Revision 01.22.24 brz/p
Your license of, access to and use of any of the features, products and services of the Payment Processing Services in conjunction with Yardi Breeze or Yardi Breeze Premier (collectively, “Yardi Breeze”) is by this agreement between you and Yardi Systems, Inc., a California corporation (“Yardi”) AND by the agreements between you and the third parties providers whose terms are included below. For good and valuable consideration including the rights and obligations of the parties in the TOU and this Payment Processing Services Terms of Use (the “Agreement” or the “PPS TOU”), you acknowledge and agree as follows:
IF YOU QUALIFY FOR AND USE THE PAYMENT SERVICES TO PROCESS CREDIT CARD OR DEBIT CARD TRANSACTIONS, YARDI IS ENTERING INTO THE PAYMENT PROCESSING TERMS ON BEHALF, AND AS AN AGENT, OF THE APPLICABLE ACQUIRER. THESE PAYMENT PROCESSING TERMS MAY BE UPDATED AND REVISED ONLINE FROM TIME TO TIME AND YOUR CONTINUED USE OF PAYMENT SERVICES CONSTITUTES YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THE MOST CURRENT VERSION OF THE PPS TOU IN ITS ENTIRETY.
1. Payment Services
a. You may select the types of Transactions available to Users from among the available configurations within Yardi Breeze. Please note that depending on the software you license, some Transactions may not be available to you.
b. Transactions and Sweeps.
i. All Transactions shall be settled through Yardi’s master merchant account with Yardi’s ACH Processor. You agree to the terms of service of the ACH Processor, available at https://discover.jackhenry.com/legal/epsmerchantprocessing and incorporated herein by this reference (the “ACH Processor TOS”).
ii. You will receive ACH transfers from your sponsored or sub-merchant account to Yardi’s master merchant account to the bank account you specified during the configuration process as follows:
1. for MasterCard, Visa and Discover credit card funds, within four business days after such Transaction(s);
2. for American Express credit card funds, on the fifth business day after such Transaction(s); and
3. for all debit card and any other Transaction funds (including ACH Transaction funds), within four business days.
iii. If you elect to use a TPPS, the TPPS will be your agent for the delivery of Transactions to all applicable Payment Networks. You agree to assume full responsibility and liability for any failure of such agent to comply with the applicable Payment Network Rules.
c. Payment. Within Yardi Breeze, Payment of Fees is the responsibility of the User and these Fees will not appear in your general ledger.
d. Transaction Limits. Yardi establishes Transaction limits in its sole discretion. Limits are established to conform with your payment activity and to mitigate the risk associated with funds transfers.
e. Chargebacks. You acknowledge and agree that you are fully liable for all charges, Chargebacks, disputes and other customer service issues relating to Transactions made via Payment Services.
f. Withholdings. Yardi reserves the right to withhold from settlement any amount of payments due to Yardi in anticipation of any liabilities, damages, Fees, Chargebacks, refunds and other reversal fees, fines, penalties and other amounts owed by you to Yardi. Yardi may retain such withholding until the underlying amounts owed have been paid, or until any other breach of these Payment Processing Terms has been cured or the risk has been mitigated to Yardi’s reasonable satisfaction. Yardi’s right to withhold includes:
i. if you, after a written warning, repeatedly fails to meet its obligations under the Payment Processing Terms
ii. if you experience a significantly elevated level of Chargebacks, returns or complaints relative to historic figures;
iii. if Yardi reasonably suspects that your financial situation has deteriorated significantly; or
iv. in the event of the cancellation or termination of Yardi Breeze or any other products or services for which you are responsible for making payments to Yardi, until all amounts due are satisfied.
g. Setoff. Yardi may, in its sole discretion, offset any amounts owed to you against any claims Yardi may have against you.
2. Client Representations, Warranties and Obligations
a. Your Authorizations. You authorize: (i) Yardi to accept on your behalf any Payment Network-branded card or other payment method that Yardi makes available to you, in its sole discretion, to Users through the Payment Services, to submit charges on such payment methods on your behalf, and to receive settlement from the applicable Payment Network for authorized charges, each in accordance with the applicable Payment Network Rules; and (ii) a Payment Network or Acquirer to establish a reserve against you in the event you are designated as the recipient for payments directly from a Payment Network or the Acquirer. You acknowledge that Yardi’s approval of your use of the Payment Services is always subject to the approval of the Acquirer or a Payment Network.
b. Compliance. You represent that you are a qualified individual or legitimate business and warrant that you will use the Payment Services only for legal purposes and in compliance with all Applicable Law, Payment Network Rules (including any Payment Network Rules specific to your business or industry), the Payment Processing Terms, and any other Yardi policy, procedure or other requirement relating to the Payment Services (including any policies against restricted or prohibited goods or services), as each may be amended from time to time.
c. User Relations and Customer Service. You shall maintain customer service information that is readily available for review by Users in accordance with Applicable Law and Payment Network Rules, including: (i) clear instructions on how Users may contact you (such as via an active customer service email address and telephone number); and (ii) refund policies that are clearly and conspicuously disclosed to the User.
d. Prohibited Acts. You will not: (i) take any action that results or may result in a significant circumstance that creates harm or loss of goodwill to any Payment Network, Acquirer or Yardi; (ii) accept, and will ensure that your Users do not initiate or deposit, any Transactions that you know or should have known to be either fraudulent, not authorized by the User, or made on behalf of or redirected to another party; (iii) transfer or attempt to transfer your financial liability by asking or requiring Users to waive their dispute rights; or (iv) bill for or collect from any User any payments made by the User through the Payment Services unless a Chargeback has been exercised, you have fully paid for the charge, and you otherwise have the right to do so; and (v) permit Transactions that involve payments between and among your partners, investors and other third parties not affiliated with rent and tenancy related payments.
e. Your Portal Content. With respect to any content or trademarks provided by you for use in connection with any Portal, you represent and warrant that you have all necessary right, title, and/or interest in and to any such content or trademarks, and agree to defend, indemnify and hold Yardi harmless from and against any claims, damages or losses resulting from a breach of the foregoing representation and warranty.
f. Your Duty to Inform. For anti-money laundering and other lawful purposes, you agree to immediately notify Yardi:
i. regarding circumstances concerning you, your parent or subsidiary, your Affiliate, or any of your owners that result in or pose a significant risk to your financial status;
ii. about changes relating to your address, management, board or other changes having a significant effect on your ownership structure;
iii. if there are any material changes with regard to the type of products or services you offer as reported to Yardi in your Yardi Breeze registration or any other registration or application, or if the name or tax identification number under which you conduct business changes; or
iv. if there are any other material changes relating to you or your activities.
3. Payment Networks
a. Payment Network Rules. You acknowledge that Transactions are governed by the applicable Payment Network Rule. In the event of any conflict between a Payment Processing Term and a Payment Network Rule, the Payment Network Rule will control. You acknowledge that a Payment Network or Acquirer has the right to enforce the applicable Payment Network Rules and to prohibit Yardi and/or you from engaging in conduct that the Payment Network or Acquirer deems could injure or could create a risk of injury to the Payment Network, including injury to reputation, or that could adversely affect the integrity of the Payment Network’s systems and/or confidential information. You agree not to take any action that could interfere with or prevent the exercise of such right by the Payment Network or Acquirer, or Yardi’s or its Acquirer’s compliance with the Payment Network Rules.
b. Payment Network Marks. You acknowledge that: (i) each Payment Network is the sole and exclusive owner of its respective marks; (ii) you will not contest the ownership of any such marks for any reason; and (iii) the relevant Payment Network may, at any time, immediately and without advance notice, prohibit you from using any of its marks for any reason.
c. Payment Network Liability. You agree to pay all fines, fees, penalties and other assessments or indebtedness levied by a Payment Network to Yardi which are attributable in any way to any act of or omission by you.
d. Direct Acquiring Agreement. In the event you process, or Yardi anticipates that you will process: (i) one million dollars ($1,000,000) or more in Visa transactions (or such other amount as Visa may determine from time to time); or (ii) one million dollars ($1,000,000) or more in MasterCard transactions (or such other amount as MasterCard may determine from time to time), in each case in any 12-month period, you agree that, pursuant to the Payment Network Rules, you will be subject to the terms and conditions of the payment processing agreement with the Acquirer, herein titled “MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS.”
e. Availability of Payment Networks. You acknowledge that the Payment Networks available through the Payment Services may change from time to time and that Yardi may remove any specific Payment Network at any time. Yardi has the right to suspend or terminate a User’s ability to pay you using any or all payment methods, including a specific Payment Network-branded payment device, through the Payment Services: (i) at the direction of the relevant Payment Network, the Acquirer or a governmental authority; (ii) for your failure to comply with the Payment Processing Terms, or (iii) in Yardi’s sole reasonable discretion. Yardi reserves the right to revise, temporarily suspend, discontinue, replace and/or make changes to its Payment Services or any portion thereof, its websites or other User or your interfaces to the Payment Services, in its sole discretion for any reason from time to time and without notice, provided that Yardi will inform you prior to any changes that will materially affect the provision of the Payment Services.
f. Restricted Merchant List. If you violate the Payment Processing Terms or any obligation under the Payment Network Rules, Yardi may report you to the relevant Payment Network’s restricted or terminated merchant database.
4. Information and Data Security
a. Information Requests. You shall promptly provide to Yardi, upon request from time to time during its use of the Payment Services, with all information necessary for Yardi to perform the Payment Services, monitor your activities and use of the Payment Services for the purpose of deterring fraud and other wrongful activities (including site surveys of your physical, electronic or other establishments), perform verification checks (including credit, KYC and AML checks), and to ensure your compliance with the Payment Processing Terms, Applicable Law, and the Payment Network Rules. If you are undergoing a forensic investigation at the time the Payment Processing Terms become effective, you agree to inform Yardi and fully cooperate with the investigation until completed.
b. Information Sharing. You acknowledges that Yardi may share information about you and your Transactions with its Acquirer or a Payment Network (including its affiliates, agents, subcontractors, and employees), and for the Acquirer or Payment Network (including its affiliates, agents, subcontractors, and employees) to use your and any Transaction data to perform its services, operate and promote the Payment Network, perform analytics and create reports, and for other lawful purposes or as permitted under the relevant Payment Network Rules.
c. Data Security. You shall maintain sufficient safeguards to protect any cardholder, Transaction or third-party information in its possession and shall comply with Applicable Laws and Payment Network Rules relating to the security of such information, including the PCI-DSS. Yardi may from time to time request evidence of your compliance with its data security obligations. You may not disclose any User cardholder account, Transaction data or third-party data to any third-party except as permitted under Applicable Law or the Payment Network Rules.
d. Data Use. Yardi may collect, use and retain Data and/or other personal information of Users or Third Parties for the purposes of providing the Payment Services and for reasonable business record retention purposes. Yardi may disclose Data and/or other personal information of Third Parties or Users to third parties as necessary to provide the Payment Services or as permitted or required by Applicable Law or Payment Network Rules.
e. Right to Audit Transactions. ln accordance with Yardi’s obligation to help prevent and detect potentially fraudulent and or suspicious activity, you acknowledge and agree that Yardi may conduct random as well as regular monitoring of individual Transactions or Transaction volume in order to validate that payments are processed and received for legitimate purposes and in accordance with the Terms. Additionally, pursuant to any obligations Yardi has, or may have, concerning the prevention of identity theft, financial fraud, money laundering, terrorist financing etc. Yardi may occasionally need to access your database in order to review individual Transactions and Transaction volume which appear to be anomalous or suspicious.
5. Termination. Upon notice to you, Yardi may immediately terminate your use of the Payment Services upon the occurrence of any of the following:
a. You materially breach the Payment Processing Terms or Payment Network Rules and fails to cure such breach within 7 days (or such other time as directed by Yardi or its Acquirer) of written notice of a material breach (or if you cannot reasonably cure the material breach within such time, fails to continuously and diligently work to cure the breach until the breach is cured);
b. You notify Yardi, or Yardi receives information that indicates, that you do not meet Yardi’s underwriting or creditworthiness requirements;
c. Yardi, in its sole reasonable discretion, determines that your activities are fraudulent, create harm or loss of goodwill to any Payment Network, or are otherwise wrongful;
d. as directed by any Payment Network, the Acquirer or a governmental authority;
e. Yardi is no longer authorized to process Transactions as your payment facilitator or payment service provider; or
f. Your assignee, if authorized by Yardi under the terms of your Yardi Breeze Agreement, does not satisfy Yardi’s underwriting requirements or the sponsored merchant standards under Applicable Law or Payment Network Rules.
6. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD YARDI, ACQUIRER, ANY PAYMENT NETWORK, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS AGENTS, SHAREHOLDERS, AND DIRECTORS HARMLESS FROM ANY AND ALL THIRD PARTY CLAIMS, LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), FINES, PENALTIES REGARDLESS OF WHETHER THE SAME ARE ACTUAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE (“DAMAGES”) RESULTING FROM OR IN CONNECTION WITH THE PAYMENT SERVICES OR INCURRED AS A RESULT OF, OR RELATED TO, THE FOLLOWING CAUSES: (I) YOUR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY UNDER THE PAYMENT PROCESSING TERMS; (II) CLIENT’S VIOLATION OF APPLICABLE LAW OR PAYMENT NETWORK RULES; (III) RECKLESS OR WILLFUL MISCONDUCT BY YOU AND ANY OF YOUR AGENTS, EMPLOYEES, OFFICERS, OR DIRECTORS; (IV) ANY MATERIAL INACCURACIES IN THE INFORMATION YOU PROVIDED TO YARDI; AND (V) ANY INSTRUCTIONS FROM YOU REGARDING THE RELEASE OR HOLDING OF YOUR SETTLEMENT FUNDS.
7. LIMITATION OF LIABILITY. IN ADDITION TO ANY OTHER LIMITATIONS SET FORTH IN THE TERMS OR ANY OTHER AGREEMENT WITH YARDI, IN NO EVENT SHALL YARDI, ACQUIRER, ANY PAYMENT NETWORK OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS, OR PERMITTED ASSIGNS BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES. NEITHER YARDI, ACQUIRER, CLIENT NOR ANY PAYMENT NETWORK WILL BE RESPONSIBLE TO THE OTHER FOR DAMAGES ARISING FROM DELAYS OR PROBLEMS CAUSED BY TELECOMMUNICATIONS CARRIERS OR THE BANKING SYSTEM, EXCEPT THAT YARDI, ACQUIRER AND THE PAYMENT NETWORKS RIGHTS TO CREATE RESERVES AND EXERCISE CHARGEBACKS WILL NOT BE IMPAIRED BY SUCH EVENTS. IN ADDITION TO ALL OTHER LIMITATIONS SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT YARDI SHALL HAVE NO LIABILITY WHATSOEVER EXCEPT IN THE EVENT OF A CLAIM OR CAUSE OF ACTION ARISING OUT OF OR CONNECTED WITH THESE TERMS FOR WHICH YARDI WAS THE SOLE CAUSE, AND THAT YARDI’S MAXIMUM LIABILITY TO YOU, REGARDLESS OF THE AMOUNT OF LOSS YOU MAY CLAIM OR HAVE SUFFERED, SHALL BE LIMITED TO A REFUND OF THE FEES YOU ACTUALLY PAID TO YARDI IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE YOU FIRST NOTIFY YARDI OF YOUR CLAIM. THIS REFUND IS YOUR SOLE AND EXCLUSIVE REMEDY.
8. Additional Terms
a. American Express Additional Terms. With respect to American Express Transactions, you agree to the terms and conditions set forth in the AMEX MOG, available at www.americanexpress.com/merchantopguide and other similar terms that maybe published by American Express, which are incorporated herein by this reference.
b. ACH Additional Terms. With respect to ACH Transactions, you agree to the ACH Processor TOS and the additional NACHA obligations set forth in Attachment A attached to the Payment Processing Terms incorporated herein.
c. Bill-Pay Payment Additional Terms. With respect to Bill-Pay Payments and BPX Payments, you agree to the additional terms set forth in Attachment B attached to the Payment Processing Terms incorporated herein and also the JHA MONEY CENTER PROCESSING SERVICES AGREEMENT incorporated herein.
d. Utility Expense Management Setup. If you obtain utility billing or utility expense management related services from YES Energy Management, Inc. or its affiliated companies, you may engage Yardi to perform certain Payment Services associated with such utility billing services. You authorize Yardi to setup and configure records for utility billing vendors and update such vendor ACH account information as needed. You acknowledge and agree that it is your sole responsibility to ensure and verify the accuracy of ACH account information, irrespective of whether your or Yardi, at your direction, makes such changes.
e. Walk-In Rent Collection/Rent Payment Services (WIPS®). If you elect to use the WIPS service, then you acknowledge and agrees to the following terms:
v. You will pay all fees and other charges, including any statement, service, Chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of your Transactions.
vi. You must do one of the following: (i) utilize a banking institution that is supported by Yardi; (ii) secure the agreement of your banking institution to work with Yardi in interfacing WIPS with your banking institution (in which case reasonable time will be necessary to complete the interface in light of the interface requirements); or (iii) sign-up for, and utilize, Yardi’s ACH Processors’ banking institution processing services.
vii. CheckFreePay is a Third Party vendor and licensed money transmitter and is solely responsible for its network of agents (the “Agents”). You further acknowledge and agree that among various other unrelated business transactions: (i) Agents accept cash-only rent payments from WIPS Users in exchange for a nominal convenience fee (for purposes of this Agreement, each cash payment remitted by a User through WIPS, less the Agent’s convenience fee, is referred to as a “Payment”); and (ii) Yardi does not collect rent directly from any User through WIPS and has no control over the Agents or CheckFreePay’s Agent network.
viii. The User, not the Agent, determines how much rent to pay using WIPS. Because the Agent will accept whatever cash sum the User desires to pay and will charge a convenience fee each time a payment is made, the Payment(s) made by a User to the Agent may be less than, equal to, or greater than the total rent due. Accordingly, you acknowledge and agree that the rent payment subsequently reflected in the software and ultimately credited to your account may be an under- or over-payment of the User’s rent. Except to the extent such under- or over-payment is caused solely by Yardi’s negligence or willful misconduct, you expressly acknowledge and agree that the payment of rent is a matter between you and User and you agree to defend, indemnify and hold Yardi harmless from and against any third party (including User) claims relating to or arising out of the use of WIPS.
ix. Typically, the software will reflect each Payment within 1 business day and each Payment will be credited to your designated account within 4 business days. Because delays may arise from time to time, these are targets and not guarantees; however, so long as you provide all necessary and correct Payment Processing information to enable Yardi to properly facilitate the routing of Payments from the Agent to you, Yardi has the appropriate guarantees from CheckFreePay that CheckFreePay will promptly and accurately deliver to you all Payments made using WIPS.
x. You expressly acknowledge and agree to the following Office of Foreign Asset Control (OFAC) obligations:
1. You shall not use WIPS, or allow WIPS to be used, for any purpose other than the payment of rent and related charges by Users who physically occupy the dwelling for which the rent payment or related charges apply.
2. You shall at all times comply with all OFAC requirements and fulfill all OFAC responsibilities that apply to you concerning the administration and enforcement of economic and trade sanctions against targeted foreign states, organizations, and individuals, including providing any information to Yardi that is reasonably necessary for Yardi to fulfill its obligations under OFAC, if any.
3. If at any time you discover or reasonably believe a User, employee or organization on the Specially Designated Nationals and Blocked Persons List, published from time to time by OFAC (the “OFAC List”), is using WIPS for any reason, you shall immediately notify Yardi and cooperate fully with any subsequent investigation or request for information that may be required in connection with complying with OFAC requirements and all other applicable laws and regulations.
4. Except to the extent an OFAC violation arises solely as a result of Yardi’s gross negligence or willful misconduct, you agree to defend, indemnify and hold Yardi and its parent, subsidiaries, directors, officers, agents, representatives, and employees harmless from all claims, losses, penalties and other liabilities relating to or arising out of any acts or omissions by you and your parent, subsidiaries, directors, officers, agents, representatives, Users or employees that give rise to an OFAC violation.
xi. If you utilize Yardi’s master merchant account with its ACH Processor for WIPS Transactions: (i) you may only process User rent payment WIPS Transactions through Yardi’s master merchant account with ACH Processor; and (ii) you agree that Yardi may satisfy reimbursement for any fees and other charges, including any statement, service, Chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of your WIPS Transactions from subsequent deposits to the corresponding bank account.
9. Miscellaneous
a. Amendments to the Payment Processing Terms. Yardi may amend the Payment Processing Terms at any time in its sole discretion, including when such changes are required by Applicable Law, a Payment Network Rule, Acquirer, Third Party payment processor contractual obligations or any other legal, regulatory, contractual or other requirement imposed by regulatory authority, payment processing institution, correspondent bank, merchant bank or any other entity involved in any way, whether directly or indirectly, with Payment Processing.
b. Third Party beneficiaries. The Payment Processing Terms are intended for the sole and exclusive benefit of you and Yardi and are not intended to benefit any Third Party except as otherwise expressly provided in the Payment Processing Terms; provided, however, that the benefits, but not the obligations, arising from the Payment Processing Terms shall be conferred to a Payment Network to the extent required by that Payment Network, which grants such Payment Network the right to enforce relevant terms of the Payment Processing Terms against you.
c. Liens. You acknowledge and agree that Yardi shall have no obligations to act on or forward to you any lien notice it may receive regarding debts you owe to any third party.
10. Definitions
“ACH” means a nationwide funds transfer network that enables participating financial institutions to electronically credit, debit and settle entries to bank accounts.
“ACH Processor” means the ACH processor and originator who has contracted with Yardi to process ACH Transactions, which is currently Jack Henry & Associates, Inc., ProfitStars Division, located at 663 West Highway 60, Monett, MO 65708.
“Acquirer” means (i) with respect to Transactions initiated with an American Express-branded payment method, American Express Travel Related Services Company, Inc., located at 3 World Financial Center, 200 Vesey Street, 49th Floor, New York, NY 10285, (ii) with respect to ACH Transactions, the ACH Processor, and (iii) with respect to all other Transactions, a member bank that has contracted with Yardi to provide Payment Services and which is licensed to participate in the card acceptance programs affiliated with Visa, MasterCard, Discover and other Payment Networks that enable Users to purchase goods and services.
“Applicable Law” means: (i) any applicable law, statute, regulation, ordinance, or subordinate legislation to which you or Yardi or an Affiliate of either is subject; (ii) any court order, judgement, or decree that is binding on you or Yardi or an Affiliate of either of us; and (iii) any directive, policy, rule, or order that is binding on you or Yardi or an Affiliate of either of us and that is made or given by a regulator or other government or government agency of any territory, or other national, federal, commonwealth, state, provincial, or local jurisdiction.
“Chargeback” means a Transaction that is disputed at the request of either the User or the User’s card issuer. A Chargeback will cause the amount of the original sale and a Chargeback fee to be deducted from your bank account.
“Check 21” means the Check for the 21st Century (Check 21) Act and all regulations pertaining to the Check 21 Act.
“Data” means bank account, credit card, debit card and other personal information in respect of Users, Third-Parties and you obtained by Yardi in order to process Transactions or Yardi Bill-Pay Payments.
“Including”or “includes” are not limiting and mean including, but not limited to.
“Payment Network” means Visa USA, Inc. (“Visa”), MasterCard International, Inc. (“MasterCard”), Discover Financial Services, LLC, American Express Travel Related Services Company, Inc. (“American Express”), the National Automated Clearing House Association or any other regional ACH used to process ACH Transactions (“NACHA”), their affiliates, and such other payment card networks, brands and associations that Yardi may make available through the Payment Services from time to time.
“Payment Network Rules” means the written rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted, and as amended from time to time, by the relevant Payment Network. The term “Payment Network Rules” includes, but is not limited to, the:
· Visa Core Rules and Visa Product and Service Rules available at https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf
· MasterCard’s Rules and Transaction Processing Rules available at https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html
· Amex MOG available at www.americanexpress.com/merchantopguide, and
· NACHA Operating Rules and Guidelines, as such rules may be amended from time to time, as may be applicable.
“Payment Processing” means each Transaction or Yardi Bill-Pay Payment processed.
“Payment Services” means Yardi’s online payment and payment processing services with respect to Bill-Pay Payments and User charges made using Payment Network-branded payment methods and ACH methods.
“PCI-DSS” means the Payment Card Industry Data Security Standard.
“Portal” means the Yardi Card Services system, which is a payment-only portal to which Users are redirected when using RENTCafé, COMMERCIALCafé, or CONDOCafé and through which Users have the option to make payments through an online payment channel.
“Yardi Breeze Agreement” means the agreement between you and Yardi authorizing you to use Yardi Breeze.
ATTACHMENT A – ACH PAYMENTS TERMS OF USE
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Capitalized terms used in this Attachment A that are not defined below shall have the meaning defined in the PPS TOU.
1. Definitions. The following additional definitions will apply to this section on ACH Payments.
a. “ACH Payment” means a debit Entry to a User’s bank account authorized by such User through the Payment Services.
b. “Entry” has the meaning set forth in the NACHA Rules.
c. “NACHA Rules” means the operating rules and guidelines of the National Automated Clearing House Association or any other regional ACH used to process payments via the Payment Services, as such rules are in effect from time to time.
d. “Originating Depository Financial Institution” or “ODFI” has the meaning set forth in the NACHA Rules.
e. “Originator” has the meaning set forth in the NACHA Rules. For purposes of ACH Payments, you are deemed an Originator.
f. “Receiving Depository Financial Institution” or “RDFI” has the meaning set forth in the NACHA Rules.
g. “Receiver” has the meaning set forth in the NACHA Rules. For purposes of ACH Payments, User is deemed a Receiver.
2. ACH Payments.
a. Acknowledgements; Representations and Warranties. You acknowledge that: (i) you are an Originator with respect to each ACH Payment, (ii) you agree to assume the obligations and responsibilities of an Originator under the NACHA Rules, and (iii) you represent and warrant that ACH Payments shall be exclusively for payments owed to you by Users, and not for payments by Users to third parties. You understand that the ACH Payment will be transmitted through the ACH, and your rights and obligations concerning an ACH Payment will be governed by, and construed in accordance with the Payment Processing Terms. You further acknowledge that it will not originate, and will not permit or cause Users to authorize, ACH Payments in violation of the laws of the United States, including, without limitation, the sanctions, laws, regulations and orders administered by OFAC, FinCEN and any state laws, regulations or orders applicable to ACH Payments. You agree to comply with the NACHA Rules and represents and warrants that it has read and understands all NACHA Rules (inclusive of amendments) applicable to you.
b. Authorizations. For User to initiate an ACH Payment to you, Yardi will obtain, on your behalf and for your benefit, an authorization from User that authorizes Yardi and ODFI to initiate the ACH Payment. Yardi is not responsible for the content of a User’s authorization, including the accuracy of payment amounts or bank account information as provided by the User. You acknowledge that once submitted, the authorization may not be amended or modified. Yardi will promptly notify you of any ACH Payment that Yardi, the ODFI or the ACH rejects, or of any ACH Payments that are rejected or returned by the RDFI or the ACH, but will not remake or represent such rejected or returned ACH Payments. Once an ACH Payment has been initiated, Yardi does not have an obligation to honor any request for a stop payment, correction, reversal or recall of the ACH Payment. However, Yardi may, in its sole discretion, use reasonable efforts to act on your request to cancel, amend or reverse an Entry before transmitting to the ACH network or processing it as an on-us Entry. Yardi shall have no liability if it fails to affect such requests
c. Additional Rights. Yardi or its ODFI (i) may terminate or suspend your ability to originate ACH Payments for breach of the NACHA Rules in a manner that permits Yardi or the ODFI to comply with the NACHA Rules and (ii) may audit you for compliance with the NACHA Rules.
ATTACHMENT B – YARDI BILL-PAY PAYMENTS ADDITIONAL TERMS OF USE
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Capitalized terms used in this Attachment B that are not defined below shall have the meaning defined in the PPS TOU.
1. Definitions. The following additional definitions will apply to this section on Yardi Bill-Pay Payments and BPX Payments:
a. “ACH Bill-Pay Payments” means a payment made through the ACH payment processing services provided by Yardi pursuant to these Payment Processing Terms and (if applicable) JHA MC pursuant to the JHA Terms.
b. “Banking Institution” means the institution you elected to send Payment Instructions to in the case that the institution is not JHA MC.
c. “BPX Payments” means a payment made to a Third Party pursuant to a Payment Instruction submitted by you to Yardi under Yardi Bill-Pay Express.
d. “Check Bill-Pay Payments” means a payment made by the Check 21 payment services provided by Yardi and (if applicable) JHA MC pursuant to these Payment Processing Terms.
e. “JHA Terms” means the JHA MONEY CENTER PROCESSING SERVICES AGREEMENT between you and JHA Money Center, Inc. (“JHA MC”), herein, which govern the processing of ACH Bill-Pay Payments.
f. “Payment Instruction” means a data file created by you through Yardi’s Payment Processing system that expressly authorizes: (a) with respect to Check Bill-Pay Payments, the creation of a paper or electronic draft, signed in your name or by Yardi on your behalf as your authorized agent or representative, in the amount and payable to the Third Party as instructed in the data file, that will draw from your designated bank account upon presentment, and the delivery of such draft to Third Party as directed in the data file, (b) with respect to ACH Bill-Pay Payments, an ACH payment to Third Party’s designated bank account in accordance with the JHA Terms, and (c) with respect to BPX Payment, the payment by Yardi on your behalf as your authorized agent or representative, in the amount and payable to the Third Party as instructed in the data file.
g. “Third Party” means your supplier, vendor or other third party to which you make a Bill-Pay Payment or BPX Payment.
h. “Yardi Card” means Yardi’s one-time VCN generated by partner one-time virtual card number issuer (“VCN Issuer”).
2. General Terms- JHA MC.You agree to the following terms with respect to Bill-Pay Payments made pursuant to Payment Instructions to JHA MC:
a. Acknowledgements. You acknowledge that your ability to make Bill-Pay Payments is subject to review and acceptance of Client by JHA MC (or other replacement Bill-Pay Payments payment processor), and that Yardi’s sole responsibility for Bill-Pay Payments is the receipt and transmission of Payment Instructions from you to JHA MC.
i. With respect to ACH Bill-Pay Payments only, you further acknowledge and agree that: (i) the JHA Terms govern the processing of ACH Bill-Pay Payments, (ii) in order to initiate ACH Bill-Pay Payments, you must execute and submit the JHA Terms for review, acceptance and countersignature by JHA MC, and (iii) Yardi is not responsible or liable for any obligations under the JHA Terms or any performance relating to ACH Bill-Pay Payments, other than an obligation required to be performed by Yardi expressly described in the Payment Processing Terms or applicable Yardi policy, procedure or other requirement relating to ACH Bill-Pay Payments. You agree to indemnify and hold Yardi and its respective employees, officer’s agents, shareholders, and directors harmless from any and all Damages resulting from or in connection with the JHA Terms or incurred as a result of, or related to, your breach of the JHA Terms.
ii. With respect to Check Bill-Pay Payments only, you further acknowledges and agrees that (i) JHA MC is providing some of the processing services for Check Bill-Pay Payments, and as a result, JHA MC shall be an intended third party beneficiary of these Payment Processing Terms solely with respect to Check Bill-Pay Payments; (ii) JHA MC shall have the right to enforce directly against you the Payment Processing Terms that relate to Check Bill-Pay Payments and the ownership and protection of the intellectual property rights of JHA MC and its licensors in and to its processing services; and (iii) JHA MC shall have no responsibility or liability with regard to Yardi’s obligations to you under the Payment Processing Terms with respect to Check Bill-Pay Payments.
b. Authorizations. You expressly authorize: (i) Yardi to transmit Payment Instructions to JHA MC, and (ii) Yardi or JHA MC, as applicable, to process the Bill-Pay Payment in accordance with these Payment Processing Terms and, as applicable, the JHA Terms. You acknowledge and agree that all ACH Bill-Pay Payments in an amount exceeding $10,000.00 per transaction will be made by paper check via Check Bill-Pay Payment, for accounts using Yardi’s ACH Processors’ services as the clearinghouse. You acknowledge and agree that Yardi is not responsible for the content of any Payment Instruction (including the accuracy of payment amounts, bank account information, Third Party account numbers, or any other information you provide) and that you are solely responsible for the accuracy of all information and instructions provided to Yardi. You acknowledge that once submitted, a Payment Instruction may not be amended or modified, except (with respect to ACH Bill-Pay Payments) as may be permitted under the JHA Terms.
c. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify you of any Bill-Pay Payment that may be rejected or returned by JHA MC, Third Party, or Third Party’s bank, but will not remake or represent such rejected or returned Bill-Pay Payment. Once a Bill-Pay Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the Bill-Pay Payment except (with respect to ACH Bill-Pay Payments) as may be permitted under the JHA Terms. You will reimburse Yardi immediately within two days for any losses arising directly or indirectly from any of the foregoing and will pay Yardi any fee applicable to a returned or rejected Bill-Pay Payment in accordance with the Payment Processing Terms.
d. Insufficient Funds. Any insufficiency of available funds in your bank account with respect to a Bill-Pay Payment may result in a delayed payment or non-payment to the designated Third Party. Yardi is not responsible for such delays or non-payment or for any related fees assessed by Third Party or your bank, including but not limited to late payment fees or Third Party or bank fees charged for insufficient funds.
e. Right to Suspend or Terminate Bill-Pay Payments. Yardi (i) may immediately terminate or suspend your ability to make Bill-Pay Payments or submit Payment Instructions due to your breach of the Payment Processing Terms, JHA Terms or Applicable Law, or at the direction of JHA MC; and (ii) may audit you for compliance with the Payment Processing Terms or Applicable Law with respect to Bill-Pay Payments.
3. General Terms – BPX Payments.
a. Payment Methods. The payment method used to make a BPX Payment to a Third Party (ACH, Yardi Card or Check) will be determined by Yardi in its sole discretion.
b. Acknowledgements. Client acknowledges that Bill-Pay Express (BPX) Payment services are provided by Yardi Payments, LLC (NMLS #1991824) in the following states: AL, AK, AZ, AR, CO, CT, DE, DC, FL, HI, ID, IL, IA, IN, KS, KY, LA, MA, ME, MD, MI, MN, MS, MT, MO, NE, NH, NM, NC, ND,NV, OH, OK, OR, PA, PR, RI, SC, SD, TN, TX, UT, VT, WV, WI, WY. BPX Payment services in the following states are provided by Yardi Systems, Inc.: CA, GA, NJ, NY, VA, WA.
c. Authorizations. Upon receipt of a Payment Instruction from Client, Client authorizes Yardi Payments or Yardi (as applicable) to pull the funds from Client’s account for the BPX Payment. Client expressly authorizes Yardi to determine, in its sole discretion, the payment method to be used to make the BPX Payment to the Third Party. Client authorizes Yardi to share Client’s Payment Instructions and other information with its BPX Payment vendors, including JHA MC (for ACH and Check payments) and VCN Issuer (for Yardi Card payments), in order to process and deliver your BPX Payment. Client acknowledges and agrees that Yardi is not responsible for the content of any Payment Instruction (including the accuracy of payment amounts, or any other information provided by Client) and that Client is solely responsible for the accuracy of all information and instructions provided to Yardi. Client acknowledges that once submitted, a Payment Instruction may not be amended or modified. Yardi does not control if or when the Third Party or the Third Party’s bank will receive, accept or deposit the payment method selected by Yardi for the BPX Payment.
d. Rejections; Returns. Yardi will use commercially reasonable efforts to promptly notify Client of any BPX Payment that may be rejected or returned by JHA MC, Third Party, or Third Party’s bank, but will not remake or represent such rejected or returned BPX Payment. Once a BPX Payment has been initiated, Yardi does not have any obligation to honor any request for a stop payment, correction, reversal or recall of the BPX Payment except (with respect to ACH Bill-Pay Payments) as may be permitted under the JHA Terms.
e. Insufficient Funds. Any insufficiency of available funds in Client’s bank account with respect to a BPX Payment may result in a delayed payment or non-payment to the designated Third Party. Yardi is not responsible for such delays or non-payment or for any related fees assessed by Third Party or Client’s bank, including but not limited to late payment fees or Third Party or bank fees charged for insufficient funds.
4. Representations and Warranties. In addition to any other representations or warranties you have made under these or any other terms and conditions related to Yardi Breeze or any of its related products and services, you further represent and warrant that:
a. Payment Instructions shall be exclusively for payments owed by you to Third Parties, and not be made on behalf of other third parties;
b. You will not make, and will not permit or cause Third Parties to authorize, any Bill-Pay Payment that you know or should have known to be either fraudulent, not authorized by the Third Party, made on behalf of another party, or in violation of Applicable Law;
c. Your bank account identified in a Payment Instruction or otherwise used to fund a Bill-Pay Payment has been established in the United States primarily for business purposes and not for personal, family or household purposes;
d. You will provide complete and accurate information regarding it and its Third Parties’ information (including mailing address and/or bank account);
e. You will execute and maintain a written agreement with each Third Party authorizing you to initiate an ACH Bill-Pay Payment or Check Bill-Pay Payment, as applicable, and that for ACH Bill-Pay Payments, Third Party has authorized you to initiate an ACH credit to Third Party’s designated bank account; and
f. Any such written agreement and authorization have not been terminated or revoked on the date a Payment Instruction is submitted by you to Yardi to initiate a Bill-Pay Payment to the relevant Third Party.
JHA MONEY CENTER PROCESSING SERVICES AGREEMENT
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By registering and using Yardi Breeze, accessing and using the Payment Services, and accessing and using Bill-Pay, you expressly acknowledge, agree to, and accept this JHA MONEY CENTER PROCESSING SERVICES AGREEMENT (this “Agreement”), which is made by and between JHA Money Center, Inc. with its principal place of business located at 663 West Highway 60, Monett, Missouri, 65708 (“JHA MC”), and you, the Customer, effective upon activation of Bill-Pay through Yardi Breeze (the “Effective Date”) and continuing throughout your Initial Term and any subsequent Term (as defined in the Yardi Breeze Terms of Use atYARDI® BREEZE TERMS OF USE and the Yardi Breeze Premier Terms of Use at YARDI® BREEZE PREMIER TERMS OF USE and also on the “Company Settings” screen within Yardi Breeze and Yardi Breeze Premier) so long as you continue to meet all of the requirements of this Agreement.
JHA MC is in the business of providing payment processing solutions and related maintenance and support services. This Agreement establishes the terms and conditions that will apply to the initial transaction and all subsequent transactions which JHA MC and Customer enter into pursuant to this Agreement The parties agree as follows:
1. JHA MC agrees to provide to Customer the payment processing solutions described in this Agreement and any Solution Section or then-current customer processing services price list provided by JHA MC or a JHA MC reseller partner (as the case may be), on the Standard Terms and Conditions appended to and incorporated as a part of this Agreement. Customer agrees to use the JHA MC payment processing solutions in accordance with these Standard Terms and Conditions.
2. Customer understands and acknowledges that the use of payment processing services to facilitate money transmission transactions creates a risk of fraudulent transactions, which may result in the loss of money for Customer with no recourse.
3. Following signature of this Agreement by an authorized representative of Customer, this Agreement will become effective on the date that JHA MC accepts Customer’s application and boards Customer as a customer of the JHA MC processing services as provided in this Agreement the (“Effective Date”). JHA MC’s commencement of its provision of the processing services to Customer shall confirm JHA MC’s acceptance of this Agreement.
Standard Terms and Conditions
1. DEFINITIONS: The following terms used in this Agreement shall have the meaning specified below:
a. “ACH Transaction”: An electronic payment transaction originated by Customer and processed through the ACH Network in the Federal Reserve System.
b. “Administrator”: The Customer’s employee who has been designated as Customer’s primary contact with JHA MC for the Services and has been appointed by Customer to manage the administration of Services access, including passwords, and communicate authorizations to JHA MC.
c. “Confidential Information”: As the context requires, whether disclosed orally or in writing or by any other media: (a) the terms of this Agreement, all information and materials provided by either party to the other party for its use in performing in its responsibilities under this Agreement, including but not limited to information relating to the business, products, processing services, technology and systems of the other party; the intellectual property, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, and inventions of the other party or its licensors; names and expertise of employees and consultants; SSAE16 and other audit reports; and other technical, business, financial, customer and product development plans, forecasts, strategies and information; (b) the trade secrets contained in JHA MC’s Software and Services, and (c) all information and materials, including customer and consumer nonpublic personal information and data, provided by a Customer to JHA MC which is covered by a written agreement and obligation of confidentiality. Confidential Information shall not include information which: (i) is in or (through no improper action or inaction by the party receiving the information (the “Receiving Party”) or any employee or agent thereof) enters the public domain;(ii) was rightfully in its possession or known by the Receiving Party prior to receipt from the party disclosing the information (the “Disclosing Party”); (iii) was rightfully disclosed to the Receiving Party by another person without restriction; (iv) was independently developed by or for the Receiving Party without access to and use of any Confidential Information of the Disclosing Party; or (v) is disclosed as legally required pursuant to a court or regulatory agency order or subpoena, provided that the Disclosing Party is first given a reasonable opportunity to seek a protective order or other legal means for prohibiting or restricting the disclosure of its Confidential Information without appropriate confidentiality obligations.
d. “Courseware”: The end user training courseware and materials relating to the use and operation of the Services and JHA MC’s processing system that JHA MC or a Reseller may provide through classroom training, online training or e-Learning delivery to Customer.
e. “NACHA Rules”: The then-current rules, regulations and procedural guidelines published by the National Automated Clearing House Association (“NACHA”) and/or all regional payment alliances associated with NACHA.
f. “Reseller”: A third party reseller, such as an ISO reseller or Value Added Reseller, appointed and authorized by JHA MC to resell and/or deliver the Services and Courseware to Customer.
g. “Services”: The payment processing services provided by JHA MC to Customer under this Agreement.
h. “Settlement Account”: A commercial demand deposit bank account which Customer has established for JHA MC’s access and use to settle financial payment transactions processed by JHA MC under this Agreement.
i. “Software”: Software programs and associated documentation and materials that JHA MC provides to Customer for use with the Services.
j. “Solution Section” means each segment of Exhibit A that describes a Service or Software that is subject to this Agreement with the associated fees, costs, and any special terms and conditions applicable to the Service or Software.
k. “Transaction”. A payment transaction initiated by Customer and processed by JHA MC.
2. SET-UP AND DELIVERY OF SERVICES:
2.1 In conjunction with this Agreement, Customer has completed and submitted to JHA MC or a Reseller (as applicable) an initial written application and supporting documentation about Customer’s business and financial status, for JHA MC’s consideration in the account set-up and provision of the Services to Customer. Customer acknowledges that JHA MC shall be entitled to rely upon the validity, accuracy and completeness of the information provided by Customer in its application and supporting documentation to JHA MC, for JHA MC’s use in performing its due diligence review of Customer’s status and financial standing for determining (a) if JHA MC will enter into this Agreement with Customer; (b) if JHA MC will provide all or any of the Services to Customer under this Agreement; and (c) the credit and account processing standards and limits that JHA MC will apply to the processing of Customer’s Entries. Subsequent to the initial acceptance and set-up of Customer for JHA MC’s provision of the Services, JHA MC may from time to time request that Customer provide updated information and supporting documentation to JHA MC to confirm Customer’s then-current business and credit status, which Customer shall apply best efforts to deliver to JHA MC within three (3) business days following receipt of JHA MC’s written request. Any failure by Customer to provide the information and supporting documentation requested by JHA MC via the application or by other means within a timely manner shall be deemed to be a material breach of this Agreement by Customer.
2.2 When Customer’s application has been accepted and approved by JHA MC, JHA MC, either directly or through a Reseller who has contracted for the delivery of Services with Customer, shall provide the Services selected by Customer in its application. Customer shall utilize and access the Services in accordance with the terms of this Agreement and the practices and procedures established by JHA MC for the Services which have been communicated in writing to Customer. As part of the Customer set-up and boarding process:
JHA MC will provide Customer with the necessary user name(s) and password(s) (“Password”) to access the Services which are hosted on JHA MC’s processing system. Customer will designate an Administrator who shall be vested with the authority to determine who will be authorized to use the Services; establish separate passwords for each user; and establish limits on each user’s authority to access information and conduct transactions. Customer is responsible for the actions of its Administrator, the authority the Administrator gives others to act on Customer’s behalf, and the actions of the persons designated by the Administrator to use the Services. Customer shall take reasonable security procedures and practices to safeguard the confidentiality of the passwords; limit access to its passwords solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating Transactions in the Services without proper authorization and supervision and adequate security controls.
2.3 JHA MC or a Reseller may make available to Customer end-user training and/or Courseware to assist Customer in understanding and using the Services and the JHA MC processing system. The Courseware is a proprietary product of JHA MC and its licensors and is provided to Customer for its sole internal use. JHA MC and its licensors reserve all ownership rights in and to the Courseware materials. For training classes performed by JHA MC or the Reseller at Customer’s site, Customer shall pay the applicable onsite training class fee quoted by JHA MC or the Reseller and the reimbursable out-of-pocket travel expenses of the JHA MC or Reseller trainer who travels to and from Customer’s location to deliver the training session. For on-line classes and e-Learning modules provided by JHA MC or the Reseller, Customer shall pay the training class fee specified upon registration. If JHA MC or the Reseller offers a Courseware license which permits the Customer to perform its own internal training classes for the personnel of Customer and its Customers, Customer shall pay the annual Courseware license fee quoted by JHA MC or the Reseller for use of the Courseware modules licensed by Customer for this purpose.
3. REFUND, RECOUPMENT AND SET-OFF:
3.1 JHA MC will send an ACH debit on JHA MC’s behalf to Customer’s Settlement Account to collect the funding for the Transactions initiated by Customer. Any return by Customer of the debit sent to collect the cumulative amount for all daily payments is strictly prohibited and shall constitute breach of contract by Customer. As soon as notice is provided to Customer that any debited funds have been returned, Customer shall wire to JHA MC on that same day immediately available funds in the amount of any returned debit. Customer acknowledges that time is of the essence in its obligation to cover immediately any such returned debited funds. Further, Customer shall indemnify JHA MC from any and all actual direct loss suffered by JHA MC from any such incorrectly returned debit. All funds held by JHA MC overnight will be held for safety in overnight investment accounts. Interest, if any, on such funds will be paid to JHA MC as part of its compensation for the Services.
3.2 Customer hereby acknowledges and agrees that JHA MC shall have a right of setoff against:
(a) any amounts JHA MC would otherwise be obligated to deposit into Customer’s account, and
(b) any other amounts JHA MC may owe Customer under this Agreement.
3.3 Right to Refund. Customer may request a refund of a Transaction, by contacting Customer Service, if:
(a) the instructions as to where the funds should be forwarded or transmitted have not been complied with by JHA MC; or
(b) the funds have not been committed, forwarded or transmitted to the designated recipient within ten (10) calendar days of JHA MC’s receipt of the funds.
4. PRICING AND PAYMENT:
4.1 Customer shall pay Reseller the fees, penalties and charges for the Services or Courseware shown in Exhibit A or the then-current fee schedule in effect for Customer. All amounts are stated and due and payable in U.S. dollars, and are exclusive of any taxes or other charges which may be imposed by a government entity on the Services or Courseware, except for taxes due on JHA MC’s or the Reseller’s income. Customer shall pay all fees invoiced according to the directions set forth in Exhibit A (except that Exhibit A as referenced in this section 4.1 is not applicable)..
4.2 Customer shall pay Reseller for the Services in accordance with the written agreement between Reseller and Customer. Reseller is responsible for providing Customer with an accurate statement of all fees due for the Service.
5. NACHA RULES AND JHA MC GUIDELINES: Each party shall comply with the then-current NACHA Rules which apply to ACH Transactions processed under this Agreement. In addition, JHA MC may publish to Customer and other customers its own standard operating and implementation guidelines for the Services with respect to specific NACHA Rules which will govern and apply to this Agreement as if set forth herein.
6. CONFIDENTIAL INFORMATION AND SECURITY PROCEDURES:
6.1 Customer shall protect and maintain the confidentiality of all Confidential Information disclosed by JHA MC to Customer under this Agreement and comply with the security procedures described in this Agreement and in any JHA MC policies and procedures communicated in writing to Customer. Customer acknowledges that the purpose of these security procedures is for verification of authenticity of a Transaction and not to detect an error in the transmission or content of a Transaction. No security procedure for the detection of any such error has been agreed upon between JHA MC and Customer. Customer is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions.
6.2 Customer understands that the password and Services access and use instructions provided by JHA MC are confidential and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any party whatsoever except for JHA MC, whether such disclosure of use are on account of Customer’s negligence or are deliberate acts. Customer acknowledges that no person from JHA MC will ever ask for any password and that JHA MC employees do not need and should not ask for Customer’s password.
6.3 Customer shall change its password periodically and whenever anyone who has had access to a password is no longer employed or authorized by Customer to use the Services. JHA MC may require Customer to change its password at any time. JHA MC may deny access to the Services without prior notice if it is unable to confirm to its satisfaction any person’s authority to access the Services or if JHA MC believes such action is necessary for security reasons.
6.4 Customer acknowledges that the Services and Software provided by JHA MC under this Agreement incorporates trade secrets of JHA MC and its licensors, and as such is protected by civil and criminal law. Customer shall notify JHA MC immediately of the unauthorized possession, use or knowledge of any item supplied under this Agreement by any person or organization not authorized by this Agreement to have such possession, use or knowledge. JHA MC shall have, in addition to any other remedies available to it at law or equity, the right to seek injunctive relief enjoining any wrongful use or possession of the trade secrets contained in the Services or Software by any party. Customer acknowledges that irreparable harm will occur to JHA MC in the event of such wrongful use or possession of the trade secrets contained in the Services or Software and that other remedies are inadequate.
7. CONSUMER TRANSACTIONS; DATA PRIVACY AND SECURITY
7.1 Customer acknowledges and agrees that at the time of execution of this Agreement only business-related Transactions may be processed under this Agreement. No consumer Transactions for personal, family or household purposes shall be submitted without JHA MC’s prior written consent, which may be withheld in JHA MC’s sole discretion. In the event JHA MC grants such written consent, the following sub-sections shall apply.
7.2 In accordance with applicable data privacy laws and regulations, which may include but not be limited to the Gramm-Leach-Bliley Act (“GLBA”) and the Health Insurance Portability and Accountability Act (“HIPAA”), JHA MC shall not disclose or permit access to or use of the non-public personal information of individual consumers made available by Customer to JHA MC for any purposes other than those specifically required to fulfill JHA MC’s contractual obligations with Customer. JHA MC shall not sell the consumer information for any reason. In connection with providing services to Customer, JHA MC shall take all commercially reasonable steps to ensure the privacy and security of the consumer information in JHA MC’s possession and protect against anticipated threats and hazards to the security of such information. JHA MC shall take all commercially reasonable steps to prevent unauthorized access to or use of such consumer information that could result in substantial harm or inconvenience to Customer or its consumers. In the event any court or regulatory agency seeks to compel disclosure of the information, JHA MC shall, if legally permissible, promptly notify Customer of the disclosure requirement and will cooperate so that Customer may at its expense seek to legally prevent this disclosure of the information.
7.3 JHA MC’s parent company, Jack Henry & Associates, Inc. (“JH”), has separately published its data privacy and security compliance commitment to its and its affiliated companies’ customers, which corresponds at a minimum to the provisions of this Section 7 as of the effective date of this Agreement. To the extent that additional commitments are reflected in future published versions of this policy, these additional commitments shall be incorporated as part of this Agreement without further actions by the parties. In no event shall a future published data privacy and security compliance statement lessen or eliminate any of the commitments stated in this Section 7.
7.4 If a breach of security results in an unauthorized intrusion into JHA MC’s systems which directly and materially affects Customer or its consumers, appropriate measures will be taken to stop the intrusion; JHA MC will report on the intrusion to Customer within a reasonable time after discovery of the intrusion and report the subsequent corrective action taken in response to the intrusion; and provide reasonable assistance to Customer to support any mandatory disclosures about the intrusion to its consumers as required by law. If law enforcement agencies are notified about the intrusion, JHA MC may delay its notification of the intrusion to Customer until authorized to do so by the law enforcement agencies.
8. WARRANTIES:
8.1 JHA MC warrants to Customer that its Services will be performed in a professional and timely manner consistent with industry standards and in accordance with the NACHA Rules and applicable laws and regulations and any written JHA MC policies and procedures communicated by JHA MC to Customer. In the event that Customer discovers an error in the Services or Software which has been caused by JHA MC, if Customer has contracted directly with JHA MC for the Services, Customer shall immediately notify JHA MC of the existence and details of the error; if Customer has contracted with a Reseller for the Services, then Customer shall provide this notification to Reseller. JHA MC shall apply commercially reasonable efforts to correct the error within a reasonable time after JHA MC’s receipt of notification of the error. EXCEPT FOR THE FOREGOING WARRANTY, JHA MC MAKES NO OTHER WARRANTIES FOR THE SERVICES PROVIDED BY JHA MC AND JHA MC DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JHA MC does not guarantee the completeness or accuracy of the information provided from a third-party database. JHA MC shall have no liability to Customer for any invalid Customer information provided by Customer or Entries returned unpaid to Customer.
8.2 Customer warrants that:
(a) all Transactions submitted to JHA MC for processing will comply with applicable laws and regulations and the NACHA Rules pertaining to the Transactions;
(b) Customer will comply with all laws, regulations and the NACHA Rules applicable to Customer’s activities covered by this Agreement;
(c) all information provided by Customer initially in its application and supporting documentation and subsequently in all updates to its application and supporting documentation provided to JHA MC pursuant to Section 2.1 above is valid, complete, accurate and up-to-date;
(d) the individual signing and submitting this Agreement, the application for purchase of the Services from JHA MC, and all future updates to the application and supporting documentation has the legal authority to make and bind Customer to the agreements, warranties and commitments stated in this Agreement and the submitted application on Customer’s behalf; and
(e) only business-related Transactions may be processed under this Agreement and no consumer Transactions for personal, family or household purposes shall be submitted without JHA MC’s prior written consent pursuant to Section 7.1.
(f) It is JHA MC’s corporate policy not to knowingly provide processing Services for any person or organization whose use of the processing Services involves or pertains to, and Customer acknowledges and agrees that, it is strictly prohibited for Customer to utilize the JHA MC Services for, any activity which is illegal under U.S. law or involves an activity or business with which JHA MC declines to accept and conduct business generally (“Excluded Activity or Activities”). Customer warrants that it will not utilize the Services with respect to any of the Excluded Activities, which include but are not limited to the following:
1. Cash Advance/Check Cashers/ Payday Loan Business
2. Bank Drafts, Remotely Created Checks or Electronically Created Payment Orders
3. Government Grant or Will-Writing Kits
4. International ACH Transactions (IAT)
5. Internet Gambling payments (see Regulation GG)
6. Internet Tobacco or Firearms Sales
7. Predatory consumer lending business
8. Pornography or other Sexually-Oriented Businesses
9. Psychic or Horoscope Consultation Services
10. Sweepstakes
11. Shell Banks
12. Used car dealerships exporting cars
13. Foreign businesses importing cars
14. Title Loan Businesses
15. Embassy/Foreign Consulate/Foreign Mission Accounts
16. Cannabis Products (i.e. marijuana, hemp and CBD)
17. Crowdfunding
18. Consumer Debt Collection Agencies
19. Cryptocurrency Businesses
20. Hate groups
JHA MC may publish to its resellers and customers from time to time a more detailed and comprehensive list of businesses and activities which JHA MC includes within the scope of Excluded Activities. JHA MC reserves the right to reject and to refuse to process a Transaction that JHA MC deems, in its sole discretion, may constitute use the processing Services in conjunction with any Excluded Activity. If JHA MC has reason to believe that the Customer is utilizing the processing Services in conjunction with an Excluded Activity, JHA MC may immediately terminate its provision of processing Services to Customer immediately upon written notice to Customer. If JHA MC encounters activity which it believes may be suspicious, as determined in JHA MC’s sole discretion, Customer agrees to promptly provide such support and information as JHA MC may reasonably request for investigating and/or reporting of such transactions to governmental entities.
8.3 Each party represents and warrants to the other that it has (i) taken all corporate action necessary for the authorization, execution and delivery and performance of this Agreement, and (ii) no agreement or understanding with any third party that may prevent, prohibit, or substantially hinder its performance of its obligations under this Agreement.
9. INDEMNIFICATION:
9.1 JHA MC shall indemnify, defend and hold Customer harmless from and against all claims, actions, losses and expenses, including reasonable attorney’s fees and legal costs, incurred by Customer arising out of a third party claim that the Services or Software owned and provided by JHA MC under this Agreement infringe the valid United States intellectual property rights of the third party, provided that JHA MC is promptly notified by Customer of its receipt of notice of such claim, is given control of the defense or settlement of such claim, and is given reasonable assistance requested by JHA MC at JHA MC’s cost with regard to such claim.
9.2 Customer shall indemnify, defend and hold JHA MC and its third party service providers harmless from and against all claims, actions, losses and expenses, including fines, penalties, reasonable attorney’s fees and legal costs, incurred by JHA MC or its third party service providers arising out of (a) Customer’s breach of this Agreement, the NACHA Rules or applicable laws and regulations; (b) incorrect or incomplete data or information provided by Customer in the submission of a Transaction to JHA MC, a closed Settlement Account, or insufficient funds in the Settlement Account, or return of an ACH debit on the Settlement Account initiated by JHA MC, and/or (c) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Transactions by Customer or a third party who has gained access to the Services through the use of Customer’s password.
10. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL JHA MC OR ITS THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except as otherwise required by law, in no event shall JHA MC be liable for damages for non-delivery or delay of a payment transaction, unless arising from the gross negligence or willful misconduct of JHA MC. Further, JHA MC will remain liable to Customer in the event JHA MC deposits funds into an account other than the account specified by Customer or forwards funds to a third-party location which was not designated by Customer, to the extent the error is caused by the acts of JHA MC, and JHA MC, Reseller, or an authorized third party is unable to recover the funds. Except for (1) JHA MC’s indemnification liability stated in Section 9.1 above; (2) actual, direct damages arising from any action or omission of action by JHA MC which constitutes the gross negligence or willful misconduct of JHA MC; or (3) return of the amount of funds that JHA deposited into the incorrect account or forwarded to a third-party location which was not designated by Customer and was unable to recover, the sole remedy of Customer and JHA MC’s aggregate, cumulative liability to the Customer for all claims of actual direct damages relating to the Services, this Agreement, or the relationship between JHA MC and Customer, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees earned by JHA for Services delivered under this Agreement during the three (3) month period preceding the origination of the claim giving rise to liability.
11. TERM AND TERMINATION:
A. Term: This Agreement shall have an initial term of three (3) years from and after the Effective Date. Upon expiration of the initial term, this Agreement shall automatically renew for additional consecutive twelve (12) month terms unless either party gives written notice of its election not to renew this Agreement to the other party no later than sixty (60) calendar days prior to the end of the then-current term.
B. Termination For Cause:
(a) Termination Due to Material Breach: This Agreement may be terminated by either party for cause upon giving the other party written notice of the breach of this Agreement committed by the other party and giving the other party a reasonable time to cure the breach. For the purpose of this Agreement, a reasonable time to cure the breach specified in the written notice shall be deemed to be:
(1) For any breach of Sections 2.1, 2.2, 3.1, 3.3, 4.1, 6, 7.1 or 8.2 above: Five (5) business days from receipt of written notice.
(2) For all other types of breach of this Agreement, except as provided below: Thirty (30) calendar days from receipt of written notice of the breach.
Notwithstanding the foregoing, in the event either party materially breaches any provision of this Agreement by fraud, act of intent to defraud, failure to notify the other party of a material change in party’s financial structure or a material change in the information originally provided to induce the other party to enter into the Agreement, the non-breaching party may immediately terminate this Agreement in writing without giving the breaching party an opportunity to cure the breach with prior written notice.
(b) Termination Due to Changed Circumstances: JHA MC reserves the right to terminate this Agreement in whole or in part at any time due to the occurrence of any of the following changed circumstances:
(1) Customer becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights, any of which in JHA MC’s reasonable judgment impairs the ability of Customer to perform its responsibilities under this Agreement;
(2) In JHA MC’s sole judgment, there is a deterioration or other materially negative change in Customer’s financial status or structure which increases the financial risk being assumed by JHA MC in processing Customer’s Transactions;
(3) There is a change in the laws, regulations, regulatory guidance, or NACHA Rules that are applicable to this Agreement and JHA MC’s provision of any of the Services which restricts or prohibits JHA MC from providing the affected Services to Customer, would be reasonably likely to cause material liability relating to legal or regulatory issues for JHA MC, or which presents reputational risk to JHA MC or would significantly increase JHA MC’s costs in providing the affected Services to its customers generally; or
(4) Customer’s business and/or assets are acquired by a competitor of JHA MC,
In these instances, JHA MC will provide written notice of the termination on this basis to Customer, which shall become effective upon receipt by Customer.
C. Termination for Convenience: Either party may exercise the right to terminate this agreement without cause and for its convenience by giving the other party at least thirty (30) days prior written notice of such termination.
12. GENERAL PROVISIONS:
a) Governing Law Venue: This Agreement is governed by and will be construed in accordance with the laws of the State of Missouri, without reference to its conflict of laws provisions. Customer consents to jurisdiction and venue of all state and federal courts located in the State of Missouri.
b) Notice: Any notice required under this Agreement must be in writing and is deemed received on the business day after (i) delivered to the appropriate address by hand or by nationally recognized overnight courier service, or (ii) sent electronically via a commercially reasonable method to the attention of the undersigned or designated contact, or (iii) received or rejected by the addressee if sent by certified mail, return receipt requested, in each case to the addresses and marked to the attention of the person (by name or title) designated on the signature page (or to another address, or person as a party may designate by notice to the other party). Customer shall also deliver a copy of any notice of breach of contract to the attention of JH’s Legal Department at [email protected].
c) Assignment: This Agreement binds and benefits the parties and their successors and assigns and may not be assigned or transferred by Customer voluntarily, involuntarily, or by operation of law without the written consent of JHA MC, which shall not be unreasonably withheld.
d) Legal Fees: In the event of any dispute arising out of or related to the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and collection expenses in addition to any other recovery.
e) Force Majeure: If performance by JHA MC, its third party service providers or any of their respective affiliates, of any Services or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of acts or events beyond their reasonable control, including but not limited to labor disputes and strikes; acts of nature, fire, floods, lightning, hurricanes, earthquakes or severe weather; utility or communications failures; failures of the ACH network or Federal Reserve Bank system; computer-associated outages or delay in receiving electronic data; war, civil commotion or acts of terrorism; or the introduction of any new law, order or regulation which prohibits or restricts performance of this Agreement, then JHA MC its third party service providers and their respective affiliates affected by the occurrence of such acts or events shall be excused from their performance hereunder to the extent of the prevention, restriction, delay or interference.
f) Amendments: Unless otherwise expressly provided in this Agreement, this Agreement can be modified or altered only by a written instrument that specifically references this Agreement and is signed by a corporate officer of both parties. No handwritten changes or other manual changes made to the face of this Agreement will be effective, whether or not initialed or signed by one or more parties.
g) Entire Agreement: This Agreement supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter and contains the entire agreement between the parties with respect to the subject matter.
h) Publicity and Marketing Efforts: Neither party shall issue any press release, public endorsement, public announcement, or other public statement arising out of or relating to this Agreement or the relationship of the parties, without the prior written consent of the other party. Customer acknowledges and agrees that this Agreement does not include any rights to participate in any JH events, trade shows, or other marketing efforts. Any such rights must be mutually agreed upon in a separate agreement.
i) Trademarks: Each party agrees that is will not use the names, trademarks, or service marks (“Marks”) of the other party in any medium or manner, without the prior written consent of the other party. Each party agrees it will not use the other party’s Marks in a manner which misappropriates or infringes any third-party’s Marks, or which may reasonably be anticipated to diminish the value of a Mark or the owning party’s rights therein. Without limiting the foregoing, Customer shall only use the JH Marks in accordance with the JH Trademark Usage Guidelines, as in effect from time to time.
j) Drafting: References to sections, subsections, and exhibits refer to the sections, subsections, and exhibits of this Agreement. References to a particular section of this Agreement refer to all of its subsections. All provisions of this Agreement will be construed as consistent with one another whenever possible. Whenever the context requires, the singular number will include the plural and vice versa, and any gender will include both genders. The words “include”, “includes”, “included” and “including” and variations are terms of inclusion without limitation. The captions and headings are for convenience only and will not affect the interpretation of this Agreement. The parties have jointly negotiated and drafted this Agreement. No presumption or burden of proof will favor or disfavor either party by virtue of authorship.
k) Time Limitation on Cause of Action: No action arising out of this Agreement may be brought by Customer or JH more than two (2) years after the cause of action has accrued. The prevailing party in any litigation conducted in relation to this Agreement will be entitled to recover its reasonable attorneys’ fees from the other party.
l) Relationships; Third Party Beneficiaries: The parties are independent contractors and have no legal right or authority to make any binding commitments on behalf of each other. Each party is responsible for providing insurance, workers compensation, and other benefits to its own personnel. Nothing in this Agreement creates any third-party beneficiaries.
m) Subcontractors: JH may use subcontractors at its discretion. JH is responsible for the performance of its subcontractors to the same extent as if JH itself performed the activity itself.
n) Signatures: This Agreement may be executed by manual or electronic signatures in counterparts, which are each an original document.
o) Waiver: Waiver of any provision of this Agreement is not a waiver of any other provision, nor is a waiver of any breach of this Agreement construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
p) Survival: All provisions in this Agreement which by their nature and intent should survive expiration or termination, including, but not limited to, Sections 6, 7, 8, 9, 10, and 12, will survive the expiration or termination of this Agreement.
q) Severability: If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of the provision to other persons or circumstances will be interpreted so as to reasonably effect the intent of the parties.
MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS
Version 11.2013 brz
By registering and using Yardi Breeze, accessing and using the Payment Services, and accepting User payments by Mastercard, Visa, Discover, AMEX, you expressly acknowledge, agree to, and accept this MERCHANT SERVICES AGREEMENT FOR SUB-MERCHANTS (this “Agreement”), which is made among WORLDPAY, LLC formerly known as, VANTIV, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) and you, the Client (hereinafter referred to as “Sub-merchant”), in connection with the agreement between Sub-merchant and Yardi Systems, Inc. (“Provider”). Acquirer will provide Sub-merchant with certain payment processing services (“Services”) in accordance with the terms of this Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. (“MasterCard”), VISA U.S.A. Inc. (“VISA”), Discover (“Discover”), and certain similar entities (collectively, “Associations”), Sub-merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Agreement, Sub-merchant has fulfilled such requirement. However, Acquirer understands that Sub-merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively “Operating Regulations”). Sub-merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are: http://usa.visa.com/merchants/ and http://www.mastercard.com/us/merchant/ and http://www.discovernetwork.com/merchants/. Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.
If appropriately indicated in Sub-merchant’s agreement with Provider, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Sub-merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub-merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.
Sub-merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub-merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Sub-merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Sub-merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 – Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
2. Sub-merchant Prohibitions. Sub-merchant must not i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to transactions, unless applicable law expressly requires that a Sub-merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub-merchant, v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub-merchant), or Sub-merchant is participating in a cash back service, vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
3. Settlement. Upon receipt of Sub-merchant’s sales data for card transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Associations and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant, either directly to the Sub-merchant Owned Designated Account or through Provider to an account designated by Provider (“Provider Designated Account”), at Acquirer’s discretion, for such card transactions. Sub-merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Sub-merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Sub-merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit Sub-merchant’s designated demand deposit account (“Sub-merchant Owned Designated Account”) upon receipt of such account information from Sub-merchant or Provider, or if Acquirer deposits settlement funds into the Sub-merchant Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Sub-merchant or Provider.
4. Term and Termination. This Agreement shall be binding upon Sub-merchant upon Sub-merchant’s execution. The term of this Agreement shall begin, and the terms of the Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Sub-merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Agreement without notice if (i) Sub-merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire determines Sub-merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
5. Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sub-merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services.
Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Provider’s processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Provider. If Provider is unable to provide its services to Sub-merchant in connection with this Agreement and Acquirer elects to provide those services directly, Sub-merchant acknowledges and agrees that the provisions of this Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirer’s relationship with Sub-merchant. If Provider subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Agreement will govern Acquirer’s relationship with Sub-merchant.
6. Miscellaneous. This Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if such provision is not contained in the Agreement “Member Bank” as used in this Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.