If Merchant fails to complete the Affidavit, American Express Payment Device Acceptance privileges may be suspended.

8. DISPUTE RESOLUTION

ARBITRATION AGREEMENT (as to Claims involving American Express)
In the event that Merchant or Allegiance Merchant Services is not able to resolve a Claim against American Express, or a claim against Allegiance Merchant Services or any other entity that American Express has a right to join in resolving a Claim, this section explains how Claims can be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by individual, binding arbitration. Claims are decided by a neutral arbitrator.

If arbitration is chosen by any party, neither Merchant nor Allegiance Merchant Services nor American Express will have the right to litigate that Claim in court or have a jury trial on that Claim. Further, Merchant, Allegiance Merchant Services, and American Express will not have the right to participate in a representative capacity or as a member of any class pertaining or be a named party to a class-action with respect to any Claim for which any party elects arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator’s decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator’s decision will be final and binding. Other rights Merchant, Allegiance Merchant Services, or American Express would have in court may also not be available in arbitration.

i. Initiation of Arbitration. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization’s rules in effect when the Claim is filed, except where those rules conflict with the Merchant Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, or to an arbitrator appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing that Merchant attends shall take place in New York, New York unless all parties agree to an alternate venue.

ii. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other merchants or other persons or entities similarly situated. The arbitrator’s authority is limited to Claims between Merchant, Allegiance Merchant Services, and American Express. Claims may not be joined or consolidated unless all parties to this agreement agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, Allegiance Merchant Services or American Express and cannot be used in any other case except to enforce the award as between Merchant, Allegiance Merchant Services and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these Limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.

iii. Previously Filed Claims/No Waiver. Merchant, Allegiance Merchant Services, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, Allegiance Merchant Services, or American Express may choose to delay enforcing or to not exercise rights under this arbitration provision, including the right to elect to arbitrate a Claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the “Honor All Cards,” “non- discrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Payment Device acceptance agreement, that was filed against American Express prior to the effective date of the Merchant Agreement.

iv. Arbitrator’s Authority. The arbitrator shall have the power and authority to award any relief that would have been available in court, including equitable relief (e.g., injunction, specific performance) and cumulative with all other remedies, shall grant specific performance whenever possible. The arbitrator shall have o power or authority to alter the Merchant Agreement or any of its separate provisions, including this section, nor to determine any matter or make any award except as provided in this section.

v. Split Proceedings for Equitable Relief. Merchant, Allegiance Merchant Services, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits to preserve the status quo pending completion of such process. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all reasonable attorneys’ fees and costs, including legal fees, to be paid by the party against whom enforcement is ordered.

vi. Small Claims. American Express shall not elect to use arbitration under this section for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.

vii. Governing Law/Arbitration Procedures/Entry of Judgment. This arbitration section is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and shall honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not the federal or any state rules of civil procedure or rules of evidence, provided that any party may request that the arbitrator to expand the scope of discovery by doing so in writing and copying any other parties, who shall have fifteen (15) days to make objections, and the arbitrator shall notify the parties of his/her decision within twenty (20) days of any objecting party’s submission. If a Claim is for $10,000 or less, Merchant or American Express may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the rules of the selected arbitration organization. At the timely request of a party, the arbitrator shall provide a written and reasoned opinion explaining his/her award. The arbitrator’s decision shall be final and binding, except for any rights of appeal provided by the FAA. If a Claim is for $100,000 or more, or includes a request for injunctive relief, (a) any party to this Merchant Agreement shall be entitled to reasonable document and deposition discovery, including (x) reasonable discovery of electronically stored information, as approved by the arbitrator, who shall consider, inter alia, whether the discovery sought from one party is proportional to the discovery received by another party, and (y) no less than five depositions per party; and (b) within sixty (60) days of the initial award, either party can file a notice of appeal to a three-arbitrator panel administered by the selected arbitration organization, which shall reconsider de novo any aspect requested of that award and whose decision shall be final and binding. If more than sixty (60) days after the written arbitration decision is issued the losing party fails to satisfy or comply with an award or file a notice of appeal, if applicable, the prevailing party shall have the right to seek judicial confirmation of the award in any state or federal court where Merchant’s headquarters or Merchant’s assets are located.

viii. Confidentiality. The arbitration proceeding and all testimony, filings, documents, and any information relating to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other party. All offers, promises, conduct, and statements, whether written or oral, made in the course of the Claim resolution process, including but not limited to any related negotiations, mediations, arbitration, and proceedings to confirm arbitration awards by either party, its agents, employees, experts or attorneys, or by mediator or arbitrator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or non-parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation, mediation, or arbitration.

ix. Costs of Arbitration Proceedings. Merchant will be responsible for paying Merchant’s share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a Claim in court. American Express will be responsible for any additional arbitration fees. At Merchant’s written request, American Express will consider in good faith making a temporary advance of Merchant’s share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.

x. Additional Arbitration Awards. If the arbitrator rules in Merchant’s favor against American Express for an amount greater than any final settlement offer American Express made before any arbitration award, the arbitrator’s award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by Merchant.

xi. Definitions. For purposes of this section E(8) only, (i) American Express includes any of its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, and (ii) Merchant includes any of Merchant’s affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against Allegiance Merchant Services or any other entity that American Express has the right to join in resolving a Claim, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.

 

SECTION F – TRANSEND PRO HEALTHCARE SERVICES

 

If Merchant has selected any of the Transend Pro Healthcare Services designated on the Transend Services Merchant Application (the “Healthcare Services”), Merchant shall be subject to, and shall comply with, this Section F.The Healthcare Services include the eCashiering Services, Patient Pay Online, Patient Billing Services, Return Mail Manager and Patient Voice Pay Services described in this Section F and the Transend Services Merchant Application and any exhibits, attachments, or schedules attached thereto. Except as expressly modified by this Section F, the Healthcare Services are subject to the terms and conditions of the other applicable provisions of the Agreement.

Merchant acknowledges that it is a covered entity as defined in 45 C.F.R. § 160.103 and the regulations codified at 45 C.F.R. Parts 160 and 164 (“HIPAA Privacy Rule”) promulgated under Subtitle F of Title II of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). In connection with its performance of services other than certain Healthcare Services under the Agreement, Allegiance Merchant Services is processing customer card transactions, not performing a HIPAA-covered function on behalf of Merchant, and is not functioning as a business associate even if Allegiance Merchant Services has access to individually identifiable health information or protected health information (“PHI”) as defined in HIPAA. Some Healthcare Services, such as healthcare administration services, may be considered “Business Associate Services” as defined in HIPAA. With respect to any Business Associate Services, the terms of Section F(2), “Business Associate Agreement” (the “BAA”), will apply. The parties agree that the BAA applies only to those Healthcare Services provided under this Section F that are business associate services, and not any Healthcare Payment Processing Services or other financial services provided by Allegiance Merchant Services under this Section F or the rest of the Agreement.

1. HEALTHCARE SERVICES GENERALLY

a. DEFINITIONS. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Glossary. As used in this Section F, the capitalized terms set forth below shall have the following definitions:

i. Healthcare Payment Processing Services: The acceptance and processing of payment by cash, check, Electronic Check Service, Credit Card, or Debit Card; acceptance of scheduled payments from checking or savings accounts, Credit Cards, or Debit Cards; the maintenance of a patient portal for online payment; posting of payments to patient accounts or creation of a posting file; print, mail and electronic statements; interactive voice response; and related customer support.

ii. Healthcare Services: Any of the Transend Pro Healthcare Services.

iii. Transend Pro Healthcare Services: A hosted web based patient payment application that enables transactions at the point-of-care including a patient payment portal for online payments, streamlines back office collections, automates posting of patient accounts, advanced billing, and mail management capabilities.

iv. Healthcare Services Effective Date: The date on which Allegiance Merchant Services accepts the Transend Services Merchant Application.

b. RIGHTS AND OBLIGATIONS.

i. License and Restrictions. Subject to the terms and conditions of this Section F, Allegiance Merchant Services hereby grants Merchant a non-exclusive, non-transferable license (without the right to sublicense) to access and use, as applicable, the Healthcare Services selected by Merchant exclusively for Merchant’s internal business use. Except as otherwise expressly permitted by this Section F, Merchant shall not, and will ensure that its employees, agents, contractors, and vendors do not: (i) copy (other than maintaining one backup or archival copy for Merchant’s internal business use only), re-sell, republish, download, frame or transmit in any form or by any means any Healthcare Services, or any part thereof; (ii) rent, lease, subcontract, operate or otherwise grant access to, or use for the benefit of any third party, the Healthcare Services; (iii) decompile, disassemble, reverse engineer or translate the Healthcare Services; (iv) change, modify, alter or make derivative works of the Healthcare Services; (v) without Allegiance Merchant Services’s prior written consent, grant any third party access to the computers, hardware, system or equipment on which the Healthcare Services are accessible, provided, however, that only written notice (not consent) shall be required with respect to billing services organizations acting as Merchant’s agent for the collection of patient accounts; (vi) attempt to interfere with or disrupt the Healthcare Services or attempt to gain access to any other services, hardware or networks owned, maintained or operated by Allegiance Merchant Services or its suppliers; (vii) disclose any passwords or other security or authentication device with respect to the Healthcare Services to any person other than the person to whom it was issued; (viii) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the Healthcare Services; (ix) directly or indirectly, ship, export or re- export the Healthcare Services; (x) directly or indirectly resell or re-offer the Healthcare Services; or (xi) act as a gateway through which a third party may gain direct or indirect access to the Healthcare Services

ii. Implementation. Merchant shall, at its own expense, pay for any preparation of its facilities necessary for it to access and use the Healthcare Services as set forth in this Section F.

iii. Ownership. Merchant acknowledges and agrees that the Healthcare Services, Allegiance Merchant Services’s Internet websites and any related tools, content, applications and utilities (including all modifications, enhancements and customizations to and compilations and derivative works of any of the foregoing) and all patents, copyrights, trademarks, trade secrets and other intellectual property rights related to or embodied therein, whether created or developed prior to, during, or after the Term (collectively, the “Intellectual Property”) shall remain the exclusive property of Allegiance Merchant Services and/or its licensors, as applicable. Merchant acknowledges and agrees that it has no right in or license grant to any source code contained in or related to the Healthcare Services pursuant to this Section F. As between Allegiance Merchant Services and Merchant, Allegiance Merchant Services and/or its licensors, as applicable shall retain all rights, title and interest in the Healthcare Services, and the Intellectual Property not expressly granted herein. Any information obtained or works created in violation of this Section F shall be both the Intellectual Property and the Confidential Information of Allegiance Merchant Services and/or its licensors, as applicable, and shall automatically and irrevocably be deemed to be assigned to and owned by Allegiance Merchant Services and/or its licensors, as applicable.

iv. Use by Third Parties. Allegiance Merchant Services hereby consents to Merchant allowing one or more third parties to access and use the Healthcare Services but only for Merchant’s benefit and in connection with Merchant’s internal business operations and activities, including access to and use of the Healthcare Services from backup equipment at a secure off-site backup location and/or for testing purposes, subject to the restrictions of this Section F and provided such third parties have agreed to be bound by the licensing terms and restrictions of this Section F.

v. Upgrades. During the term of this Agreement, Allegiance Merchant Services shall make available to Merchant any updates, upgrades or modifications to the Healthcare Services that Allegiance Merchant Services generally makes available to its other customers, and each such update, upgrade and modification and all parts thereof shall be deemed to be part of the Healthcare Services and shall be governed by the terms of this Section F.

c. FEES. Merchant shall pay the fees for Healthcare Services set forth on the Transend Services Merchant Application. The fees shall remain in effect for the duration of the Initial Term; provided however, that Allegiance Merchant Services shall be entitled to increase the fees at any time upon ninety (90) days’ advance written notice to Merchant upon the occurrence of any one of the following (each a “Fee Adjustment Event”): (i) an increase in Merchant’s aggregate card transaction expense greater than eight (8) basis points during any twelve (12) month period as a result of any one of the following events: (a) fee increases in interchange and assessments; (b) increased or new fees imposed by a third party; or (c) changes in Merchant’s card type, mix, or processing method; and (ii) increase in Merchant’s aggregate card Transaction expense greater than twenty (20) basis points during the Initial Term or any successive Renewal Term as a result of any one event or combination of the following events: (a) fee increases in interchange or assessments; (b) increased or new fees imposed by a third party; and/or (c) changes in Merchant’s card type, mix, or processing method. Allegiance Merchant Services shall be permitted to change fees based on a Fee Adjustment Event in its discretion by giving Merchant not less than ninety (90) days’ prior written notice of such change, which change shall be effective at 11:59PM on the final day of such notice period.

d. ADDITIONAL PROVISIONS. The following provisions (subsections i through vii) are deemed to supplement the referenced Sections in other provisions of the Agreement. The referenced Agreement Sections shall be deemed to refer to any successor provisions contained in Section A of the TOS, regardless of numbering or titling.

i. Section (A)(4)(b) Settlement of Transactions. Section (A)(b) of the Agreement shall be amended by adding the following new section (iv) thereto: iv. Settlement for Healthcare Payment Processing Services. Transactions settled via the Healthcare Payment Processing Services provided under the Transend Services Merchant Application are daily “net” settled (meaning that Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks and other amounts due to Allegiance Merchant Services or Member in connection with the Healthcare Payment Processing Services are netted from Transaction proceeds).

ii. Section (A)(8)(b) Indemnification. Merchant shall indemnify and hold harmless Allegiance Merchant Services and its licensors, directors, officers, employees, agents, shareholders, and representatives and any third party service providers from and against any and all damages arising from: (i) the use of the Healthcare Services in violation of this Section F by Merchant or any affiliate, partner, employee, agent or contractor of Merchant, or any other third party that gains access to or uses the Healthcare Services through Merchant (including through the use of any of Merchant’s access credentials); (ii) any claim that the Healthcare Services as modified or altered by Merchant, its partners, employees, agents or contractors, or the use of any data submitted by Merchant, infringes the patent, copyright or other intellectual property right, or misappropriates the trade secrets, of any third party; and (iii) any inaccurate or incomplete data, or any virus, worms, spyware, back door, Trojan horse or other malicious code transmitted by Merchant.

iii. Section (A)(8)(c) Limitation of Liability. Any claim or cause of action arising out of, based on, or relating to this Section F not presented by Merchant within one (1) year from the discovery of the claim or cause of action shall be deemed waived. Merchant shall have the duty to mitigate damages for which Allegiance Merchant Services may become responsible under this Section F.

iv. Section (A)(8)(d) Performance. ALLEGIANCE MERCHANT SERVICES MAKES NO WARRANTIES RELATED TO OR IN CONNECTION WITH MERCHANT’S USE OF ANY THIRD PARTY SERVICES, SOFTWARE, DATA, HARDWARE OR EQUIPMENT USED IN CONJUCTION WITH THE HEALTHCARE SERVICES.

v. Section (A)(18)(d) Exclusivity. Section (A)(18)(d) of the Agreement is revised by adding the following to the end of the section: Notwithstanding the foregoing, this exclusivity provision shall not apply to any point-of-sale location of the Merchant that does not interface or interact with the Healthcare Services provided Section F of the Agreement. The parties intend that this section only applies to Merchant’s Affiliated Entities set out on the Affiliated Entities Addendum to the Agreement, as such may be amended from time to time, that interface with the Healthcare Services.

vi. Section (A)(9) Representations and Warranties. Section (A)(9) is amended by adding the following new subsection (h): Merchant represents and warrants that, as of the Effective Date, neither it nor its medical staff, partners, officers, directors, or employees are or have been (a) sanctioned for, or convicted of, a criminal offense related to health care or (b) barred, suspended or terminated from participation in a state or federal health care program. Either party hereto may terminate the Healthcare Services automatically upon notice to the other party should Merchant or its medical staff, partners, officers, directors, or employees become so sanctioned, convicted, barred, suspended or terminated.

vii. Section (A)(9) Representations and Warranties. Section (A)(9) is amended by adding the following new subsection (i) thereto: (i) Allegiance Merchant Services and Member Covenants. If and to the extent required by Section 1395x(v)(1)(I) of Title 42 of the United States Code, until the expiration of 4 years after the termination of the Transend Services Merchant Application, Allegiance Merchant Services shall make available, upon written request by the HHS Secretary or the Comptroller General of the United States General Accounting Office, or any of their duly authorized representatives, a copy of this Agreement and such books, documents and records as are necessary to certify the nature and extent of the costs of the products and services provided hereunder. Allegiance Merchant Services further agrees that, in the event it carries out any of its duties under the Transend Services Merchant Application through a subcontract with a related organization with a value or cost of $10,000.00 or more over a 12 month period, such subcontract shall contain a similar requirement for the subcontractor.

e. TERMINATION. In addition to obligations of the parties related to termination as set forth in Section A, the parties agree as follows:

i. Termination of Individual Healthcare Services. In addition to the termination provisions set forth in Section A, Allegiance Merchant Services and Merchant agree that any Healthcare Services may be individually terminated by Allegiance Merchant Services or Merchant upon ninety (90) calendar days’ prior written notice. Without limitation, should all of the Healthcare Services be terminated for any reason, this entire Section F, with the exception of the BAA, shall become inapplicable concurrently with the last individual Healthcare Service to be terminated.

ii. Effect of Termination. Upon termination or expiration of any individual Healthcare Service, all rights granted to Merchant to use, access and/or receive the Healthcare Services outlined in such corresponding subsection of this Section F shall immediately cease, Merchant shall discontinue any and all use thereof and Merchant shall return to Allegiance Merchant Services or shall delete and destroy any and all copies, complete or partial, of any documentation and any licensed software or application services utilized in connection with such Healthcare Services (including any and all copies maintained on Merchant’s or its agent’s computers, hardware, equipment and systems), and, upon Allegiance Merchant Services’s request, Merchant shall certify in writing to Allegiance Merchant Services that all such materials have been returned, destroyed or deleted in accordance with the terms of this Section F.

iii. Early Termination Fee. If Merchant terminates all of the Healthcare Services at any time during the Initial Term, Merchant will pay to Allegiance Merchant Services any termination fee specified on the Transend Services Merchant Application. Merchant agrees that the Early Termination Fee is not a penalty, but rather is reasonable in light of the financial harm caused by Merchant’s early termination. Allegiance Merchant Services will use commercially reasonable efforts to debit Merchant’s account in the amount of the Early Termination Fee within sixty (60) days of receipt of Merchant’s written notice of termination.

iv. Transition Assistance. At the request of Merchant, Allegiance Merchant Services shall provide Merchant with up to ninety (90) days of assistance in transitioning the Healthcare Services provided under this Section F to Merchant or a provider designated by Merchant, which transition assistance shall begin on the termination date of each specific Healthcare Service (or such earlier date following notice of termination as may be requested by Merchant) (the “Transition Period”). Allegiance Merchant Services shall continue to perform, and Merchant shall continue to pay Allegiance Merchant Services, in accordance with this Agreement during any such Transition Period. In addition, Merchant shall pay Allegiance Merchant Services, at Allegiance Merchant Services’s then-standard rates, for any additional services performed by Allegiance Merchant Services at Merchant’s request in connection with transitioning the Healthcare Services. Notwithstanding the foregoing, Allegiance Merchant Services shall not be obligated to provide transition assistance to Merchant if Allegiance Merchant Services terminates any of the Healthcare Services for cause or following the natural expiration or non-renewal by either party of the Agreement in accordance with its terms. Each party shall continue to fully comply with all provisions of the Agreement during any Transition Period.

f. NOTICES. For notices provided pursuant to this Section F only:

i. If to Allegiance Merchant Services. In addition to the Notice Section (A)(18)(h) of the Agreement, a copy of the notice shall be sent to Attn: Vice President Healthcare Payment Solutions, Allegiance Merchant Services, Inc., 9359 East Nichols Avenue, Englewood, CO, 80112.

2. BUSINESS ASSOCIATE AGREEMENT

a. DEFINITIONS. The following terms used in this BAA shall have the same meaning as those terms in HIPAA: Breach; Designated Record Set; Disclosure; Health Care Operations; Individual, Minimum Necessary; Notice of Privacy Practices; Required by Law; Secretary; Security Incident; Subcontractor; Unsecured Protected Health information; and Use.

i. “Business Associate” shall mean U.S. Bank National Association and Allegiance Merchant Services, Inc.

ii. “Covered Entity” shall mean the Merchant signing the Transend Services Merchant Application, and, if applicable, any and all affiliates listed in the Affiliated Entities Addendum, to the Agreement for which Business Associate is providing services that require the execution of a Business Associate Agreement under HIPAA.

iii. “Disclose” and “Disclosed” shall mean, as appropriate, the present or past release, transfer, provision of access to, or divulging of information outside the entity holding such information.

iv. “HIPAA” shall mean the Standards for Privacy and Security of Individually Identifiable Health Information at 45 CFR part 160 and part 164.

v. “Protected Health Information” shall have the same meaning as the term “Protected Health Information” in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity in connection with services that require the execution of a Business Associate Agreement under HIPAA.

b. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE.

i. Business Associate agrees not to Use or Disclose Protected Health Information other than as permitted or required by the Agreement, this BAA, or Required by Law.

ii. Business Associate agrees to use appropriate safeguards to prevent the Use or Disclosure of the Protected Health Information other than as provided for by this BAA. With respect to any and all electronic Protected Health Information, Business Associate agrees to comply with Subpart C of 45 CFR part 164 and implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the electronic Protected Health Information it receives, maintains, or transmits on behalf of Covered Entity.

iii. Business Associate agrees to report to Covered Entity within 15 days any Use or Disclosure of Protected Health Information not provided for by this BAA of which it becomes aware, including Breaches of Unsecured Protected Health Information as required by 45 CFR
§164.410, and any Security Incident. For the purposes of this reporting requirement, a Security Incident shall not include inconsequential incidents that occur on a daily basis such as scans or “pings” that are not allowed past Business Associate’s or its Subcontractor’s firewall.

iv. Business Associate agrees to ensure that any Subcontractor to whom it provides Protected Health Information agrees in writing to the same restrictions and conditions with respect to such information that apply through this BAA to Business Associate.

v. Upon reasonable notice, Business Associate agrees to make Protected Health Information and books and records relating to the Use or Disclosure of Protected Health Information available to the Secretary in a reasonable time and manner, for purposes of the Secretary determining Covered Entity’s compliance with HIPAA.

vi. Business Associate agrees to document Disclosures of Protected Health Information to the extent required for Covered Entity to respond to a request by an Individual for an accounting of Disclosures of Protected Health Information in accordance with 45 CFR § 164.528. Business Associate agrees to provide to Covered Entity, in a reasonable time and manner, information collected in accordance with this paragraph to the extent required to permit Covered Entity to respond to the Individual’s request for an accounting. Business Associate shall refer to Covered Entity all requests by Individuals for information about or accounting of Disclosures of Protected Health Information. The parties agree to work together in good faith to resolve any disagreement over the requirements of 45 CFR § 164.528.

vii. Business Associate agrees to provide access to Covered Entity of Protected Health Information maintained in a Designated Record Set to enable Covered Entity to meet the requirements of 45 CFR § 164.524. Business Associate agrees to make any amendments to Protected Health Information in a Designated Record Set that Covered Entity agrees to pursuant to 45 CFR § 164.526. If Business Associate receives a request from an Individual for a copy of his or her Protected Health Information or to amend his or her Protected Health Information, Business Associate will forward each such request to Covered Entity within five business days to enable Covered Entity to respond to the Individual’s request.

c. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE.

i. Except as otherwise provided in this BAA, Business Associate may Use or Disclose Protected Health Information to perform functions, activities, or services for, or on behalf of Covered Entity, provided that the Use or Disclosure would not violate HIPAA if undertaken by Covered Entity and is consistent with applicable Minimum Necessary requirements of HIPAA.

ii. Business Associate may Use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of Business Associate.

iii. Business Associate may Disclose Protected Health Information for the proper management and administration of Business Associate, provided that the Disclosures are Required by Law, or that Business Associate obtains reasonable assurances from any person to whom the information is Disclosed that (i) such information will remain confidential and be Used or further Disclosed only as Required by Law or for the purpose for which it was Disclosed to the person, and (ii) that the person will notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

iv. Business Associate may Use and Disclose Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR § 164.502(j)(1).

d. OBLIGATIONS OF COVERED ENTITY.

i. Covered Entity shall notify Business Associate of any changes in Covered Entity’s notice of privacy practices that may affect Business Associate’s Use or Disclosure of Protected Health
Information. Business Associate shall have a reasonable period of time to act on such notice.

ii. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by an Individual to Use or Disclose Protected Health Information, if such changes affect Business Associate’s permitted or required Uses and Disclosures thereof. Business Associate shall have a reasonable period of time to act on such notice.

iii. Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of Protected Health Information prior to acceptance of such restriction by Covered Entity in accordance with 45 CFR § 164.522 so that Business Associate can determine whether it is feasible to comply with such restriction. Once agreed to, Business Associate shall have a reasonable period of time to act on such notice.

iv. Covered Entity will not Disclose any Protected Health Information to Business Associate unless Covered Entity has obtained any consents and authorizations that may be Required by Law or otherwise necessary for such Disclosure.

v. Covered Entity shall not use the names of Allegiance Merchant Services or Member, or any trademark or tradename of Business Associate in any written or oral communication to the public, including any notices provided under HIPAA, without the advance written consent of an authorized representative of Business Associate, which consent shall not be unreasonably withheld or delayed.

e. TERM AND TERMINATION.

i. This BAA shall be effective as of the effective date of the Agreement, and shall survive the termination of this Agreement and any Healthcare Services, remaining in effect until such as time that all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

ii. Upon Covered Entity’s knowledge of a material breach of this BAA by Business Associate, Covered Entity shall provide an opportunity for Business Associate to cure the breach in accordance with the Agreement. Covered Entity may terminate this BAA and the Agreement between Covered Entity and Business Associate which is the subject of any material breach of this BAA by Business Associate if Business Associate does not cure the breach as provided in the Agreement. If Business Associate has breached a material term of this BAA and cure is not possible, Covered Entity may immediately terminate this BAA. This provision shall be in addition to and shall not limit any rights of termination or obligations set forth in the Underlying Agreement.

iii. Except as otherwise provided in this BAA, upon termination of this BAA for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. Except as otherwise provided this BAA, Business Associate shall retain no copies of the Protected Health Information.

iv. If Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall notify Covered Entity of the conditions that make return or destruction infeasible, extend the protections of this BAA to such Protected Health Information, and limit further Uses and Disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible for so long as Business Associate maintains such Protected Health Information.

f. MISCELLANEOUS.

i. The provisions of this BAA shall supersede the provisions of the Agreement only to the extent the provisions herein are inconsistent with the Agreement, and only to the extent necessary to resolve any such inconsistency. Further, this BAA shall supersede in its entirety any existing Business Associate Agreement or addendum between the parties with respect to the Agreement.

ii. Covered Entity represents and warrants that: (i) it is a duly authorized agent of the Merchant’s affiliated entities identified on the Affiliated Entities Addendum to the Agreement and it is signing for itself and on behalf of those entities in its authorized capacity; (ii) it has taken all action required by all relevant organizational documents to enter into this BAA for itself and on behalf of all the entities on the Affiliated Entities Addendum to the Agreement; and (iii) each of Merchant’s affiliated entities identified on the Affiliated Entities Addendum to the Agreement is a covered entity as defined under 45 CFR § 160.103. This BAA shall be null and void with respect to any entity listed on the Affiliated Entities Addendum to the Agreement that does not meet, or ceases to meet, the definition of a covered entity under HIPAA, or to which Business Associate is not providing services that require a Business Associate Agreement under HIPAA.

3. ECASHIERING SERVICES

a. SERVICE OFFERING. Pursuant to the terms and conditions of this Section F(3) and the Agreement, Merchant hereby agrees to purchase and Allegiance Merchant Services hereby agrees to provide to Merchant Allegiance Merchant Services’s hosted electronic payment application services, the eCashiering Services, which enable web-based collection and processing of: (A) credit card and physical payments by Merchant employees from any computer with Internet access, and (B) eCheck debit transactions through the ACH Network (together, the “eCashiering Services”). Allegiance Merchant Services agrees to support an unlimited number of users and transactions (subject to the applicable transaction fees) through th eCashiering Services, to provide web-based user administration and management, and to process Credit Cards through the Merchant’s designated merchant processing relationship. All payment activity will be managed and reported through eCashiering Services’ real-time reporting mechanism, and through daily batch reports formatted and delivered per mutually agreed upon specifications. The eCashiering Services include:

i. Web-based self-service user administration module for managing user accounts;

ii. Web-based access to all patient accounts, searchable by patient name or account number;

iii. Web-based payment mechanism capable of accepting “card present”, “card not present” and eCheck transactions, as well as all forms of physical payment;

iv. Web-based access to each account’s current and previous activity, viewable as a PDF;

v. Web-based recurring payment management for Credit Card and eCheck payment (one merchant account supported – support for additional merchant processing accounts may require additional fees);

vi. Web-based virtual cash drawer;

vii. Automatic creation and delivery of payment files formatted per mutually agreed upon requirements;

viii. Web-based reporting, providing the ability for users to download CSV files of payment activity based on date range for cash, physical check, eCheck and credit card transactions;

ix. Web-based reporting, providing real-time access to the status of electronic transactions (eCheck, credit card and check card), including electronic aggregation of transactions by
batch; and

x. Web-based refund/void management.

Additional eCashiering Services functionality may be added, upon the mutual agreement of Allegiance Merchant Services and Merchant, to improve the service. Any new services that may be added may have additional charges associated therewith. If such additional charges will apply, such new services will not be implemented until Merchant has agreed in writing to receive such new services from Allegiance Merchant Services.

b. FEES. Merchant shall pay Allegiance Merchant Services an implementation fee as set forth on the Transend Services Merchant Application for the eCashiering Services. This amount shall be billed during the implementation phase.

c. MERCHANT RESPONSIBILITIES.

i. Merchant will transmit, at its expense, to Allegiance Merchant Services and/or Allegiance Merchant Services’s agents patient financial data in a mutually agreed upon format, for the purpose of integrating information into the eCashiering Services. Merchant shall bear the risk of loss resulting from such transmission. In the event that an additional file is incorporated, Merchant will use the same HIPAA- compliant data communication channel and methodology used to transfer existing patient letter and/or statement data to Allegiance Merchant Services.

ii. Merchant will work in cooperation with Allegiance Merchant Services to develop integration with existing Merchant applications.

d. ALLEGIANCE MERCHANT SERVICES RESPONSIBILITIES.

i. Allegiance Merchant Services will provide a hosted web application that enables real-time processing through a supported browser.

ii. Allegiance Merchant Services will provide programming to facilitate electronic payment and processing services.

iii. Allegiance Merchant Services will provide a daily file of payments processed across payment channels by Merchant. This file will be available for secure downloading from a designated secure site as a Data file. It will also be provided in mutually agreed upon custom file format(s) for uploading directly into Merchant’s healthcare information system.

iv. Allegiance Merchant Services will provide real-time access to all transactional activity via Allegiance Merchant Services’s web-based reporting infrastructure.

v. Allegiance Merchant Services will provide web-based training to designated Merchant employees on payment processing methods, reporting, and administration.

vi. Allegiance Merchant Services will provide first-level phone and email support for eCashiering Services. Online support is available for payment processing related issues through Allegiance Merchant Services’s online reporting tools.

e. PROVISION OF INFORMATION. Merchant hereby acknowledges that the eCashiering Services incorporate Allegiance Merchant Services’s ACH processing services. Merchant shall promptly provide all identifying information and technical data as necessary or otherwise requested by Allegiance Merchant Services in order to provide the eCashiering Services and for Allegiance Merchant Services to comply with all applicable Law, including all regulations and operating rules of any credit card association, the National Automated Clearinghouse Association, or any other authority governing the receipt or provision of the eCashiering Services.

f. RESPONSIBILITY FOR PAYMENT AMOUNTS/FEES. Merchant agrees that, with respect to the eCashiering Services provided hereunder, Merchant shall be fully liable for the underlying amount of Transactions processed by Allegiance Merchant Services that are charged back or for which final settlement does not occur. Merchant shall be fully liable for any fees, adjustments, NSF or other charges, fines, assessments, or other penalties imposed upon Allegiance Merchant Services with respect to such Transactions. Allegiance Merchant Services is hereby authorized to offset and to debit via ACH from a designated Merchant account the underlying amount of any such Transactions and any fees related thereto.

4. PATIENT PAY ONLINE

a. SERVICE OFFERING.

i. Pursuant to the terms and conditions of this Section F(4) and the Agreement, Merchant hereby agrees to purchase and Allegiance Merchant Services hereby agrees to provide to Merchant Allegiance Merchant Services’s Patient Pay Online Services which consist of: (a) development of a Merchant-branded “Online Billing Center” using existing Merchant patient financial data, (b) management and hosting of the Online Billing Center, (c) online reporting and administration for the Online Billing Center, (d) integration of the Online Billing Center to facilitate (i) Credit Card and Debit Card payments and (ii) eCheck transactions through the ACH Network (the “Patient Pay Online Services”). Allegiance Merchant Services will customize all fixed text components of Merchant’s Online Billing Center, including the naming convention and presentation of account data on the main “My Account” page.

ii. In addition to incorporating existing patient financial data into the development of the Online Billing Center, Allegiance Merchant Services also agrees to incorporate a daily data feed that contains any additional patient account activity occurring for each account between statement cycles.

b. FEES. Merchant shall pay Allegiance Merchant Services an implementation fee as set forth on the Transend Services Merchant Application for the Patient Pay Online Services. This amount shall be billed during the implementation phase.

c. ALLEGIANCE MERCHANT SERVICES RESPONSIBILITIES.

i. Allegiance Merchant Services will provide programming to facilitate the electronic presentment of account summary, account detail, online payment, and demographic updates for each enrolled patient.

ii. Allegiance Merchant Services will provide programming to enable Merchant’s patients to access electronic payment services to pay their accounts online through the Online Billing Center.

iii. Allegiance Merchant Services will receive authentication data from Merchant, and make accounts available for enrollment into the Online Billing Center based on the mutually agreed upon authentication requirements.

iv. Allegiance Merchant Services will provide Online Billing Center summary and detail activity reporting through Patient Pay Online Administration.

v. Allegiance Merchant Services will provide daily payment files from the Online Billing Center through Patient Pay Online in the mutually agreed upon format.

vi. Allegiance Merchant Services will provide web-based training to designated Merchant employees on Online Billing Center usage and administration.

vii. Allegiance Merchant Services will design an email notification for all new enrollees, to be delivered to each enrollee following each new statement or other update to each enrollee’s account.

viii. Allegiance Merchant Services will provide first-level phone and email support for Online Billing Center services. Online support is available for payment processing related issues through Allegiance Merchant Services’s online reporting tools.

d. MERCHANT RESPONSIBILITIES.

i. Merchant will transmit, at its expense, to Allegiance Merchant Services and/or Allegiance Merchant Services’s agents patient financial data in a mutually agreed upon format, for the purpose of displaying patient account information through Patient Pay Online. Merchant shall bear the risk of loss resulting from such transmission. In the event that an additional file is incorporated, Merchant will use the same HIPAA-compliant data communication channel and methodology used to transfer existing patient letter and/or statement data to Allegiance Merchant Services.

ii. Merchant will send Allegiance Merchant Services the patient account information necessary for patient authentication.

iii. Merchant will work in conjunction with Allegiance Merchant Services to establish the static text for the Online Billing Center informational pages.

iv. Merchant will promote usage of the Online Billing Center, including, but not limited to admissions, statement messaging, and other communication vehicles to drive adoption of the Online Billing Center.

v. Merchant will provide enrollment information from its existing merchant processor (if not Allegiance Merchant Services) to Allegiance Merchant Services necessary for integration of the Patient Pay Online Services with Merchant’s systems.

e. PROVISION OF INFORMATION. Merchant shall promptly provide all identifying information and technical data as necessary or otherwise requested by Allegiance Merchant Services in order to provide the Patient Pay Online Services and for Allegiance Merchant Services to comply with all applicable Law, including all regulations and operating rules of any credit card association, the National Automated Clearinghouse Association, or any other authority governing the receipt or provision of the Patient Pay Online Services.

f. RESPONSIBILITY FOR PAYMENT AMOUNT/FEES. Merchant agrees that, with respect to the Patient Pay Online Services provided hereunder, Merchant shall be fully liable for the underlying amount of any Transactions processed by Allegiance Merchant Services that are charged back or for which final settlement does not occur. Merchant shall be fully liable for any fees, adjustments, NSF or other charges, fines, assessments, or other penalties imposed upon Allegiance Merchant Services with respect to such Transactions. Allegiance Merchant Services is hereby authorized to offset and to debit via ACH from a designated Merchant account the underlying amount of any such Transactions and any fees related thereto.

5. PATIENT BILLING SERVICES.

a. SERVICE OFFERING. The Patient Billing Services provide design, processing, printing and mailing of statements including postal pre-sorting and United States Postal Service (“USPS”) delivery as well as design, setup and implementation of electronic patient statements.

b. DUTIES OF ALLEGIANCE MERCHANT SERVICES.

i. Pursuant to the terms and conditions of this Section F(5) and the Agreement, Merchant hereby agrees to purchase and Allegiance Merchant Services hereby agrees to provide to Merchant the Patient Billing Services selected on the Transend Services Merchant Application. In furtherance thereof, Allegiance Merchant Services will develop and maintain a file delivery method to enable delivery of such selected Patient Billing Services. In addition, Allegiance Merchant Services will provide the necessary programming, forms management, laser printing, folding, inserting and delivery to the USPS (including pre-sorting and first class postage). Allegiance Merchant Services will manage the accuracy of Merchant’s customers’ addresses via Allegiance Merchant Services’s standard address correction and suppression procedures.

ii. Merchant shall pay Allegiance Merchant Services the fees for Patient Billing Services (including the Document Archive Services and/or electronic document delivery services, if selected) as set forth on the Transend Services Merchant Application.

c. DUTIES OF MERCHANT.

i. Merchant will assist Allegiance Merchant Services with interface development, either by allowing access to Merchant’s information system or by providing Allegiance Merchant Services with all necessary data requested by Allegiance Merchant Services. Merchant may be required to provide Allegiance Merchant Services with technical assistance during interface setup and custom programming development.

ii. Merchant agrees to provide data in an agreed upon format. Major file layout changes may require an amendment to this Section F(5), or issuance of a new agreement. Allegiance Merchant Services reserves the right to bill the Merchant at Allegiance Merchant Services’s then prevailing rate for any modifications to the original data file layout or other account maintenance performed by Allegiance Merchant Services after Allegiance Merchant Services’s receipt of Merchant’s first live file data transmission. Allegiance Merchant Services will provide Merchant a written quotation of any such modification fees. Any variance from the agreed upon format may require manual intervention and lead to processing delays.

iii. Merchant agrees to deposit with Allegiance Merchant Services one (1) month’s postage in advance, based upon Merchant’s estimated monthly statement volume, according to the Postage Deposit Formula outlined on the Transend Services Merchant Application. Merchant agrees that Allegiance Merchant Services will not be required to commence the Patient Billing Services until Allegiance Merchant Services has received the full postage amount. Merchant agrees to pay for any postal increases instituted by the USPS. Merchant agrees to pay for additional postage required for any mail pieces in excess of one
(1) oz. Any postage deposit amount remaining after the last mailing and after payment for any unused preprinted material will be returned to Merchant within thirty (30) days following Allegiance Merchant Services’s receipt of written request for refund from Merchant, provided that all amounts then due to Allegiance Merchant Services are paid by Merchant in full. Merchant agrees Allegiance Merchant Services shall have a right of offset against the postage deposit for application to any outstanding invoice in connection with final payment.

iv. Merchant acknowledges and agrees that Merchant is solely responsible for complying with all USPS regulations, including, without limitation, the Move Update requirements, as defined by USPS, that allow Merchant to receive USPS presort mail discounts (e.g. utilizing a USPS approved national change of address product or service to update Merchant’s mailing lists and regularly updating Merchant’s mailing lists based on information provided to Merchant by the change of address product or service Merchant utilizes). In addition, Merchant shall provide Allegiance Merchant Services with an annual certification stating that Merchant is in compliance with the foregoing obligations. Merchant acknowledges that Merchant’s failure to comply with applicable USPS regulations, including, but not limited to, failure to use an appropriate postal endorsement and a Move Update compliant method to verify addresses, may result in USPS fines, penalties, assessments or increased postage rates (i.e., loss of pre- sort mail discounts), any and all of which will be charged to and payable by Merchant. In addition, Merchant shall pay upon demand from Allegiance Merchant Services any fines, penalties or assessments levied against Allegiance Merchant Services by USPS arising from Merchant’s failure to comply with applicable USPS regulations, including but not limited to failure to use an appropriate postal endorsement and a Move Update compliant method to verify addresses. In the event that Merchant has selected the NCOALink Service from USPS, Merchant shall be deemed to have satisfied the requirement that Merchant use a USPS approved national change of addres product or service.

v. Merchant will give Allegiance Merchant Services at least thirty (30) days’ advance written notice for changes to, or discontinuation of, any custom preprinted material and agrees to purchase or use any preprinted material in the event of format changes or canceling of contract. Preprinted material will not exceed a three (3) month supply, based on average usage, and Merchant will be contacted upon each reordering cycle to confirm preprinted format.

vi. Merchant will pay Allegiance Merchant Services for the Patient Billing Services in accordance with the pricing outlined on the Transend Services Merchant Application.

vii. In the event that any document received from Merchant and processed through the Patient Billing Services is not accurate solely as a result of Allegiance Merchant Services’s failure to perform the Patient Billing Services in accordance with the terms of this Section F(5), and such failure results in damage to Merchant, then Allegiance Merchant Services’s sole obligation and liability to Merchant for such event shall be limited to re-printing and, if applicable, re-mailing the inaccurate document. Any claim under this Section must be asserted by Merchant in writing within sixty (60) days after the mailing of the inaccurate information on which such claim is based. Merchant further agrees that Allegiance Merchant Services shall not be liable in any way for any inaccuracy which can be attributed to or demonstrated as resulting from errors or omissions or negligent, wrongful or other acts of Merchant, Merchant’s affiliates or any of their respective employees, representatives or agents.

d. RETURN MAIL MANAGER SERVICE OFFERING. The Return Mail Manager Service automates the skip tracing process of undeliverable mail eliminating 100% of return mail handling. Eligible items are automatically remailed and detailed reporting of the status of each account is provided. Pursuant to the terms and conditions of this Section F(5) and the Agreement, Merchant hereby agrees to purchase, and Allegiance Merchant Services hereby agrees to provide to Merchant, the Return Mail Manager Services. Merchant hereby grants Allegiance Merchant Services authority to process and redistribute documents that are returned to Allegiance Merchant Services via the Return Mail Manager Services. The Return Mail Manager Services consist of the receipt, data harvesting, integrated skip tracing, reprinting, and re-mailing of any document identified as having a verifiable new address by Allegiance Merchant Services’s skip tracing vendor. In addition, the Return Mail Manager Services consist of the receipt, data harvesting, integrated skip tracing, and categorization as undeliverable any document identified as having an address that cannot be identified as having a verifiable new address. Allegiance Merchant Services agrees to provide web-based reporting of the results of the Return Mail Manager Services, including newly identified address information and categorization of each returned mail piece as either “Active” or “End of Life”.

e. RETURN MAIL MANAGER PRICING OF SERVICES. During the term of this Agreement, Allegiance Merchant Services hereby agrees to perform the Return Mail Manager Services for Merchant for the fees set forth on the Transend Services Merchant Application. The price for printing and mailing the document with the verifiable new address will be as set forth on the Transend Services Merchant Application. A document is defined as “handled” when it is returned by the USPS to Allegiance Merchant Services’s return mail processing center. A document is defined as having a verifiable new address when a positive match is identified and reported by Allegiance Merchant Services’s skip tracing vendor. All positive matches must contain an exact match of the social security number provided by Merchant and an absence of any previous match to this same address in the previous ninety (90) days.

6. PATIENT VOICE PAY SERVICES.

a. SERVICE OFFERING. Pursuant to the terms and conditions of this Section F(6) and the Agreement, Merchant hereby agrees to purchase and Allegiance Merchant Services hereby agrees to provide Merchant with the following services: (a) development of a branded telephonic payment acceptance system integrating Merchant patient financial data, (b) management and hosting of this payment acceptance system, (c) reporting and administration for this payment acceptance system, (d) integration of this payment acceptance system with Allegiance Merchant Services to facilitate (i) Credit Card and Debit Card payments and (ii) eCheck transactions (collectively, the “Patient Voice Pay Services”). Allegiance Merchant Services will customize all spoken text components of the payment acceptance system, including the naming convention and presentation of account data.

b. FEES. Merchant shall pay Allegiance Merchant Services an implementation fee for the Patient Voice Pay Services as set forth on the Transend Services Merchant Application. This fee includes designation of an inbound toll-free telephone line for Merchant use, and setup of the initial scripts and workflows.

This amount shall be billed during the implementation phase.

c. ALLEGIANCE MERCHANT SERVICES RESPONSIBILITIES.

i. Allegiance Merchant Services will provide an inbound toll-free telephone line to enable Merchant’s patients to access and to pay their accounts through the Patient Voice Pay Services.

ii. Allegiance Merchant Services will receive authentication data from Merchant, and make accounts available for payment acceptance through the Patient Voice Pay Services based on the mutually agreed upon authentication requirements.

iii. Allegiance Merchant Services will provide summary and detail activity reporting through the Patient Voice Pay Services.

iv. Allegiance Merchant Services will provide daily payment files for all payments received through the Patient Voice Pay Services in a mutually agreed upon format.

v. Allegiance Merchant Services will provide phone and email support for Patient Voice Pay Services during its normal business hours. Online support is available for payment processing related issues through Allegiance Merchant Services’s online reporting tools.

d. MERCHANT RESPONSIBILITIES.

i. Merchant will transmit, at its expense, to Allegiance Merchant Services and/or Allegiance Merchant Services’s agents, patient financial data in a mutually agreed upon format, for the purpose of conveying and verifying patient account information through the Patient Voice Pay Services. Merchant shall bear the risk of loss resulting from such transmission. In the event that an additional file is incorporated, Merchant will use the same HIPAA-compliant data communication channel and methodology used to transfer other data to Allegiance Merchant Services.

ii. Merchant will send Allegiance Merchant Services the patient account information necessary for patient authentication. Authentication information shall be made up of any two (2) provided data elements, including, but is not limited to, patient date of birth, social security number, medical record number, patient account number and/or guarantor account number.

iii. Merchant will work in partnership with Allegiance Merchant Services to establish the spoken text scripts for the Patient Voice Pay Services.

iv. Merchant will develop a campaign through admissions, statement messaging, and other communication vehicles to drive adoption and usage of the Patient Voice Pay Services.

v. Merchant will provide Allegiance Merchant Services with all information needed by Allegiance Merchant Services for integration through Allegiance Merchant Services.

e. PROVISION OF INFORMATION. Merchant hereby acknowledges that the Patient Voice Pay Services incorporate Allegiance Merchant Services’s ACH processing services. Merchant shall promptly provide all identifying information and technical data as necessary or otherwise requested by Allegiance Merchant Services in order to provide the Patient Voice Pay Services and for Allegiance Merchant Services to comply with all applicable Law, including all regulations, and operating rules of any credit card association, the National Automated Clearinghouse Association, or any other authority governing the receipt or provision of the Patient Voice Pay Services.

f. RESPONSIBILITY FOR PAYMENT AMOUNTS/FEES. Merchant agrees that, with respect to the Patient Voice Pay Services provided hereunder, Merchant shall be fully liable for the underlying amount of any Transactions processed by Allegiance Merchant Services that are charged back or for which final settlement does not occur. Merchant shall be fully liable for any fees, adjustments, NSF or other charges, fines, assessments, or other penalties imposed upon Allegiance Merchant Services with respect to such Transactions. Allegiance Merchant Services is hereby authorized to offset and to debit via ACH from a designated Merchant account the underlying amount of any such Transactions and any fees related thereto.