ACHQ TERMS AND CONDITIONS

version 2.2 – effective 20 September 2019

1. MERCHANT wishes to initiate Debit and/or Credit Entries pursuant to the terms of this agreement (“Agreement”) and the Rules of the National Automated Clearing House Association (the “Rules”), and ACHQ, INC., a Florida corporation (“ACHQ”) is willing to act as the THIRD party processor for MERCHANT, subject to the terms and conditions set forth in this Agreement with respect to such Entries.
2. Unless otherwise defined herein, capitalized terms shall have the meanings provided in the Rules. The term “Entries” shall have the meaning provided in the Rules and shall also mean the data, which is transmitted by the MERCHANT to ACHQ to prepare such Entries for processing.
3. This agreement is applicable to processing the following transactions based on the payment acceptance options as selected by MERCHANT on the front of this Agreement utilizing the end-customer’s Checking account data:
   1. Point of Sale (POS) transactions which are “POP” Entries as defined by the Rules;
   2. ACH Debit transactions which are “PPD” and “CCD” Entries as defined by the Rules;
   3. Tele-Debit transactions which are“PPD” and “CCD” Entries as defined by the Rules;
   4. Checks by Phone transactions which are “TEL” Entries as defined by the Rules;
   5. Checks by Web transactions which are “WEB” Entries as defined by the Rules;
   6. Paper Guarantee which are traditional check transactions;
   7. Check 21+ transactions which are traditional check payments processed electronically via Image Cash Letter (ICL);
   8. Identification and verification services as defined herein.
4. Any ACHQ products and associated software specifically designed for such transactions will be utilized by MERCHANT when required by ACHQ, and such software will either be hosted and maintained by ACHQ, or alternatively, provided directly to MERCHANT for installation on MERCHANT equipment. In all cases where ACHQ hosts software for MERCHANT, the various terms and conditions referenced below regarding disclosure, transaction and processing requirements and all other requirements imposed by either regulatory agency, law, ACHQ, or otherwise shall have full force and effect. MERCHANT agrees not to change, modify, or alter such software or product in any way.

1.0 AGREEMENT

1. MERCHANT’S AUTHORITY –MERCHANT specifically warrants that MERCHANT has authority to enter into this Agreement with ACHQ and acknowledges that this Agreement constitutes the legal, valid and binding obligation of MERCHANT and is enforceable in accordance with its terms.
2. INTENTIONALLY OMITTED
3. COLLECTION –MERCHANT authorizes ACHQ to re-present all return items forwarded to ACHQ and to originate an electronic Entry for the amount of any allowable recovery fee. ACHQ shall have sixty (60) days from the date of receipt of any returned transaction item to complete its re-presentment process. If this Agreement is terminated for any reason, ACHQ will retain the right to complete the electronic re- presentment process for all returned transaction items forwarded to ACHQ prior to termination.
4. MERCHANT’s PUBLIC DISCLOSURE RESPONSIBILITIES –ACHQ shall provide signage to be displayed at the point of purchase (POP), which informs customers of the MERCHANT’S use of ACHQ Check Processing Service and of any applicable Returned Check Fees that may be electronically debited from the customer’s account. MERCHANT agrees to inform customers that MERCHANT will honor check processing services provided by ACHQ. From time to time, ACHQ may design educational and promotional materials into any related software and send such to MERCHANT for MERCHANT to disseminate to customers. MERCHANT will discontinue the use of all of ACHQ’s promotional materials upon receipt of written notification of suspension or termination of this Agreement.
5. RESTRICTIONS ON USE OF PROMOTIONAL MATERIALS –MERCHANT shall make no use of ACHQ’s software or promotional materials, other than as expressly set forth in this Agreement. In no way shall the MERCHANT indicate that ACHQ’s services are an endorsement of the MERCHANT, its business or its business practices.
6. CUSTOMER’S AUTHORIZATION INITIATES DEBIT ENTRY-MERCHANT acknowledges that the Customer’s authorization allows MERCHANT to instruct ACHQ to initiate an ELECTRONIC DEBIT ENTRY (“ENTRY”) for MERCHANT against customer. If transaction is returned unpaid after presentment and where ACHQ has funded the MERCHANT, ACHQ shall be entitled to debit the MERCHANT’S account for the amount of the transaction. MERCHANT ACKNOWLEDGES AND UNDERSTANDS THAT IT IS A FEDERAL VIOLATION TO PROCESS ACH DEBIT REQUESTS AGAINST A CONSUMER BANK ACCOUNT WITHOUT ACCOUNT HOLDER’S EXPRESSED AUTHORITY. MERCHANT HEREBY ACKNOWLEDGE RECEIPT OF PROPER NOTICE THAT THE USE OF ANY COUNTERFEIT, FICTITIOUS, LOST, STOLEN, OR FRAUDULENTLY OBTAINED DEBIT INSTRUMENT TO UNLAWFULLY INITIATE A DEBIT TRANSACTION IS PUNISHABLE BY A MAXIMUM OF A $10,000.00 FINE, IMPRISONMENT FOR A TERM OF TEN YEARS, OR BOTH. IT IS SPECIFICALLY UNDERSTOOD BY MERCHANT THAT ANY TRANSACTION EVENT INITIATED AS AN UNAUTHORIZED MANUAL ENTRY OR DEPOSIT BY MERCHANT AFTER MERCHANT HAS RECEIVED APPROVAL FOR ELECTRONIC DEPOSIT OF ACH TRANSACTION (S) OR IS INTENDED FOR ELECTRONIC DEPOSIT SHALL BE INTERPRETED AS AN UNLAWFUL DEBIT TRANSACTION PURSUANT TO THIS NOTICE. IN THE EVENT OF SUCH A VIOLATION, MERCHANT AGREES AND WARRANTS TO HOLD ACHQ AND ALL OF ITS ASSIGNS AND ASSOCIATES HARMLESS AND REIMBURSE ACHQ FOR THE TRANSACTION (S) WITHIN 24 HOURS OF SAID OCCURRENCE. IF MERCHANT REFUSES OR IS UNABLE TO REIMBURSE ACHQ FOR ANY SUCH OCCURRENCE, IT IS EXPRESSLY STATED AND UNDERSTOOD THAT THE MERCHANT IS IN DIRECT VIOLATION OF THIS AGREEMENT AND FEDERAL LAW, AND ACHQ WILL PURSUE ALL LEGAL, CIVIL, AND COLLECTION REMEDIES AS ARE POSSIBLE UNDER LAW AS REMEDY.
7. RESTRICTIONS ON ACCEPTANCE OF CHECKS/ ACH TRANSACTIONS FOR ELECTRONIC PROCESSING –From time to time, ACHQ shall establish necessary security and identification procedures for presentment of checks for electronic processing pursuant to the Rules and applicable law. MERCHANT agrees to comply with such procedures and to accept such “properly presented” checks for electronic processing. ACHQ may establish minimum and maximum amount limitations on transactions presented for processing by MERCHANT and MERCHANT shall not accept or attempt to process transactions in excess of the maximum limitations established by ACHQ. In no event will ACHQ accept or will MERCHANT attempt to process a transaction greater than the approved check limit assigned by ACHQ. ACHQ shall also establish the number of transactions that may be submitted on a daily basis by any customer for electronic processing. MERCHANT agrees to provide ACHQ with any and all information needed to establish such limitations. MERCHANT further agrees to inform ACHQ immediately of any changes in business activities, rules or regulations, which may affect these limitations. MERCHANT further agrees to abide by these limitations as a condition for ACHQ to electronically process any checks.
8. INTENTIONALLY OMITTED
9. SURCHARGES AND TAXES –MERCHANT shall not impose any illegal surcharge on any processed transactions. MERCHANT shall collect all required taxes and/or shipping charges at time of sale. All required taxes and/or shipping charges must be included in the total transaction amount at the time such transaction is submitted for authorization to ACHQ. In any event, MERCHANT shall not collect any required taxes separately in cash, or otherwise. MERCHANT is responsible for paying all taxes collected to the appropriate authorities as required by state or Federal law.
10. IRS REPORTING AND WITHHOLDINGS –Section 6050W of the Internal Revenue Code (“Code”) requires payment providers and third party payment networks, such as ACHQ, to report payment settlement amounts to the Internal Revenue Service (“IRS”) for each Merchant processing through ACHQ. Merchant shall verify its identity by providing ACHQ with a Tax Identification Number (“TIN”) such as a Social Security Number (SSN) or Employer Identification Number (EIN) for each Merchant Account. In the event Merchant fails to provide its TIN, ACHQ will place a restriction on Merchant’s Account and may restrict the receipt of funds into Merchant’s Account, or withhold a percentage of payments deposited into Merchant’s Account in order to satisfy the backup withholding requirements of the IRS.
11. 
EQUIPMENT/SOFTWARE –MERCHANT shall utilize a POP MICR reader/check scanner, virtual terminal or payment gateway that ACHQ has previously authorized for processing all electronic check transactions. MERCHANT is responsible for all telecommunication fees and charges, including but not limited to telephone fees, associated with and related to the use of the equipment/software and any related software costs/expenses. MERCHANT shall maintain all hardware/software necessary for electronic check processing, including reader/check scanner, necessary file servers, payment gateway, and computer telecommunications equipment in good working order at MERCHANT’s sole expense. MERCHANT shall advise ACHQ immediately in the event of a security breach or breakdown of related equipment, electronic check software problems, and/or any other system failure. MERCHANT acknowledges that ACHQ is not responsible for any related Internet or computer and telecommunications equipment used by the MERCHANT or for POP MICR reader/check scanner equipment problems. Moreover, ACHQ’s approval of such equipment does not constitute nor express an implied warranty, representation or endorsement of such equipment. MERCHANT also acknowledges that ACHQ assumes no liability in the performance of MERCHANT’s use of a third party’s payment gateway. In this regard, ACHQ shall not be responsible for any unauthorized tampering or altering to software specifically installed by ACHQ on the part the MERCHANT or MERCHANT’s agent. ACHQ’s approval of equipment and/or software, including without limitation, payment gateway software, does not constitute an express or implied warranty, representation or endorsement of such equipment and MERCHANT accepts responsibility for selection and compliance with the Rules of such equipment and/or software. In the event of a security breach of MERCHANT’s records or payment gateway, MERCHANT is required to notify ACHQ immediately of such a breach, and to provide as much information as may be required to allow ACHQ to act accordingly to protect ACHQ’s legal rights and responsibilities. MERCHANT further agrees to immediately remove and properly dispose of ACHQ’s previous version releases of any related software and to utilize the most current software version releases upon receipt of such from ACHQ. In the event of termination, MERCHANT shall immediately and unconditionally remove all software related to ACHQ services at MERCHANT’s expense.
12. USE OF EQUIPMENT –MERCHANT agrees to utilize only software, equipment, and a payment gateway approved by ACHQ for the electronic processing of transactions and in a format and medium of transmission acceptable to ACHQ.
13. INTENTIONALLY OMITTED
14. OWNERSHIP OF NEW INTELLECTUAL PROPERTY –All rights and title to all inventions, derivative works, improvements and/or discoveries, including software, know-how, copyright, patent, technology, data, trade secrets, and other intellectual property arising directly or indirectly from the Solutions (“New Intellectual Property Rights”) during the Term of this Agreement shall belong to ACHQ. To the extent that such New Intellectual Property Rights do not automatically vest in ACHQ, MERCHANT hereby assigns and transfers over such rights to ACHQ, grants ACHQ power of attorney to accomplish all such assignments and transfers and agrees to take any and all actions that ACHQ or its counsel deem necessary to transfer and vest good title in such rights in ACHQ.
15. DAILY SETTLEMENT OF TRANSACTIONS –“Batch out” shall mean that MERCHANT transmits all of the transactions to ACHQ by midnight (12:00 am) on the day ACHQ authorizes the sale. ACHQ will generally transmit settlement to MERCHANT’s bank within 3 business days from batch out for Point of Sale and Check 21+, within 7 business days from batch out for all other ACH programs, and within 28 days from the date of initial claim for Paper Guarantee. ACHQ reserves the right to decrease or increase settlement as determined necessary based on business credit, risk, and financial stability. In cases where MERCHANT has been
approved by ACHQ in advance to initiate credit entries, the debit to MERCHANT’s account will be initiated first and the credit to the customer may be held until MERCHANT’s debit clears, generally within 6 banking days or for a longer period as determined necessary by ACHQ to insure the funds have cleared MERCHANT’s account. In addition, any transactions contained in an untimely batch out may be refused or become subject to chargeback or held until after a sixty-day period for customer chargebacks by ACHQ. Transactions contained in an untimely batch out are not covered under check guarantee programs. If so requested by ACHQ, all documentation related to the customer’s ACH authorization, including but not limited to customer’s telephone number, billing address, and proof of signed, recorded, or Internet authorization, must be faxed and received by ACHQ within 48 hours from the request date. Failure to do so will remove ACHQ’s obligations under check guarantee programs. MERCHANT acknowledges that failure to batch out on a timely basis may be grounds for suspension or termination at ACHQ’s sole discretion. ACHQ reserves the right to hold additional monies as necessary to reduce any risk associated with daily processing of electronic checks. ACHQ may, in its sole discretion and to insure against, place a hold on funds due to MERCHANT in settlement of transactions in order to insure against potential losses. ACHQ will then provide a net deposit to MERCHANT after a period of time acceptable to ACHQ (usually 90 days from transaction processing date). In addition, MERCHANT understands that a failure to batch out will delay funds being deposited into MERCHANTS’ account.
16. NETTING OF TRANSACTIONS –MERCHANT acknowledges that all transactions between ACHQ and MERCHANT under this Agreement shall be treated as a single transaction for purposes of daily settlement between MERCHANT and ACHQ. Chargebacks may be deducted from daily settlement or may be debited from MERCHANT’s account if no pending credits are available to offset the chargeback.
17. 
PROVISIONAL SETTLEMENTS –MERCHANT acknowledges that all settlements between ACHQ and MERCHANT are provisional and are subject to the customer’s rights to dispute the charges against the customer’s account.
18. PAYMENT –MERCHANT acknowledges that this Agreement provides for the provisional settlement of MERCHANT’S transactions, subject to certain terms and conditions, fees, credit transactions, contingent claims for chargebacks, adjustments and final settlement including but not limited to those enumerated herein. All payments to MERCHANT for legitimate and authorized transactions shall be made by ACHQ through the ACH network and shall normally be electronically transmitted directly to MERCHANT’S designated account. However, ACHQ cannot guarantee the timeliness with which any payment may be credited by MERCHANT’S bank. MERCHANT understands that due to the nature of the ACH and the electronic networks involved and the fact that not all banks belong to the ACH network, payment to MERCHANT can be delayed. In such cases, MERCHANT agrees to work with ACHQ to help resolve any problems in crediting MERCHANT’S designated account. In the event that a payment is rejected by MERCHANT’S bank or fails to arrive within seven (7) banking days from the date of settlement due to problems beyond ACHQ’s control, ACHQ may periodically wire transfer all funds due MERCHANT until the problem is corrected, at MERCHANT’S expense. All payments to MERCHANT shall be made after first deducting any credit, chargeback, reserve or other charge for which MERCHANT is responsible pursuant to this Agreement. Said charges shall be deducted from incoming transactions or may be debited from MERCHANT’S designated Account(s) at ACHQ’s sole discretion, without any further notice or demand.
19. AUTHORIZATION TO ACCESS MERCHANT’s ACCOUNT –MERCHANT hereby authorizes ACHQ to initiate debit and credit Entries to MERCHANT’S designated account(s). MERCHANT’s authorization shall continue in effect for at least 120 days after termination of this Agreement, or for a longer period as determined necessary by ACHQ in the exercise of its sole discretion in order to properly terminate business. Except as allowed in certain cases under the ACH Debit program, no MERCHANT or customer is authorized to initiate a customer credit Entry, except where the Entry is the result of a reversal of a previous ACH debit Entry. ACHQ may holdback certain amounts where ACHQ is investigating a transaction for breach of warranty or transaction requirements by MERCHANT or for other reasons. ACHQ shall monitor MERCHANT’s transactional activity and MERCHANT agrees that ACHQ may delay funds for a reasonable period to investigate account activity. ACHQ will attempt to notify MERCHANT of any investigation, but ACHQ shall have no liability to MERCHANT or any other party, for any such actions taken by ACHQ. MERCHANT agrees that ACHQ may hold, setoff, or retain funds to protect against amounts owed to ACHQ based on MERCHANT’s transaction history and/or MERCHANTS’ financial condition. ACHQ will not be liable for any dishonor of any item as a result of actions taken hereunder. All accounts are subject to review, verification, audit and acceptance by ACHQ. ACHQ may return any item to MERCHANT for correction or proper processing.
20. RETURNS AND CREDITS –MERCHANT shall maintain a fair policy permitting refunds, exchanges, returns and adjustments. During the term of this Agreement, MERCHANT shall be responsible for making all refunds to customer after a transaction has been released for settlement. Each debit and credit Entry shall constitute a separate transaction. MERCHANT must initiate voids, which occur the same day as the day of authorization and prior to batching out. MERCHANT must use the equipment/software to transmit the void. If it becomes necessary for a reversal of a transaction to be initiated, MERCHANT shall request in writing for ACHQ to initiate such reversal. MERCHANT shall give ACHQ enough information to create such reversal.
21. REPRESENTATIONS AND WARRANTIES BY MERCHANT – MERCHANT represents and warrants the following:
    1. MERCHANT complies and will comply during the term of this Agreement with all federal, state, and local laws, rules and regulations, as amended from time to time, including those with respect to consumer protection, data security, and processing of ACH transactions;
    2. the description of type and nature of MERCHANT’s business in the Application is complete and accurate and will remain so during the term of this Agreement;
    3. the Application has been signed by a principle of MERCHANT and that if there is a change in control of MERCHANT that MERCHANT will not submit Entries under this Agreement without ACHQ’s prior written consent;
    4. in the event of a security breach of MERCHANT’s records or payment gateway, MERCHANT will notify ACHQ immediately of such a breach and to provide as much information as may be required to allow ACHQ to act accordingly to protect ACHQ’s legal rights and responsibilities and those of customers affected by the breach;
    5. all of MERCHANT’S business locations engage in the business activity listed on the face of this Agreement and no other business;
    6. MERCHANT has taken all necessary legal action and has authority to enter into this Agreement with ACHQ; and
    7. the person(s) signing for and on behalf of MERCHANT is specifically authorized and directed to do so by MERCHANT.
22. ADDITIONAL REPRESENTATIONS AND WARRANTIES BY MERCHANT – MERCHANT also represents and warrants that with each transaction presented to ACHQ by MERCHANT for authorization:
    1. each customer has authorized the debiting or crediting of its checking account, that each debit or credit is for an amount agreed to by the customer;
    2. each debit or credit Entry was authorized by the person named on the checking account;
    3. the proof of purchase is valid in form and has been completed in accordance with all applicable laws and all of the provisions set forth in this Agreement;
    4. the total amount of each proof of purchase evidences all goods and services purchased in a single transaction (no splitting check transactions into multiple transactions);
    5. MERCHANT has or will deliver the goods or completed the services identified in the sale;
    6. each sales draft represents a bona fide direct sales transaction between the MERCHANT and the person presenting the electronic check in the MERCHANT’S ordinary course of business and that the amount of the sales draft evidences the customer’s total indebtedness for the transaction involved;
    7. the person presenting the electronic check has no claim, defense, right of offset, or dispute against MERCHANT in connection with the purchase of the goods or services and MERCHANT will provide adequate services to the person presenting the electronic check and will honor all warranties applicable thereto;
    8. MERCHANT has not submitted transactions drawn from its personal or business checking accounts on the MERCHANT’s electronic hardware, software, or payment gateway;
    9. MERCHANT has used only the name and address contained in the Application on all its sales drafts;
    10. MERCHANT has not submitted duplicates of any transaction;
    11. the banking information submitted to ACHQ for processing has not been altered by MERCHANT;
    12. no transactions submitted for authorization to ACHQ is with or through an entity other than MERCHANT;
    13. the percentage of mail order sales listed by MERCHANT for each location is consistent with the information provided in the application; MERCHANT further acknowledges that if for any reason funds are credited to MERCHANT in excess of the amount
that MERCHANT is entitled to receive under this Agreement, MERCHANT shall return all such excess funds to ACHQ upon demand by ACHQ. Such excess funds may be collected by ACHQ by a debit to MERCHANT’S designated account initiated by ACHQ as provided in this Agreement. If for any reason such account does not have sufficient funds, then MERCHANT shall promptly remit the excess funds to ACHQ. Until the return of such funds to ACHQ, MERCHANT acknowledges that it shall hold all such funds in trust for the benefit of ACHQ.
23. LIMITATION OF LIABILITY AND MERCHANT’S WAIVER OF DAMAGES – ACHQ’S ENTIRE LIABILITY, IF ANY, UNDER THIS AGREEMENT WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF THE LIABILITY, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO ACHQ UNDER THIS AGREEMENT DURING THE 6 MONTHS PRECEDING THE DATE OF ANY CLAIM. IN NO EVENT WILL ACHQ, NOR ITS OFFICERS, AGENTS, DIRECTORS, PARENT COMPANY, AFFILIATES, OR EMPLOYEES BE LIABLE TO MERCHANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR OF ELECTRONIC CHECKS. ACHQ makes no other warranty, express or implied, regarding any services it performs in accordance with this Agreement, and nothing contained in the Agreement will constitute such a warranty. ACHQ DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. If any of the Entries that are on ACHQ’s system belonging to MERCHANT are subpoenaed in a civil matter, ACHQ shall use reasonable efforts to notify MERCHANT before producing such records in accordance with the subpoena. This section shall survive termination of this Agreement. ACHQ shall be responsible for performance of the ACH services as a third-party electronic check processor in accordance with the terms of this Agreement. ACHQ functions solely as the processor and assumes no liability in the performance of MERCHANT’s hardware, software, or payment gateway. ACHQ shall not be responsible for any other person’s or entity’s errors, acts, omissions, failures to act, negligence or intentional conduct, including without limitation to entities such as ACHQ’s communication carrier or clearing houses, and no such entity shall be deemed to be a representative or an agent of ACHQ. ACHQ may, at its option provide certain pre- verification services prior to processing an Entry; such services are at ACHQ’s discretion and shall in no way create a guarantee from ACHQ or obligation on ACHQ’s part to verify the customer identity and validity of a submitted Entry.
24. FORCE MAJEURE –ACHQ shall not be responsible for delays, nonperformance, damages, lost profits or other losses caused directly or indirectly by any Act of God, including without limitation fires, earthquakes, tornadoes, hurricanes, wars, labor disputes, communication failures, legal constraints, power outages, data transmission loss or failure, incorrect data transmission or any other event outside the direct control of ACHQ.
25. CONFIDENTIALITY OF AGREEMENT AND OF CUSTOMER INFORMATION –MERCHANT further warrants and agrees that it shall not sell, purchase, provide, or exchange checking account information in t he form of sales drafts, mailing lists, tapes, or any other media obtained by reason of a transaction or otherwise, to any third party other than to ACHQ, MERCHANT’S agents approved by ACHQ for the purpose of assisting MERCHANT in its business to ACHQ, the financial institution named on the check, or pursuant to lawful government demand without the account holder’s explicit written consent. All media containing checking account numbers must be stored in an area limited to selected personnel until discarding and must be destroyed prior to or in connection with discarding in a manner that will render the data unreadable. MERCHANT will not disclose and will keep confidential the terms and conditions of this Agreement
26. CHARGEBACKS AND RETURNS.MERCHANT shall bear all risk of loss, without warranty or recourse to ACHQ for the amount of any transaction, or other amounts due ACHQ (including ACHQ’s actual costs and expenses) due to returns of any kind, whether for customer chargebacks, insufficient funds returns, administrative or corporate returns, or any other type of returns, except as set forth in the Guarantee provisions below (provided that MERCHANT has purchased and ACHQ agreed to provide Guarantee services). ACHQ shall have the right to debit MERCHANT’S incoming transactions, designated account or any other funds of MERCHANT in ACHQ’s direct or indirect control by reason of ACHQ’s security interest granted to ACHQ by MERCHANT hereunder, and to chargeback such transactions to MERCHANT including, but not limited to any of the following situations:
    1. where goods have been returned or service canceled by the person submitting the electronic check for electronic processing and that person has requested a credit draft and such credit draft was not processed by MERCHANT;
    2. where the sales draft or purchaser breaches any representation, warranty or covenant or failed to meet the requirements of this Agreement, or applicable law, or has not been authorized in advance by the authorization center as required hereunder;
    3. where the transaction is for a type of goods or services sold other than as disclosed in the MERCHANT application or approved in advance by ACHQ or the amount shown on the sales receipt differs from the copy given to the customer;
    4. where a customer contends or disputes in writing to ACHQ, or the customer’s financial institution named on the check that:
       1. Goods or services were not received; or
       2. Goods or services received do not conform to the description on the sales receipt; or
       3. Goods or services were defective or the customer has a claim, dispute or defense to payment related to the transaction; or
       4. The dispute reflects a claim or defense authorized by a relevant statute or regulation,
    5. where a check authorization is subject to indemnification charged back by the customer’s financial institution;
    6. where the transaction was generated through the use of an account that was not valid or not open on the transaction date or which was made on an altered, fraudulent, or counterfeit check or of which MERCHANT had notice not to honor and failed to reject the transaction or if MERCHANT disregarded any denial of authorization;
    7. where the check results in a R29 return (Unauthorized ACH Entry to Corporate Account;
    8. where customer did not authorize the transaction in an approved manner as described in the Additional Terms and Conditions at the bottom of this Agreement, or if MERCHANT failed to obtain specific authorization in advance from ACHQ to complete the transaction and/or the customer has certified in writing to ACHQ or his financial institution that no authorized user made or authorized the transaction;
    9. where security procedures were not followed;
    10. where the customer’s financial institution or ACHQ has information that MERCHANT fraud occurred at the time of the transaction(s), or the transaction is not a sale by MERCHANT whether or not such transaction(s) was authorized by the customer;
    11. in any other situation where the check authorization was executed or a credit was given to MERCHANT in circumstances constituting a breach of any representation or warranty of MERCHANT or in violation of applicable law or where MERCHANT has not provided documents or resolved a customer dispute whether or not a transaction is charged back;
    12. a sales authorization was charged back and represented whether or not the customer knows or consents to this re-presentment;
    13. where MERCHANT does not provide copy of the authorization receipt as requested by ACHQ within forty-eight (48) hours from the time of such request. If, with respect to any one of MERCHANT’S outlets, the amount of or number of any counterfeit or fraud incidents becomes excessive, in the sole determination of ACHQ, MERCHANT will be charged back for all transactions. This Agreement may be terminated immediately without notice, and MERCHANT’S funds, including but not limited to those in incoming transactions and in MERCHANT’S designated account, shall be held pursuant to the provisions herein. ACHQ shall retain any fees related to a chargeback transaction. MERCHANT agrees that ACHQ will assess up to twenty-five dollars for each chargeback, or such increased or additional charges as may be established by ACHQ from time to time. Additionally, ACHQ shall have the same rights to debit MERCHANT’s account for transactions returned or not honored for any reason, including but not limited to insufficient funds, administrative or corporate returns, or any other kind of returned transaction.
27. CHARGEBACK AND RETURNS RESERVE ACCOUNT –Notwithstanding any other language to the contrary contained in this Agreement, ACHQ reserves the right to establish, without notice to MERCHANT, and MERCHANT agrees to fund a non-interest bearing Chargeback and Return Reserve Account, or demand other security and/or to raise rates hereunder, upon ACHQ’s reasonable determination of the occurrence of any of the following:
    1. MERCHANT engages in any processing of charges which create an overcharge to the customer by duplication of charges;
    2. Failure by MERCHANT to fully disclose the true nature or percentage of its actual or expected losses due to insufficient funds transactions, fraud, theft or deceit on the part of its customers, or due to returned chargebacks, or rejections by customers;
    3. Failure by MERCHANT to fully disclose the true nature of its business to ACHQ to permit a fully informed decision as to the suitability of MERCHANT for processing through ACHQ;
    4. Failure by MERCHANT to fully disclose the true ownership of MERCHANT’S business entity or evidence of fraud;
    5. Processing by MERCHANT of unauthorized charges or any other action which violates applicable risk management standards of ACHQ or is likely to cause loss;
    6. Any misrepresentation made by MERCHANT in completion of the MERCHANT Application or breach of any other covenant, warranty, or representation contained in this Agreement or applicable law including a change of type of business without prior written approval by ACHQ;
    7. MERCHANT has chargebacks or returns of any kind which exceed 1% of the total dollars processed by MERCHANT;
    8. Excessive number of requests from customers or issuing banks for retrieval of documentation;
    9. MERCHANT’S financial stability is in question or MERCHANT ceases doing business; or
    10. Upon notice of or termination of this Agreement. After payment or adequate provision for payment is made by ACHQ, for all obligations on the part of MERCHANT to ACHQ under this Agreement, MERCHANT may request ACHQ to disburse to MERCHANT any funds remaining in the Chargeback and Return Reserve Account unless otherwise agreed to by ACHQ. Such funds will not be disbursed to MERCHANT until the end of one hundred eighty (180) banking days after termination of this Agreement or ninety (90) banking days from the date of the last chargeback or return activity, whichever is later, unless ACHQ in its sole discretion has reason to believe that customer chargeback rights may be longer than such period of time or that loss is otherwise likely, in which event ACHQ will notify MERCHANT of such fact and ACHQ will set the date when funds shall be released. No monies held in the Chargeback and Return Reserve Account shall bear interest. Provisions applicable to the designated account are also applicable to this account
28. COLLECTIONS –MERCHANT acknowledges and agrees that when collection services are required, ACHQ may utilize an appropriately licensed third party to perform such collection services. MERCHANT further authorizes ACHQ to continue collection efforts for MERCHANT. If collections are unsuccessful after sixty (60) days, ACHQ shall discontinue collections and be absolved of all responsibility, except as stated in the provisions under the Guarantee programs detailed in the Additional Terms and Conditions.
29. INTENTIONALLY OMITTED
30. AUTHORIZATION RETRIEVAL REQUESTS – Whereby a financial institution, regulatory or law enforcement agency, or similar authority has demanded from ACHQ proof of valid customer authorization, in accordance with NACHA Rules, MERCHANT shall provide said proof of authorization to ACHQ within (2) business days. In the event that MERCHANT cannot provide the appropriate customer authorization, and ACHQ suffers a penalty enforced by NACHA, ACHQ shall have the right to offset such penalty and charge MERCHANT a minimum of ($100 up to a maximum of $10,000) per incident.
31. ELECTRONIC CHECK PROCESSING –ACHQ shall not be responsible for the settlement of any electronic transaction for which ACHQ has not received transactions Entries from MERCHANT for processing within twenty-four hours of the initial transaction date of the transaction. MERCHANT shall be required to submit all documentation related to the transactions to ACHQ at ACHQ’s request. MERCHANT shall make its books and records available to ACHQ in order to verify compliance with this agreement and in order to verify any information in an Entry.
32. ASSIGNMENT OF ELECTRONIC CHECKS – As of the date of this Agreement and by subscribing to ACHQ service, MERCHANT shall be deemed to have assigned to ACHQ, all of MERCHANT’s right, title and interest in any and all electronic checks, including any rights to treble or punitive damages permitted under applicable law. MERCHANT shall execute and deliver endorsements, instruments, and papers and shall do whatever is necessary under the laws of any applicable jurisdictions to secure and defend ACHQ’s rights and shall do nothing to prejudice those rights. MERCHANT shall cooperate with ACHQ in pursuing ACHQ’s rights, including suing or prosecution of the customer under all applicable laws.
33. NOTIFICATION OF PAYMENTS RECEIVED –MERCHANT acknowledges that ACHQ has the right to receive payment on all electronically processed checks acquired and MERCHANT will not attempt to collect on any such transactions. If any payment is tendered to MERCHANT, MERCHANT will notify ACHQ by telephone of the payment, endorse the check; sign it over to ACHQ and immediately mail the payment to ACHQ by certified mail. If customer pays cash, MERCHANT shall reimburse ACHQ by MERCHANT’s check.
34. COMPLIANCE AND DISCLOSURE OF INFORMATION – The MERCHANT’s rights and obligations with respect to any Entry are governed by the NACHA Rules (“the Rules”), this Agreement and applicable law. The Merchant agrees to comply with and be bound by “the Rules”. The Merchant agrees to comply with applicable state and federal law or regulation and Merchant warrants that it will not transmit any Entry that violates the laws of the United States, including, without limitation, regulations of the Office of Foreign Asset Control (OFAC). MERCHANT shall provide such information and certifications as ACHQ may reasonably require from time to time, to determine MERCHANT’S compliance with the terms and conditions of this Agreement and applicable law. MERCHANT further agrees to provide to ACHQ from time to time such information including, but not limited to, credit reports, personal and/or business financial statements, income tax returns, or other such information as ACHQ may request. MERCHANT grants to ACHQ continuing authority to conduct credit checks and background investigations and inquiries concerning MERCHANT and MERCHANT’S owner(s) including, but not limited to, character and business references and the financial condition of MERCHANT and MERCHANT’S owner(s). MERCHANT expressly authorizes ACHQ or its agents, attorneys, accountants, and representatives to provide and receive such information from any and all third parties directly, without further consent or authorization on the part of MERCHANT. ACHQ may share with others its credit, sales and other information. MERCHANT will not transfer, sell, or merge or liquidate its business or assets or otherwise transfer control of its business, change its ownership in any amount or respect, engage in any joint venture partnership or similar business arrangement, change its basic nature or method of business, types of products sold or engage in sales by phone or mail order without providing notice to ACHQ and provide ACHQ with the opportunity to terminate this Agreement.
35. DATA RETENTION – MERCHANT shall retain all records related to authorization, including all sales and credit receipts and authorizations for a period of no less than two years following the date of the transaction. If customer’s authorization instrument is handed back to customer then MERCHANT acknowledges that ACHQ will not be able to provide any check collection services beyond the third electronic presentment of the check. Failure to provide the customer’s authorization to ACHQ will result in cessation of collection efforts, and ACHQ will be entitled to immediately debit MERCHANT’S account for any previously processed and returned transactions
36. ADDITIONAL MERCHANT REPRESENTATIONS – MERCHANT agrees to permit ACHQ to audit MERCHANT upon reasonable notice. MERCHANT agrees that any outstanding amount(s) owed to ACHQ shall be subject to a 1.5% finance charge monthly. Any outstanding sums will be sent to an outside collection agency and charged the maximum amount of civil, legal and collections fees / charges as is allowed by law.
1 ADDITIONAL ACHQ RESPONSIBILITIES. ACHQ will accept Entries via MERCHANT’s hardware, software, or payment gateway on a 24-hour per day basis. ACHQ is only responsible for processing Entries that have arrived at its premises in a proper format and on a timely basis. ACHQ will use information provided by MERCHANT to Originate its Entries in the ACH. MERCHANT understands and agrees that ACHQ may reject MERCHANT’s Entries for any reason permitted in this Agreement and/or if acceptance of such Entry would cause ACHQ to potentially violate any federal, state or local law, rule statute, or regulation, including without limitation any Federal Reserve or other regulatory risk control program. At MERCHANT’s written request, ACHQ will make reasonable efforts to reverse or delete an Entry, but will under no circumstance be liable for the failure to comply with such request.
37. INDEMNIFICATION – MERCHANT hereby agrees to indemnify and hold ACHQ and its officers, directors, employees and agents harmless from any claim relating to or arising out of:
    1. MERCHANT’s breach of the representations and warranties of this Agreement;
    2. a dispute between MERCHANT and a customer regarding the action or inaction of MERCHANT;
    3. any dispute between MERCHANT and a MERCHANT Customer with respect to the alleged or actual failure by MERCHANT to process a transaction as requested by such customer or to MERCHANT’s failure to provide data security, and
    4. MERCHANT’s failure to comply with any of the provisions of this Agreement and applicable laws, Rules and/or regulations.
    5. MERCHANT further agrees to indemnify and hold ACHQ harmless from all claims, liability and expenses arising or resulting from any dispute or claim made against ACHQ by any third party arising out of MERCHANT’s breach of this Agreement or the Rule. Further, MERCHANT shall reimburse ACHQ for all expenses and costs, including attorney’s fees, with regard to the forgoing. MERCHANT warrants that it will notify ACHQ immediately of any breach of this Agreement.
38. NON-WAIVER –Neither the failure nor any delay on the part of ACHQ to exercise any right, remedy, power or privilege hereunder shall operate as a waiver thereof or give rise to an estoppel nor be construed as an agreement to modify the terms of this Agreement, nor shall any single or partial exercise of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver by a party hereunder shall be effective unless it is in writing and signed by the party making such waiver, and then such waiver shall apply only to the extent specifically stated in such writing.
39. ASSIGNMENT –MERCHANT may not assign or transfer any rights under this Agreement unless and until it receives the prior written approval of ACHQ. ACHQ may freely assign this Agreement, its rights, benefits and duties hereunder.
40. TERMINATION –This Agreement shall continue indefinitely unless and until terminated by either party. MERCHANT must provide sixty (60) days written notice to ACHQ of termination. ACHQ shall have the right to suspend or terminate this Agreement immediately and without notice to MERCHANT.
41. 4 INTENTIONALLY OMITTED
42. COUNTERPARTS –This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, such counterparts to constitute 
but one and the same instrument.
43. ENTIRE AGREEMENT –This Agreement is the complete and exclusive statement of the agreement between ACHQ and the MERCHANT with respect to the subject matter hereof and supersedes any prior agreement(s) between ACHQ and the MERCHANT with respect to the subject matter. In the event the performance of the services provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulation or government policy to which ACHQ, the Originating Depository Financial Institution (ODFI) or MERCHANT is subject, and which governs or affects transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy and ACHQ, the ODFI and MERCHANT shall incur no liability as a result of such changes.
44. AMENDMENTS –This Agreement is subject to amendment to conform to the Rules. Further, ACHQ may, from time to time, amend any provision of this Agreement, including, without limitation, those relating to the fees and charges payable by MERCHANT by providing written notice to MERCHANT of the amendment, and the amendment shall become effective unless ACHQ receives MERCHANT’s notice of termination of this Agreement within 7 days. Amendments due to changes in the Rules or any law or judicial decision may become effective on such shorter period of time as ACHQ may specify if necessary to comply with the applicable Rule, law or decision. No other amendments or modifications to this Agreement will be effective unless such changes are reduced to writing and are signed by the duly authorized party or parties to this Agreement and such Amendments are incorporated into and made a part of this document.
45. 
BINDING AGREEMENT; BENEFIT –This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns. This Agreement is not for the benefit of any other person or entity and no other person or entity shall have any right against ACHQ.
46. ATTORNEYS’ FEES –In the event that it becomes necessary for ACHQ to employ an attorney to enforce, interpret, mediate or arbitrate this Agreement, or collect a debit from MERCHANT, ACHQ shall be entitled to recover its reasonable attorneys’ fees, costs, and disbursements related to such dispute from MERCHANT.
47. GOVERNING LAW, VENUE, @amp;amp; JURISDICTION –MERCHANT shall comply with the Rules, Regulation E of the Federal Reserve Board, and the Electronic Fund Transfer Act. The Agreement shall be governed by the law of the state of Florida except those rules relating to conflicts of laws. MERCHANT acknowledges that this Agreement was formed in Florida upon its acceptance by ACHQ. All parties hereby submit to the exclusive jurisdiction and venue of the State of Florida, County of Manatee or Federal District Court for the Middle District of Florida for the purposes of any legal action arising in connection with this Agreement.
48. SEVERABILITY –If any provision of the Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, by court decision, statute, or rule (or arbitration) such holding shall not affect any other provisions of this Agreement. All other provisions or parts thereof shall remain in full force and effect and this Agreement shall, in such circumstances, be deemed modified to the extent necessary to render enforceable the provision hereof.
49. HEADINGS –The headings in this Agreement are used for reference purposes only. They shall not be deemed as part of this Agreement and shall not affect its interpretation.
50. SECURITY INTEREST –This Agreement is a security agreement under the Uniform Commercial Code. MERCHANT grants to ACHQ a security interest in and lien upon:
    1. the account designated by MERCHANT for settlement and all funds at any time in such account, whatever the source of such funds,
    2. the Chargeback and Return Reserve Account (as defined above) and all funds at any time in the Chargeback and Return Reserve Account, whatever the source of such funds,
    3. all MERCHANT’s rights relating to this Agreement including, without limitation, all rights to receive any payments or credits under this Agreement; and
    4. all MERCHANT deposit accounts now owned or hereafter acquired and the proceeds of all of the foregoing (collectively, the “Secured Assets”).
    5. Upon request of ACHQ, MERCHANT will execute one or more financing statements or other documents to evidence this security interest. MERCHANT authorizes ACHQ and appoints ACHQ its attorney in fact to sign its name to any financing statement used for the perfection of any security interest or lien granted in this Agreement. These security interests and liens will secure all of MERCHANT’s obligations under this Agreement and any other agreements between MERCHANT and ACHQ including, but not limited to, MERCHANT’s obligation to pay any amounts due to ACHQ. With respect to such security interests and liens, ACHQ will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. ACHQ may exercise its rights under this Agreement to collect any amounts due to ACHQ including, without limitation, rights of set-off and recoupment.
51. EFFECTIVE DATE – This Agreement shall be effective only upon acceptance by ACHQ.

2.0 ACKNOWLEDGEMENT OF ODFI RELATIONSHIP

1. GENERAL –MERCHANT hereby retains and appoints Company and its Originating Depository Financial Institution as MERCHANT’s exclusive data processing and collection agent for processing Entries originated by MERCHANT for Credit and Debit to accounts of Customers, in accordance with the terms and conditions contained herein. MERCHANT acknowledges that the services (the “Services”) provided by Company through its Third-Party Sender pursuant to this Agreement are by virtue of Third-Party Sender’s contractual relationship with an Originating Depository Financial Institution (“ODFI”), which is a federally insured financial institution regulated by Federal and state banking agencies (“Agencies” or “Agency”). Company, Third-Party Sender, ODFI, and the Agencies are relying upon the accuracy of all information provided by Merchant pursuant to this Agreement and Merchant’s performance of its obligations hereunder.
2. ODFI’s RIGHTS – MERCHANT agrees to assume the obligations of an Originator under the NACHA Rules for all Entries initiated by Company or its Third-Party Sender on behalf of MERCHANT. Company and Third-Party Sender are obligated to provide the ODFI with any information that the ODFI considers to be reasonably necessary to identify each Originator for which the ODFI transmits Entries. MERCHANT authorizes Company and its Third-Party Sender to provide any information regarding MERCHANT to the ODFI or applicable Agencies as may be requested by them. MERCHANT acknowledges that Company, its Third-Party Sender, the ODFI, and Agencies have the right to periodically review the volume and character of the Entries initiated by MERCHANT and MERCHANT’s business operations to evaluate the credit risk associated with processing Entries on behalf of MERCHANT. MERCHANT agrees to make payment to the ODFI for all Credit or Debit Entries originated by MERCHANT and for any Debit Entries returned by a Receiving Depository Financial Institution (“RDFI”).
3. ODFI IS A THIRD PARTY BENEFICIARY – MERCHANT and Company expressly acknowledge and agree that the ODFI is an express and intended third-party beneficiary of this Agreement, and that the ODFI has all the rights under this Agreement as if it were a party thereto, including, without limitation, the right to enforce any terms of the Agreement or assert claims against MERCHANT for breach of the Agreement.

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3.0 ACH DEBIT (PPD) – ADDITIONAL TERMS AND CONDITIONS

1. EQUIPMENT/SOFTWARE – MERCHANT must utilize a ACHQ-approved payment gateway, software, and approved method of electronic file transmission to use the Signature-Authorized Payments service. MERCHANTS who utilize electronic file transmission will not receive the benefit of any pre-verification services to determine if the CUSTOMER’s account or driver’s license is flagged by the national negative database for unpaid items, which may result in higher returns or chargebacks to MERCHANT’s account. Refer to Software Requirements section.
2. REQUIREMENTS FOR PROCESSING ACH DEBITS. MERCHANT – shall comply with the following conditions when processing ACH Debits and agrees to complete all transactions in accordance with the provisions of this Agreement and such rules of operation as may be established by ACHQ from time to time. MERCHANT shall accept only the following ACH Debits as source documents to initiate ACH debit entries through ACHQ;
   1. All demand deposit account ACH Debits must be drawn on or payable through a federally insured depository financial institution; be based on checking accounts where checks were issued with machine-readable with the bank routing number, account number and check serial number printed on the check, and be for an amount less than the check limit assigned by ACHQ.
   2. Customer shall authorize by signature written agreement containing ACH Debit amount and day of month to be debited from customer’s account.
   3. All items, goods and services purchased in a single transaction shall be included in the total amount on a form of proof of purchase;
   4. Omitted
   5. Once ACHQ authorizes the transaction, MERCHANT shall ensure that the proof of purchase contains the following correct information:
      1. the customer’s bank routing and account number from the MICR data;
      2. MERCHANT’s correct name and business address;
      3. the date of the transaction;
      4. the total cash price of the sale (including all applicable state, federal or local surcharges and taxes.
      5. After customer electronically accepts the receipt, MERCHANT shall deliver to the person presenting the ACH Debit a true and completed copy of the proof of purchase with the goo ds and services purchased;
      6. MERCHANT’s failure to input the correct routing number or account number into the Virtual Terminal will result in MERCHANT’s loss of guarantee for the ACH Debit.
      7. No ACH Debit may be altered after ACHQ authorizes acceptance of the ACH Debit. MERCHANT may not resubmit an electronic check or ACH Debit electronically or deposit it by any means once ACHQ authorizes a transaction. Failure to comply with the above requirements will, in addition to other penalties (such as but not limited to loss of guarantee on all ACH Debits), subject MERCHANT to chargebacks and may be grounds for immediate suspension/termination of services and indemnification of ACHQ by MERCHANT pursuant to this Agreement. YOU UNDERSTAND THAT IT IS A FEDERAL VIOLATION TO PROCESS DEBIT REQUESTS AGAINST A CONSUMER BANK ACCOUNT WITHOUT THE CUSTOMERS EXPRESSED AUTHORITY. YOU HEREBY ACKNOWLEDGE RECEIPT OF PROPER NOTICE THAT THE USE OF ANY COUNTERFEIT, FICTITIOUS, LOST, STOLEN, OR FRAUDULENTLY OBTAINED DEBIT INSTRUMENT OR DEVICE TO UNLAWFULLY INITIATE A DEBIT TRANSACTION IS PUNISHABLE BY A MAXIMUM OF $10,000.00 FINE, IMPRISONMENT FOR A TERM OF TEN YEARS, OR BOTH.
   6. UNACCEPTABLE TRANSACTIONS – In addition to the restrictions set out above and in any event, the following transactions are unacceptable for electronic processing. MERCHANT agrees not to submit any of the following transactions to ACHQ for electronic processing;
      1. MERCHANT shall not electronically process any ACH Debit drawn on any depository institution that is not federally insured or part of the ACH network,
      2. MERCHANT shall not electronically process any ACH Debit drawn on the personal checking account of MERCHANT or any of its agents or employees,
      3. MERCHANT shall not accept any third party items for electronic processing or ACH Debit made payable where the purpose is for the customer to receive cash or cash back,
      4. MERCHANT shall not submit for processing any transaction representing the financing of an existing obligation whether previously owed to MERCHANT, arising from the dishonor of an ACH Debit, electronic check or arising from a credit card, debit card or smart card dispute with t he MERCHANT,
      5. MERCHANT shall not submit a transaction for processing which represents an attempt to collect a chargeback,
      6. MERCHANT shall not submit an ACH Debit written for goods or services that are not concurrently provided to the customer, including any ACH Debit given for gift certificate, a layaway (except for the final payment) or for a similar transaction, or for goods or services provided to a third party,
      7. MERCHANT shall not submit an ACH Debit which is altered by the Merchant in any way
      8. MERCHANT shall not knowingly submit an ACH Debit on an account on which ACHQ previously denied authorization. MERCHANT’s submission of any of the above transactions for electronic processing may subject the MERCHANT to immediate suspension or termination and all funds of MERCHANT, including those in MERCHANT’S account, may be placed on hold.

.

1. Failure to comply with the above requirements will, in addition to other penalties (such as but not limited to loss of guarantee of ALL transactions), subject MERCHANT to chargebacks or withholding of funds and may be grounds for immediate suspension/termination of services and indemnification of ACHQ by MERCHANT pursuant to this Agreement. YOU UNDERSTAND THAT IT IS A FEDERAL VIOLATION TO PROCESS DEBIT REQUESTS AGAINST A CONSUMER BANK ACCOUNT WITHOUT ACCOUNT HOLDER’S EXPRESSED AUTHORITY. YOU HEREBY ACKNOWLEDGE RECEIPT OF PROPER NOTICE THAT THE USE OF ANY COUNTERFEIT, FICTITIOUS, LOST, STOLEN, OR FRAUDULENTLY OBTAINED DEBIT INSTRUMENT TO UNLAWFULLY INITIATE A DEBIT TRANSACTION IS PUNISHABLE BY A MAXIMUM OF A $10,000 FINE, IMPRISONMENT FOR A TERM OF TEN YEARS, OR BOTH. IT IS SPECIFICALLY UNDERSTOOD BY YOU THAT ANY TRANSACTION INITIATED AS AN UNAUTHORIZED MANUAL ENTRY OR DEPOSIT BY YOU AFTER YOU HAVE RECEIVED APPROVAL FOR ELECTRONIC DEPOSIT OF ACH TRANSACTION (S) OR IS INTENDED FOR ELECTRONIC DEPOSIT SHALL BE INTERPRETED AS AN UNLAWFUL DEBIT TRANSACTION PURSUANT TO THIS NOTICE. IN THE EVENT OF SUCH A VIOLATION, MERCHANT AGREES AND WARRANTS TO HOLD ACHQ AND ALL OF ITS ASSIGNS AND ASSOCIATES HARMLESS AND REIMBURSE ACHQ FOR THE TRANSACTION (S) WITHIN 24 HOURS OF SAID OCCURRENCE. IF MERCHANT REFUSES OR IS UNABLE TO REIMBURSE ACHQ FOR ANY SUCH OCCURRENCE, IT IS EXPRESSLY STATED AND UNDERSTOOD THAT THE MERCHANT IS IN DIRECT VIOLATION OF THIS AGREEMENT AND FEDERAL LAW, AND ACHQ WILL PURSUE ALL LEGAL, CIVIL, AND COLLECTION REMEDIES AS ARE POSSIBLE UNDER LAW AS REMEDY. FURTHERMORE, ACHQ’S CHECKS-BY- PHONE SERVICE IS NOT APPLICABLE FOR TELEMARKETING BUSINESSES (OR THE LIKE) IN WHICH THE PRIMARY FUNCTION OF THE BUSINESS IS OUTBOUND SALES CALLS. UNACCEPTABLE BUSINESSES FOR THIS PROGRAM INCLUDE COLD-CALLING, “BOILER ROOMS”, MAIL ORDER MARKETING, CREDIT REPAIR AND/OR CREDIT ESTABLISHMENT OPPORTUNITIES, VACATION AND/OR BENEFIT PACKAGES, AND INVESTMENT OPPORTUNITY OPERATIONS IN WHICH THERE IS NO PREEXISTING RELATIONSHIP BETWEEN THE MERCHANT AND THE CONSUMER WHEREBY MERCHANT IS ENGAGING PRIMARILY IN OUTBOUND CALL AND/OR OUTBOUND MAIL ACTIVITY TO INITIATE A CHECK BY PHONE TRANSACTION. IF MERCHANT VIOLATES THIS AGREEMENT BY PARTICIPATING IN SUCH BUSINESS PRACTICES, ACHQ SHALL IMMEDIATELY HOLD ALL MERCHANT’S FUNDS, CANCEL THIS AGREEMENT, DEBIT MERCHANT’S ACCOUNT FOR ALL RETURNS, AND TAKE OTHER LEGAL ACTION AS DEEMED NECESSARY BY ACHQ’S LEGAL COUNSEL, THE FEDERAL TRADE COMMISSION, THE UNITED STATES POSTMASTER GENERAL, AND/OR NACHA(National Automated Clearing House).
2. 
UNACCEPTABLE TRANSACTIONS –In addition to the restrictions set out above and in any event, the following transactions are unacceptable for electronic processing. MERCHANT agrees not to submit any of the following transactions to ACHQ for electronic processing;
3. MERCHANT shall not electronically process any electronic checks drawn on any depository institution that is not federally insured or part of the ACH network;
4. MERCHANT shall not electronically process any electronic checks drawn on the business or personal checking account of MERCHANT or any of its agents or employees;
5. MERCHANT shall not accept any third party items for electronic processing or electronic checks for “cash” or “cash back”;
6. MERCHANT shall not submit for processing any transaction representing the financing of an existing obligation whether previously owed to MERCHANT, arising from the dishonor of a check, a dishonor of an electronic ACH transaction or arising fro m a credit card, debit card or smart card dispute with the MERCHANT;
7. MERCHANT shall not submit a transaction for processing which represents an attempt to collect a chargeback;
8. MERCHANT shall not submit an electronic check for goods or services that are not provided to the customer, including any electronic ACH transaction given for a service contract, gift certificate, a layaway (except for the final payment) or for a similar transaction, or for goods or services provided to a third party;
9. MERCHANT shall not submit an electronic check which is altered by the Merchant in any way;
10. MERCHANT shall not knowingly submit a check on an account on which ACHQ previously denied authorization. MERCHANT’s submission of any of the above transactions for electronic processing may subject the MERCHANT to immediate suspension or termination and all funds of MERCHANT, including those in MERCHANT’S account, may be placed on hold or charged back to merchant.

4.0 CHECKS BY WEB (WEB) – ADDITIONAL TERMS AND CONDITIONS

1. EQUIPMENT/SOFTWARE –MERCHANT must utilize a ACHQ-approved payment gateway, software, and approved method of electronic file transmission to use the Web-Authorized Payments service. MERCHANT may be required to submit a file for testing purposes prior to using the Web-Authorized Payments service if MERCHANT utilizes electronic file transmission. MERCHANTS who utilize electronic file transmission will not receive the benefit of any pre- verification services to determine if the CUSTOMER’s account or driver’s license is flagged by the national negative database for unpaid items, which may result in higher returns or chargebacks to MERCHANT’s account. Refer to Software Requirements section.
2. DATA RETENTION; VERIFICATION AND SECURITY REQUIREMENTS –Merchant agrees to complete all transactions in accordance with the provisions of this Agreement, the Rules and such rules of operation as may be established by ACHQ from time to time. Merchant shall retain data on file adequate to permit remaking of Entries for seven (7) banking days following the date of their transmittal by ACHQ as provided herein, and shall provide such data to ACHQ upon its request. Merchant represents and warrants that it shall ensure that the financial information it receives is protected by security practices and procedures that include
   1. (i) physical security to protect against theft, tampering or damage,
   2. (ii) personnel and access controls to protect against unauthorized access and use,
   3. (iii) network security to ensure secure capture, storage and distribution,
   4. (iv) at least 128-bit RC4 encryption technology,
   5. (v) commercially reasonable fraud detection systems,
   6. (vi) procedures to verify routing numbers and authenticate customer identity, and procedures to establish credit-worthiness and exposure limits for its customers, and
   7. (vii) MERCHANT’s Internet payment system must clearly notify the customer that they are initiating an ACH debit authorization and MERCHANT’s authorized payment gateway shall obtain a customer authorization in the form of an electronically signed ACH authorization or similarly authenticated (unique security code or PIN) in accordance with the Rules that clearly demonstrates the customer’s assent to authorization for each transaction submitted for electronic processing.
3. Merchant agrees that it shall conduct or have conducted annual audits to ensure that the financial information it obtains from its customers is protected by security practices and procedures that include, at a minimum level, the practices set forth in (i) through (iii), herein above. MERCHANT or MERCHANT’S 3rd party software provider shall cooperate with ACHQ to test MERCHANT’s Internet payment gateway and for any ongoing support issues. In all cases, CUSTOMER will provide check information via Internet and MERCHANT’s payment gateway. Merchant must obtain the customer’s authorization in accordance with the Rules that clearly demonstrates the customer’s assent to authorization prior to initiating the ACH debit. In addition, if customer is providing recurring payment authorization, customer must be notified with the method to revoke its authorization. All items, goods and services purchased in a single transaction shall be included in the total amount on a single ACH authorization receipt and all entries must contain the correct customer bank routing, account, and check numbers, MERCHANT’s correct name and telephone number; the date of the transaction, the total cash price of the sale (including all applicable state, federal or local surcharges and taxes) or the amount to be charged if a partial payment is made in cash or by credit card or the amount to be charged as the remaining balance owing after the deposit has been made, Customer’s personal information including but not limited to CUSTOMER’s full name, address, telephone number, driver’s license state and number, and a disclosure statement that CUSTOMER understands he/she is authorizing MERCHANT to process an ACH debit entry to the CUSTOMER’s account. After customer authenticates the entry, MERCHANT’s payment gateway must prompt the customer to print the authorization and to retain a copy and no transaction may be altered after ACHQ authorizes acceptance of the ACH transaction. MERCHANT may not resubmit the transaction electronically or deposit the original source document by any means, once ACHQ authorizes a transaction. Failure to comply with the above requirements will, in addition to other penalties, subject MERCHANT to chargebacks or withholding of funds and may be grounds for immediate suspension/termination of services. MERCHANT ACKNOWLEDGES AND UNDERSTANDS THAT IT IS A FEDERAL VIOLATION TO PROCESS DEBIT REQUESTS AGAINST A CONSUMER BANK ACCOUNT WITHOUT ACCOUNT HOLDER’S EXPRESSED AUTHORITY. MERCHANT HEREBY ACKNOWLEDGE RECEIPT OF PROPER NOTICE THAT THE USE OF ANY COUNTERFEIT, FICTITIOUS, LOST, STOLEN, OR FRAUDULENTLY OBTAINED DEBIT INSTRUMENT TO UNLAWFULLY INITIATE A DEBIT TRANSACTION IS PUNISHABLE BY A MAXIMUM OF A $10,000 FINE, IMPRISONMENT FOR A TERM OF TEN YEARS, OR BOTH. IT IS SPECIFICALLY UNDERSTOOD BY MERCHANT THAT ANY TRANSACTION EVENT INITIATED AS AN UNAUTHORIZED MANUAL ENTRY OR DEPOSIT BY MERCHANT AFTER MERCHANT HAS RECEIVED APPROVAL FOR ELECTRONIC DEPOSIT OF ACH TRANSACTION (S) OR IS INTENDED FOR ELECTRONIC DEPOSIT SHALL BE INTERPRETED AS AN UNLAWFUL DEBIT TRANSACTION PURSUANT TO THIS NOTICE. IN THE EVENT OF SUCH A VIOLATION, MERCHANT AGREES AND WARRANTS TO HOLD ACHQ AND ALL OF ITS ASSIGNS AND ASSOCIATES HARMLESS AND REIMBURSE ACHQ FOR THE TRANSACTION (S) WITHIN 24 HOURS OF SAID OCCURRENCE. IF MERCHANT REFUSES OR IS UNABLE TO REIMBURSE ACHQ FOR ANY SUCH OCCURRENCE, IT IS EXPRESSLY STATED AND UNDERSTOOD THAT THE MERCHANT IS IN DIRECT VIOLATION OF THIS AGREEMENT AND FEDERAL LAW, AND ACHQ WILL PURSUE ALL LEGAL, CIVIL, AND COLLECTION REMEDIES AS ARE POSSIBLE UNDER LAW AS REMEDY.
4. UNACCEPTABLE TRANSACTIONS –In addition to the restrictions set out above and in any event, the following transactions are unacceptable for electronic processing. MERCHANT agrees not to submit any of the following transactions to ACHQ for electronic processing;
   1. MERCHANT shall not electronically process any electronic checks drawn on any depository instit ution that is not federally insured or part of the ACH network,
   2. MERCHANT shall not electronically process any electronic checks drawn on the business or personal checking account of MERCHANT or any of its agents or employees,
   3. MERCHANT shall not submit an electronic check for goods or services that are not provided to the customer,
   4. MERCHANT shall not submit an electronic check which is altered by the MERCHANT in any way. MERCHANT’s submission of any of the above transactions for electronic processing may subject the MERCHANT to immediate suspension or termination, and all funds of MERCHANT, including those in MERCHANT’S account, may be placed on hold or charged back to MERCHANT.
5. INTENTIONALLY OMITTED
6. REQUIREMENTS FOR PROCESSING CHECKS BY WEB –MERCHANT agrees to complete all transactions in accordance with the provisions of this Agreement, the Rules and such rules of operation as may be established by ACHQ from time to time. MERCHANT shall retain data on file adequate to permit remaking of Entries for seven (7) banking days following the date of their transmittal by ACHQ as provided herein, and shall provide such data to ACHQ upon its request. MERCHANT represents and warrants that it shall ensure that the financial information it receives is protected by security practices and procedures that include
   1. (i) physical security to protect against theft, tampering or damage,
   2. (ii) personnel and access controls to protect against unauthorized access and use,
   3. (iii) network security to ensure secure capture, storage and distribution,
   4. (iv) at least 128-bit RC4 encryption technology,
   5. (v) commercially reasonable fraud detection systems,
   6. (vi) procedures to verify routing numbers and authenticate customer identity, and procedures to establish credit-worthiness and exposure limits for its customers, and
   7. (vii) MERCHANT’s payment gateway must clearly notify the customer that they are initiating an ACH debit authorization and MERCHANT’s authorized payment gateway shall obtain a customer authorization in the form of an electronically signed ACH authorization or similarly authenticated (unique security code or PIN) in accordance with the Rules that clearly demonstrates the customer’s assent to authorization for each transaction submitted for electronic processing.
7. MERCHANT agrees that it shall conduct or have conducted annual audits to ensure that the financial information it obtains from its customers is protected by security practices and procedures that include, at a minimum level, the practices set forth in (i) through (iii), herein above. MERCHANT or MERCHANT’S 3rd party software provider shall cooperate with ACHQ to test MERCHANT’s Internet payment gateway and for any ongoing support issues. In all cases, CUSTOMER will provide check information via Internet and MERCHANT’s payment gateway and payment shall for an amount less than the check limit assigned by ACHQ. MERCHANT must obtain the customer’s authorization in accordance with the Rules that clearly demonstrates the customer’s assent to authorization prior to initiating the ACH debit. In addition, if customer is providing recurring payment authorization, customer must be notified with the method to revoke its authorization. All items, goods and services purchased in a single transaction shall be included in the total amount on a single ACH authorization receipt and all entries must contain the correct customer bank routing, account, and check numbers, MERCHANT’s correct name and telephone number; the date of the transaction, the total cash price of the sale (including all applicable state, federal or local surcharges and taxes) or the amount to be charged if a partial payment is made in cash or by credit card or the amount to be charged as the remaining balance owing after the deposit has been made, Customer’s personal information including but not limited to CUSTOMER’s full name, address, telephone number, driver’s license state and number, and a disclosure statement that CUSTOMER understands he/she is authorizing MERCHANT to process an ACH debit entry to the CUSTOMER’s account. After customer authenticates the entry, MERCHANT’s payment gateway must prompt the customer to print the authorization and to retain a copy and no transaction may be altered after ACHQ authorizes acceptance of the ACH transaction. MERCHANT may not resubmit the transaction electronically or deposit the original source document by any means, once ACHQ authorizes a transaction. Failure to comply with the above requirements will, in addition to other penalties, subject MERCHANT to chargebacks or withholding of funds and may be grounds for immediate suspension/termination of services.

5.0 Services Addendum

1. SERVICES
   1. Provision. Subject to and in accordance with the terms of this addendum, ACHQ shall (directly or via affiliates and subcontractors) provide to MERCHANT the Services beginning on the Services Commencement Date in all material respects in accordance with the terms and conditions of this addendum and consistent with all applicable Laws, Rules and Regulations. This addendum shall begin on the Effective Date and will continue for the Term specified on the Cover Page.
   2. Services Exclusive to MERCHANT.The Services offered under this addendum shall be used solely by the MERCHANT for its own commercial use. MERCHANT may not use the Services for the benefit of any third party. Any attempt by MERCHANT to use the Services for, or on behalf of a third party, shall immediately terminate this addendum and may result in MERCHANT paying additional charges and fees.
2. BILLING AND PAYMENT
   1. Fees. MERCHANT shall pay to ACHQ the Fees set forth on the Cover Page in accordance with the terms and conditions of this addendum. ACHQ may modify such Fees at any time upon written notice. ACHQ may impose on MERCHANT additional fees; administrative charges; and other charges, fees or surcharges for the costs ACHQ incurs in complying with governmental programs or third party requirements and contracts. The amount of the fees, surcharges and charges imposed may vary.
   2. NSF Fees. In addition to the Fees contemplated in Section 2.1above and set forth on the Cover Page, MERCHANT shall fully compensate ACHQ for any NSF or other return fees or charges, including any interest on any amounts due to ACHQ as a result of any NSF, unavailable funds or return charges and fees at a rate up to the maximum permitted by law, and (ii) for any reasonable attorney’s fees, and costs and expenses for collections.
   3. Collection of Fees. ACHQ may collect all fees owed by MERCHANT immediately as they become due from MERCHANT’s Account on a daily basis Monday through Friday via electronic draft. Monday’s draft will include any transactions occurring during the immediately preceding Saturday or Sunday. By entering into this addendum, MERCHANT is authorizing ACHQ to debit MERCHANT or MERCHANT’s Account by electronic draft for all Fees contemplated by this addendum. MERCHANT authorizes ACHQ to initiate an ACH/electronic debit or electronic check from the Account identified by MERCHANT herein for all Fees contemplated by this addendum on the agreed upon dates herein. MERCHANT represents that all ACH transactions it authorizes comply with all applicable Laws, Rules and Regulations. MERCHANT understands and represents that this authorization will remain in full force and effect until it notifies ACHQ in writing that MERCHANT wishes to revoke this authorization. MERCHANT understands that ACHQ requires at least seven (7) days prior notice in order to cancel this authorization.
   4. Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited, to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). MERCHANT is responsible for paying all Taxes associated with its purchases hereunder. If ACHQ has the legal obligation to pay or collect Taxes for which MERCHANT is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by MERCHANT, unless MERCHANT provides ACHQ with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ACHQ is solely responsible for taxes assessable against it based on its income, property and employees.
3. SECURITY
   1. Access to Account; ID and Passwords.MERCHANT shall set up an ID and password in order to obtain secured access to the Services. MERCHANT shall only grant access to such ID and password to Authorized Employees who need access in order for MERCHANT to conduct its business. MERCHANT shall be solely responsible for maintaining adequate security and control of such ID and password (or any other codes for purposes of providing MERCHANT access to the Services). ACHQ shall be entitled to rely on information it receives from MERCHANT through the secured access and may assume that all such information was transmitted by an Authorized Employee of MERCHANT. MERCHANT shall comply with all ACHQ recommendations and notices regarding the security of MERCHANT’s ID, password and ACHQ Account(s).
   2. Security Requirements. MERCHANT will establish and maintain such security and privacy measures and procedures as are required by any applicable Laws, Rules and Regulations and that which are reasonably practicable to provide for the safe custody, control and access of any (i) customer Data, and (ii) ACHQ’s Confidential Information in its possession and to prevent unauthorized access thereto or use thereof.
   3. DataSecurity. (a) MERCHANT shall be solely responsible for the security of the Data residing on its servers (or third party servers designated by MERCHANT; e.g., a Web hosting company, processor or other service provider). MERCHANT shall comply with all applicable Laws, Rules and Regulations governing the security, collection, retention and use by MERCHANT of financial information (including checking account numbers, and all other personally identifiable customer information). MERCHANT agrees to provide notice to MERCHANT’s customers by all appropriate means, including but not limited to, by providing information on MERCHANT’s web site that discloses how and why personal and financial information is collected and used, including uses governed by this addendum.(b) MERCHANT agrees that it is solely responsible for verifying the accuracy and completeness of all Transactions submitted to ACHQ associated with MERCHANT’s use of the Services.(c) MERCHANT will comply with all then-current legal obligations and industry standard security measures, as applicable, including but without limitation those issued by industry associations and the Federal Trade Commission, associated with the collection, security, dissemination and destruction of Data and Transaction data, and expressly including the Payment Card Industry (PCI) Data Security Standard. MERCHANT warrants that MERCHANT has taken such precautions as are necessary to ensure that MERCHANT’s server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that MERCHANT’s system is breached and an unauthorized third party has access to or has accessed Data or Transaction data, MERCHANT shall notify ACHQ, in writing, promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
   4. Data Retention.MERCHANT shall compile and retain permanent records of all Transactions and Data for MERCHANT’s reference. Except as otherwise provided herein, at no time shall ACHQ have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or Data collected or processed by ACHQ
4. TERMINATION
   1. Termination for Cause.ACHQ may terminate this addendum for cause
      1. upon thirty (30) days written notice to MERCHANT for a material breach if such breach remains uncured at the expiration of such period, or
      2. immediately and without any notice to MERCHANT
         1. if MERCHANT becomes the subject of a petition in bankruptcy or any other proceeding relating insolvency, receivership, liquidation or assignment for the benefit of creditors, or
         2. for MERCHANT’s gross or willful misconduct, illegal activity, recurring breach, gross or willful breach of this addendum or if required by any federal, state or local agency or corresponding financial institution.
      3. Payment Upon Termination.Upon termination for cause by ACHQ, MERCHANT shall pay any unpaid Fees, including with respect to any Transactions initiated by MERCHANT prior to any termination. In no event shall any termination relieve MERCHANT of the obligation to pay any Fees for Transactions initiated prior to the effective date of termination. The authorization to debit any of MERCHANT’s accounts or MERCHANT’s principals shall continue for up to ninety (90) days from the effective date of such termination for fees. Such fees and costs that ACHQ may debit MERCHANT’s account, include but are not limited to fees for any services performed pursuant to this addendum, NSF or other return fees or charges, including any interest on any amounts due to ACHQ as a result of any NSF, unavailable funds or return charges and fees, reasonable and necessary attorney’s fees, costs of court and other costs reasonably incurred by ACHQ or on ACHQ’s behalf with respect to the collection of such unpaid fees.
   2. INDEMNIFICATION
      1. MERCHANT shall defend, indemnify, and hold harmless ACHQ and its affiliates, subsidiaries, and any of their officers, directors, agents and employees, from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorney’s fees, all Discovery expenses, and other litigation related expenses) incurred by ACHQ, arising out of or relating to
         1. any breach or alleged breach by MERCHANT of any representation, warranty, or obligation of MERCHANT set forth in this addendum;
         2. any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by MERCHANT and/or any of MERCHANT’s employees, agents or customers;
         3. The reliability, accuracy, or legitimacy of data submitted by MERCHANT to ACHQ;
         4. any other violation of this addendum;
         5. claims by MERCHANT’s customers, including, but without limitation, claims relating to the disclosure of consumer data;
         6. any alleged or actual violation by MERCHANT of any applicable Laws, Rules or Regulations including but not limited to
            1. the Gramm-Leach-Bliley Act;
            2. the Restore Online Shoppers’ Confidence Act; or
            3. any regulatory body or agency having jurisdiction over the subject matter hereof;
         7. any investigation or request for information, whether formal or informal, from any governmental agency or any private party relating to MERCHANT or to any Services provided to MERCHANT; or
         8. any violation of MERCHANT’s Certification of Permissible Purpose and addendum to Provide Notice of Adverse Action, and Acknowledgement of Training on FCRA Obligations.
      2. In the event MERCHANT causes fines and/or penalties to be charged to ACHQ by any entity, MERCHANT agrees, to immediately reimburse ACHQ for said fines or penalties.
   3. LIMITATION OF LIABILITY
      1. UNDER NO CIRCUMSTANCES WILL ACHQ (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) OR ANY OF ITS AFFILIATES OR VENDORS (OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING), INCLUDING, BUT WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
      2. ACHQ’S TOTAL LIABILITY TO MERCHANT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE COMPENSATION ACHQ RECEIVED FOR PROVIDING THE SERVICES TO MERCHANT DURING THE THIRTY (30) DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000, WHICHEVER IS LESS.
      3. MERCHANT AGREES THAT THIS IS A REASONABLE ALLOCATION OF RISK WHICH ACHQ HAS RELIED UPON IN PRICING ITS SERVICES AND WITHOUT WHICH ACHQ WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
      4. MERCHANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED TO MERCHANT BY ACHQ “AS IS” AND NEITHER THE SERVICES NOR ANY OTHER TECHNOLOGY, CONTENT, INTELLECTUAL PROPERTY, NOR ANY OTHER INFORMATION, DATA, PRODUCTS, OR SERVICES, WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE, AND THAT MERCHANT’S SOLE REMEDY FOR ANY ISSUE RELATED TO OR ARISING FROM THE SERVICES, AND ACHQ’S SOLE LIABILITY SAME, WILL BE TO TERMINATE THIS AGREEMENT AND DISCONTINUE MERCHANT’S USE OF THE SERVICES.
      5. ACHQ SHALL NOT BE LIABLE FOR ANY IMPROPERLY PROCESSED OR UNAUTHORIZED OR ILLEGAL TRANSACTIONS OR ILLEGAL OR FRAUDULENT ACCESS TO MERCHANT’S ACCOUNT, DATA OR TRANSACTION DATA. ACHQ’S LIABILITY FOR UNAUTHORIZED TRANSACTIONS SOLELY ATTRIBUTABLE TO THE NEGLIGENCE OF ACHQ IS LIMITED PURSUANT TO THIS AGREEMENT.
   4. MERCHANT’s REPRESENTATIONS AND WARRANTIES – MERCHANT represents and warrants that:
      1. Capacity to Contract – MERCHANT has legal capacity and full power and authority to execute, deliver and perform this addendum and the execution, delivery and performance of this addendum has been duly authorized and approved by all necessary corporate authorities and does not require any further authorization or consent.
      2. Authorized Use of Data –MERCHANT (including its employees or agents) (i) has obtained all required approvals from its customers relating to the Services, including but not limited to, approval for the collection of certain data from MERCHANT’s customer and such approvals MERCHANT obtained from MERCHANT’s customers comply with all applicable Laws, Rules and Regulations and comply with MERCHANT’s Certification of Permissible Purpose and addendum to Provide Notice of Adverse Action, and Acknowledgement of Training on FCRA Obligations, and (ii) will maintain proof of all such approvals and provide such proof to ACHQ at ACHQ’s request.
      3. Compliance with Law and ACHQ Guidelines – MERCHANT will comply, at MERCHANT’s own expense, with all laws, policies, guidelines, regulations, ordinances, and rules applicable to MERCHANT, this addendum, MERCHANT’s business or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, but without limitation, the rules promulgated by industry associations, the FTC, the electronic communication rules of the CAN-SPAM Act, the privacy requirements of the Gramm Leach Bliley Act and regulations thereof and the Restore Online Shoppers’ Confidence Act and regulations thereof. In addition, MERCHANT warrants and represents that it will comply with all the current policies, procedures and guidelines of ACHQ governing the Services, including, but without limitation, this addendum, the Services Documentation and the Certification of Permissible Purpose and addendum to Provide Notice of Adverse Action, and Acknowledgement of Training on FCRA Obligations, as may be amended by ACHQ, in its sole discretion, from time to time.
      4. Data Use Compliance –MERCHANT (i) will use Data strictly in accordance with the FCRA and all other Laws, Rules and Regulations and (ii) will comply with all of the obligations, duties and responsibilities as set forth in this addendum and all applicable Laws, Rules and Regulations, which provide for obligations, duties and responsibilities of users of consumer reports and other Data.
      5. Accuracy of MERCHANT’s Representations– All representations and statements made and information supplied by MERCHANT in this addendum, or in any other document relating hereto by MERCHANT or on MERCHANT’s behalf, including the Application and any supporting documentation, are true, accurate and complete in all material respects. MERCHANT hereby authorizes ACHQ to investigate and confirm the information submitted by MERCHANT herein. For this purpose, ACHQ or its corresponding banks may utilize credit bureau reporting agencies and/or its own agents and all other legal means. The Parties agree that MERCHANT’s Application and its supporting documentation and MERCHANT’s Certification of Permissible Purpose and addendum to Provide Notice of Adverse Action, and Acknowledgement of Training on FCRA Obligations are incorporated herein for all purposes as if set forth verbatim herein. MERCHANT will promptly update in writing any changes to any information MERCHANT has previously supplied.
      6. Lawful Business –MERCHANT is engaged in a lawful business and is duly licensed to conduct such business under the laws of all jurisdictions in which MERCHANT conducts business.
      7. Violation of Law – The Services will not be used for transactions in violation of any law, including, but without limitation, the sanctions laws administered by the OFAC or any other Laws, Rules and Regulations. MERCHANT further represents and warrants that it will not use the Services in any manner, or in furtherance of any activity that may cause ACHQ to be subject to investigation, prosecution, or legal action.
   5. DECLINATION –ACHQ reserves the absolute right to decline to provide MERCHANT the Services if ACHQ, in its sole discretion, believes that MERCHANT is using or may use the Data or the Services for a purpose other than a permissible purpose under this addendum or applicable law including, without limitation, the FCRA or the Restore Online Shoppers’ Confidence Act.
   6. REVIEW AND AUDIT RIGHTS –
      1. Reviews and Audits – ACHQ shall have the right to conduct a review/audit of MERCHANT’s use of the Services and Data no more than once each year upon reasonable notice to MERCHANT, and additionally if at any time ACHQ has a reasonable basis to believe that MERCHANT is not in compliance with the terms and conditions of this addendum. MERCHANT agrees to cooperate with such reviews/audits. Said review/audit shall occur during normal business hours, and in such a manner as to minimize interference with MERCHANT’s business activities. Reviews/audits may consist of written questionnaires, telephone and/or live interviews, and/or on-site inspections of MERCHANT’s records, operations and procedures related to MERCHANT’s use of Services and Data and related to this addendum which may include without limitation MERCHANT’s daily log files showing all the inquiries submitted to ACHQ. MERCHANT agrees to comply with all such requests and all other reasonable requests by ACHQ in its efforts to verify MERCHANT’s compliance with the Terms and Conditions of this addendum.
      2. Non-Compliance with Reviews and Audits – Should a review/audit reveal that MERCHANT is not in compliance with this addendum and/or all Laws, Rules and Regulations or if compliance cannot be verified, ACHQ may immediately suspend MERCHANT’s access to the Services and Data and create a relevant plan to cure MERCHANT’s non-compliance. Once a plan has been created and a resolution period established, MERCHANT must provide written certification to ACHQ that all conditions of the relevant plan to cure are complete before the expiration of the resolution period. If the conditions in the plan to cure are not completed pursuant to the same, ACHQ may terminate this addendum on written notice to MERCHANT. Nothing in this Section shall be construed to limit any of ACHQ’s other rights or remedies under this addendum.
   7. CONFIDENTIALITY – Each Party represents, warrants, guarantees and agrees that any information concerning the other Party which comes into its possession shall be confidential and, unless indicated otherwise in writing, shall only be shared with ACHQ’s corresponding banks, financial institutions or data providers, or as otherwise required by law. MERCHANT agrees that ACHQ’s corresponding banks or financial institutions can share information concerning MERCHANT upon ACHQ’s request, provided that such information will not be used or divulged to any other third party, except as necessary to permit the activities contemplated under the addendum and as required by law.
   8. DISPUTES – Any and all claims, demands, disputes, differences, controversies, and misunderstandings, whether in contract, tort or a combination thereof, arising under, out of, in connection with, or in relation to this addendum, or with operations carried out under this addendum, including but without limitation to any dispute as to the validity, interpretation, enforceability or breach of this addendum, shall be brought in a state court sitting in Collin County, Texas or the Sherman Division of the United States District Court for the Eastern District of Texas, and each of the Parties irrevocably submits to the exclusive and personal jurisdiction of each such court in any action or proceeding and waives any objection it may now have or hereafter have to venue or convenience of forum.
   9. APPLICABLE LAW – This addendum shall be deemed to be made and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the state of Florida without regard to its conflict of laws principles. No action, regardless of form, arising out of or in conjunction with the subject matter of this addendum may be brought by MERCHANT more than one (1) year after the cause of action arose.
   10. ASSIGNMENT – MERCHANT shall not assign this addendum or any of its rights or duties hereunder without ACHQ’s prior written consent. This addendum shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. ACHQ may assign this addendum to an affiliate, acquiror of 50% or more of ACHQ’s business (by way of stock sale or merger) or successor in interest upon written notice to MERCHANT.
   11. RELATIONSHIP OF THE PARTIES – The Parties herein are independent contractors to each other and nothing in this addendum shall make them joint venturers, partners, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise.
   12. NOTICES –All notices to MERCHANT shall be given electronically to the electronic mail address provided by MERCHANT during its application for the Services. All notices from MERCHANT to ACHQ must be in writing and sent via U.S. Mail or courier to:ACHQ, Inc.
       1611 12th St East, Suite A
       Palmetto, FL 34221
   13. MODIFICATIONS– MERCHANT may not amend, modify, or change any provision of this addendum, nor consent to any departure unless the same is in writing and signed by ACHQ, and then such consent by ACHQ will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, ACHQ may amend this addendum at any time upon written or electronic notice to MERCHANT of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of Fees, will become effective upon at least thirty (30) days notice. If MERCHANT does not agree to such amendments, MERCHANT’s sole remedy shall be to terminate this addendum by providing a written notice to ACHQ.
   14. SEVERABILITY –If any provision of this addendum is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this addendum.
   15. WAIVER – No failure to exercise and no delay by either Party exercising any right, remedy or power under this addendum shall constitute a waiver of that right. The waiver by any Party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.
   16. FORCE MAJEURE –Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the addendum due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Services by a third party by any means, including but without limitation, DDOS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services, or other catastrophes or any other occurrences which are beyond such Party’s reasonable control (each a “Force Majeure Event”), provided that the Party delayed will provide the other Party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this addendum be excused for any Force Majeure Event.
   17. TELEPHONE RECORDING – MERCHANT acknowledges, agrees and consents that ACHQ, upon notice, may monitor and record any customer service telephone conversations at any time. The decision to record any conversation shall be solely in ACHQ’s discretion, and ACHQ shall have no liability for doing so or failing to do so.
   18. ENTIRE ADDENDUM –This addendum together with all of ACHQ’s policies referenced herein sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this addendum. MERCHANT acknowledges that this addendum reflects an informed, voluntary allocation between ACHQ and MERCHANT of all risks (both known and unknown) associated with the Services. In the event of a conflict between the Terms of Use and this addendum, the latter shall govern
   19. SURVIVAL – The following provisions of this addendum Sections: 2 (Billing and Payments), 5 (Indemnification), 6 (Limitation of Liability), 7 (Representations and Warranties), 10 (Confidentiality), 11 (Disputes), 12 (Applicable Law), 18 (Severability, Headings), 22 (Entire addendum), and 23 (Survival) shall survive termination or expiration of this addendum.
   20. DEFINITIONS –As used in this addendum, the following terms shall have the meanings herein specified unless the context otherwise requires:
       1. Account: means the account MERCHANT opens at a ACHQ corresponding bank for purposes of using the Services which is specified on the Cover Page.
       2. Addendum:refers to this addendum “7.0 Identification and Verification Services Addendum” of the “ACHQ Terms and Conditions” document.
       3. Application: means the form presented to MERCHANT along with other application materials by ACHQ.
       4. Authorized Employees: means MERCHANT employees (including any agents and contractors) with need to access relevant data in order to perform MERCHANT’s business.
       5. BSA: means The Bank Secrecy Act, also known as the Currency and Foreign Transactions Reporting Act, 31 U.S.C. § 5311 et seq. and 12 U.S.C. §§ 1818(s), 1829(b) and 1951-1959.
       6. Certification of Permissible Purpose and addendum to Provide Notice of Adverse Action, and Acknowledgement of Training on FCRA Obligations: means the certification of permissible purpose document executed by MERCHANT on a form prescribed by ACHQ.
       7. Data: means data as defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and all applicable Laws, Rules and Regulations and includes personal, financial and other information regarding individuals and entities used to determine relationship viability with the same.
       8. Discovery: means the pre-trial investigation process, which includes but is not limited to, depositions, interrogatories, requests for admissions, document production requests and requests for inspection.
       9. Domain: means the Web site or sites operated by or for ACHQ under the URL https://www.ACHQ.com and related URLs.
       10. FCRA: means The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
       11. Laws, Rules and Regulations: includes, but is not limited to, the FCRA, Gramm-Leach-Bliley Act, the Restore Online Shoppers’ Confidence Act, all applicable banking laws, any and all applicable U.S., international, state and local laws, rules and regulations.Fees: means the Fees specified on the Cover Page, as they may be amended by ACHQ, from time to time, pursuant to the terms of this addendum, as well as any other fees, costs or expenses specified in this addendum.
       12. Financial Institution: means any of ACHQ’s corresponding banks or financial institutions.
       13. FTC: means the United States Federal Trade Commission.
       14. NSF: means insufficient funds.
       15. OFAC: means The Office of Foreign Assets Control of the United States Department of the Treasury.
       16. Privacy Policy: means ACHQ’s privacy policy available at https://www.ACHQ.com/privacy, which policy is incorporated herein by reference and made a part of this addendum.
       17. Services: means the check verification Services described on the Cover Page.
       18. Services Documentation: means, collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to MERCHANT and that are intended for use in connection with the Services.Taxes: shall have the meaning given to it in Section 2.4. of this Addendum.
       19. Transaction(s): means any check verification or other related transaction, completed or submitted by MERCHANT to ACHQ pursuant to this addendum.

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ACHQ APPLICATION NOTICES

version 2.1 – effective 20 September 2019

Notices

• Authorizations must be kept on file for no less than 2 years.
• Existing relationship between Merchant and customer is required to process checks initiated by phone authorization or Bill Pay.
• A relationship exists if the customer has purchased goods/services from the Merchant within the last 2 years OR there is a written agreement in place between the Merchant and the customer for the provision of goods or services. Example: The customer has an insurance policy with the Merchant.
• Service does not include verification if submitting transactions via File Transmission. Verification included with guarantee services or when otherwise selected on merchant agreement.
• Some banks will not honor an ACH transaction from a ‘corporate account’.
• Provided that processor continues to receive transactions from Merchant, funds will be released in: 2-7 business days.

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Checks-By-Phone

Checks-by-Phone service is not applicable for telemarketing businesses (or the like) in which the primary function of the business is outbound sales calls. Unacceptable businesses for this program include cold-calling, “boiler rooms”, mail order marketing, credit repair and/or credit establishment opportunities, vacation and/or benefit packages, investment opportunity operations in which there is no pre-existing relationship between the merchant and the customer and whereby merchant is engaging primarily in outbound call and/or outbound mail activity to initiate a check by phone transaction. If merchant violates this agreement by participating in such business practices, processor shall immediately hold all merchant’s funds, cancel this agreement, debit merchant’s account for all returns, and take other legal action as deemed necessary by processor’s legal counsel, the federal trade commission, the United States Postmaster General, and/or NACHA (National Automated Clearing House).

Merchant Acceptance

This Agreement includes all of the terms and conditions contained on https://www.achq.com/terms. This Agreement has been executed on behalf of and by the authorized management of each party as of the date below. Merchant authorizes ACHQ or any credit reporting agency by ACHQ or agent of ACHQ, to make whatever inquiries that ACHQ deems appropriate to investigate, verify or research references, statements or data obtained from Merchant for the purpose of this application for accompanying POS terminal(s) or equipment financing.

Personal Guarantee: To induce and in consideration of ACHQ acceptance of the ACH Debit Service agreement, the undersigned (herein referred to as “Guarantor”) unconditionally, personally, individually, jointly and severally guarantees performance of the Merchant’s obligations under this Agreement and payment of all sums due thereunder and hereby continues to personally indemnify ACHQ for any and all funds due from Merchants under the terms of this Agreement. Personal Guarantee is NOT required or enforced for Non-Profit organizations.

ACH Debit/Credit Authorization: Merchant hereby authorizes ACHQ in accordance with this ACH Debit Agreement to initiate debit/credit entries to Merchant’s checking account. The authority is to remain in full force and effect until (a) One hundred and twenty (120) days after ACHQ has received written notification from MERCHANT of its termination in such a manner as to afford ACHQ reasonable opportunity to act on it, and (b) all obligations of Merchant to BANK/ACHQ that have arisen under this agreement have been paid in full.

All information contained on this application was completed by owners and/or officers of merchant and they warrant that all check information and sales volume indicated throughout this application are accurate and acknowledge that any variance to this information could result in delayed and/or withheld settlement of funds as well as the loss of all guarantee privileges of all checks. No blank spaces were left incomplete. N/A or None has been filled in any spaces where applicable. This agreement shall not be binding or take effect until merchant has been approved by an ACHQ officer and a merchant number has been issued with transaction limits and thresholds.

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