version 2.1 - effective 20 September 2016
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).
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, as indicated per the attached copy of a voided check from same. 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 a ACHQ officer and a merchant number has been issued with check limit and guarantee limit.
version EFT3.0 - effective 15 November 2016
THIS AGREEMENT (“Agreement”) is made by and between ACHQ, Inc., doing business as ACHQ.com, a Florida Corporation with offices at 1611 12th St. East, Palmetto, Florida 34221 (“ACHQ”) and the undersigned merchant identified in the attached ACHQ application for services (the “Merchant”).
WHEREAS, Merchant desires ACHQ to provide Automated Clearing House services (“ACH”) and other services in accordance with the terms of this Agreement and the operating rules and regulations of the National Automated Clearing House Association (“NACHA”), as amended from time to time (the “Rules”); and
WHEREAS, ACHQ agrees to provide Merchant ACH services and other services in accordance with the terms of this Agreement and the Rules;
NOW THEREFORE, in consideration of the mutual covenants herein and intending to be legally bound, the parties agree as follows:
ACHQ via its authorized agent, EFT Network, Inc. ("Processor") hereby agrees to provide Merchant, ACH services as a Third Party Payment Processor/Sender of ACH transactions and /or Check 21 transactions. ACHQ via Processor will send the ACH and/or Check21 transactions through Processor's bank (the "Bank") with whom ACHQ and Processor have a relationship, which Bank by NACHA Rules and definitions will be acting as the Originating Depository Financial Institution ("ODFI"). ACHQ via Processor will debit money ("Debit Entry") on behalf of Merchant for the purpose of collecting payments from the accounts of Merchant's customers and/or credit money ("Credit Entry") for the purpose of paying Merchant's accounts payable in accordance with the terms of this Agreement, the Rules and the applicable Federal regulations ("Regulations"), governing ACH and/or Check21 transactions. "Entry" or "Entries" shall mean either a Credit Entry or a Debit Entry. Unless otherwise defined herein, capitalized terms shall have the meanings provided in the Rules.
2. Merchant Responsibilities.
2.1 Authorization and Record Retention. Prior to debiting and/or crediting Merchant's customers’ accounts, Merchant will obtain authorization from its customers, in accordance with protocols set forth in the Rules for SEC Codes. Merchant will maintain records of the authorization as necessary to resolve disputes. The authorization must be maintained by Merchant for the minimum period required by the Rules, but in no event less than two (2) years after the termination of the authorization. ACHQ reserves the right to audit all accounts, at Merchant's expense. Without proper authorization, Merchant's funds can be frozen indefinitely. The provisions of this Section 2.1 shall survive the termination of this Agreement.
2.2 Entries. Merchants may create and transmit an electronic file containing Entries in a format acceptable to ACHQ or may manually submit Entries via ACHQ's website. Merchant will not allow any other person, entity or agent to transmit Entries, on its behalf without ACHQ's prior written authorization, and Merchant shall be liable for the acts and omissions of such person, entity or agent. Merchant may electronically transmit its files to the ACHQ Host Processing System, on a twenty-four (24) hour daily basis. All Entries received by ACHQ on a business day, prior to ACHQ's cutoff hour, as determined by ACHQ, shall be deemed received on such business day. Entries received after the cutoff hour, or on a non-business day may be deemed received as of the next business day. For the purposes of this Agreement, a” business day” shall mean any day other than a Saturday or Sunday or legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York. Merchant shall cease initiating Entries immediately upon its receiving actual or constructive notice of the termination or revocation of authority.
2.3 Restrictions/Transaction Limitations. Merchant will not transmit Entries that exceed any monetary, regulatory or volume transaction limits established by ACHQ from time to time. ACHQ reserves the right to approve each type of Entry submitted by Merchant. Approval for one type of entry such as international, accounts receivable, represented check, telephone-initiated, Internet-initiated, or point-of-purchase transactions, shall not be considered approval for all such entries, unless specifically approved in writing by ACHQ. During the term of this Agreement, Merchant will not conduct business as an ACH processer or advertise itself as offering ACH services.
2.4 Rejection of Entries. ACHQ may in it sole discretion reject any Entry, file or instruction that: (a) does not comply with the requirements of this Agreement; (b) ACHQ cannot confirm is authorized, to its satisfaction; (c) is untimely or ambiguous; (d) is not covered by sufficient collected and available funds; (e) would cause ACHQ to violate any Rule, law or regulation, or creates a regulatory, reputational or operational risk to ACHQ; or (f) is prohibited by the ODFI. ACHQ will notify Merchant of any Entry that is rejected. ACHQ may provide such notice electronically on the same business day or on the business day following the business day that the Entry is returned. ACHQ shall have no liability to Merchant by reason of the rejection of an Entry pursuant to this Section 2.4, or if notice of rejection is not given on the date provided for herein. ACHQ has no obligation to retransmit a rejected Entry.
2.5 Varying Preauthorized Entries. If the amount of a consumer's preauthorized Debit Entry, varies from the previous Entry relating to the same authorization, Merchant shall, at least 10 days before the effective date of the Entry, send the consumer written notice of the amount of such Entry and its effective entry date, unless: (a) Merchant has previously notified the consumer of his or her right to receive such notice and the consumer has elected to receive such notice only when the Debit Entry falls within a specified range of amounts or varies from the most recent Debit Entry by an agreed amount, and (b) the amount of the Entry is within the agreed upon range or amount.
2.6 Credit Entry Prefunding/Debit Entry Hold. Merchant shall prefund each Credit Entry prior to the settlement date of the Entry in accordance with the timing requirement designated by ACHQ. ACHQ will place a temporary hold on funds to be credited to Merchant's settlement account for Debit Entries for the period designated by ACHQ.
2.7 Customer Information. Upon receipt of any negative information about a customer, Merchant shall: (i) inform ACHQ immediately of the identity of the customer and the negative information; and (ii) stop processing any additional business from the customer until ACHQ can make a determination on the suitability of the customer for the ACHQ processing system.
2.8 Merchant Information. Merchant shall advise ACHQ of any and all changes in customers' address, email, contact person, phone or fax number and any other customer information.
2.9 ACH Rules. Merchant shall comply with the Rules of the NACHA, as amended from time to time. Merchant can obtain a copy of the Rules by contacting NACHA at 13450 Sunrise Valley Drive, Suite 100, Herndon, VA 20171 by, calling 703-561-1100, or visiting www.nacha.org. Merchant shall not take any action or fail to take an action, that would cause ACHQ to violate the Rules. In the event that the Rules and the terms of this Agreement shall conflict, the Rules shall control. Merchant bears the final responsibility to ensure that Merchant's policies and procedures meet the requirements of the Rules. ACHQ is very concerned that there are no problems with compliance with the Rules. Merchant is encouraged to consult with legal counsel of its own choosing regarding compliance with authorization and payment procedures. In the event a violation of any applicable Rules by Merchant results in a fine imposed upon ACHQ, ACHQ may charge the fine to Merchant and Merchant agrees to pay such fine.
2.10 Identifying Numbers. Merchant understands that ACHQ may rely solely on identifying numbers provided by Merchant to determine the bank and account of its customers, even if the numbers identify a bank or account holder different from the one Merchant identified by name. Merchant will indemnify ACHQ for any losses, liabilities, costs or expenses ACHQ suffers or incurs as a result of an incorrect account or other identification.
2.11 Discrepancies. Merchant agrees to regularly and promptly review all Entries and other communication sent to Merchant and to immediately notify ACHQ if it discovers any discrepancy between its records and those provided by ACHQ, the ODFI or Merchant's bank, or with respect to any transfer that Merchant believes was not authorized. If Merchant fails to notify ACHQ within fourteen (14) calendar days after the date that ACHQ mails or provides a statement of account or other report of activity, Merchant will be responsible for all losses or other costs.
3. Equipment and Software.
Merchant is responsible for obtaining and maintaining any equipment that is necessary for the Service, such as telephones, terminals, modems and computers. Merchant agrees to use equipment that is compatible with ACHQ's programs, systems and equipment, which ACHQ may change from time to time. ACHQ assumes no responsibility for the defects or incompatibility of any computers or software that Merchant uses in connection with the Service, even if ACHQ has previously approved their use. Merchant must maintain an operating customer service line, with a voice message option during non business hours.
Subject to the terms and conditions of this Agreement, including the payment of any applicable fees, ACHQ grants Merchant a personal, limited, non- exclusive, non-transferable license, during the term of this Agreement, to access and use ACHQ's software (the “Software”), in connection with this
Agreement solely on computers owned or controlled by Merchant, and only for the purpose of using the Service. In addition to the Software provided herein, the term Software includes any other programs, tools, components and any updates (for example, documentation, help content, bug fixes, or other information and releases) of the Software that ACHQ provides or makes available to Merchant
Except as expressly allowed herein or by applicable law, Merchant is not licensed or permitted under this Agreement to do any of the following and must not allow any third party to do any of the following: (i) access or attempt to access any other ACHQ systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, license, sublicense, modify or create derivative works based on the Software in whole or in part, resell or distribute in any way the Software; (iii) permit any third party to benefit from the use or functionality of the Software by means of a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any of the rights granted to Merchant under this Agreement; (v) work around any technical limitations in the Software, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the Software except as otherwise permitted by applicable law; or (vi) perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the Software by ACHQ other licensees or customers, or impose an unreasonable or disproportionately large load on ACHQ's infrastructure.
THE SOFTWARE IS PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACHQ ITS AFFILIATES, LICENSORS AND SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INTERFERENCE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND SIMILAR LAWS OF ANY JURISDICTION. ACHQ AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SOFTWARE WILL MEET MERCHANT'S REQUIREMENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
ACHQ and/or its suppliers retain all rights, title and interest in and to the intellectual property rights associated with the Service and the Software. Merchant's license to use Software will end with the termination of this Agreement or upon ACHQ's earlier notice to Merchant. Merchant may not use or move the Software outside the United States without ACHQ's written consent.
4. Merchant's Representations and Warranties.
Merchant hereby represents and warrants the following: (a) Merchant and/or its individual officers, or individuals using its processing relationship with ACHQ, or its processing center are not and have not been in the past, part of any investigation or action, by the Federal Trade Commission, FBI, or U.S. Postal Authority or any other governmental authority whether inside or outside the jurisdiction of the United States; (b) with respect to all Entries, ACHQ originates for you, that: (i) each customer has authorized the debiting/and or crediting of their account: (ii) each Entry is for an amount agreed by the customer; and (iii) each Entry is in accordance with the Rules and all other respects properly authorized; (c) Merchant will perform its obligations under this Agreement, in accordance with all applicable Federal and State laws, regulations and orders, including but not limited to the Electronic Funds Transfer Act; and (d) Merchant will be bound by and comply with the Rules as in effect from time to time.
5. ACHQ Responsibilities.
5.1 Accepting Transactions.
(A) ACHQ will accept on line Entries in the ACHQ format via electronic transmission on a twenty four (24) hour basis. ACHQ is not responsible for detecting or rejecting duplicate Entries. If Merchant sends an Entry which is incorrect in any way, Merchant assumes sole responsibility for the Entry, whether or not the error could be detected by ACHQ.
(B) Merchant does not have the right to cancel or amend an Entry after submission to ACHQ or the ACH Network. Signature of Primary Officer: Date:
5.2 Originating Transactions. ACHQ will use the information provided by Merchant to originate Merchant's Entries to the ACH Network, or ODFI . Merchant understands that ACHQ may reject Merchant's Entries for any reason permitted or required in the Rules or Regulations, or which do not comply with the requirements of this Agreement. Merchant also understands that its Entry may be rejected by ACHQ or its origination may be delayed, if the Entry would cause ACHQ to violate any Federal Reserve, or other regulatory risk control program, or any other law or regulation. At Merchant's request, ACHQ will make reasonable efforts to reverse or delete an Entry, but will have no responsibility for the failure of ACHQ or any other person or entity to comply with Merchant's request. All requests MUST be made in writing and faxed, delivered or mailed to ACHQ.
5.3 Returned Entries and Notices of Change (NOC). ACHQ will apply returned Entries to Merchant's account when they are received. A Return Items report will be delivered to Merchant by ACHQ the day there is activity to report. ACHQ is responsible for correcting all Notices of Change (“NOC”) received. ACHQ will then create and make available to Merchant a report containing the detailed information about the return Entries. Merchant agrees that it will not initiate Entries until such time as the NOC information has been received and records have been updated to include the NOC information. ACHQ shall have no obligation to retransmit an Entry if the original transmission was not in compliance with this Agreement. If Merchant requests that the returned item be retransmitted, ACHQ may do so in accordance with the Rules. Merchant agrees to pay any cost associated with retransmission.
5.4 Method of Transfer. ACHQ will transfer all funds to a custodial account at our ODFI. ACHQ will hold the funds until all preliminary returns have cleared. The funds then will be transferred to the Financial Institution and Account of Merchant's choice.
The standard hold period is four (4) banking days which may be extended. ACHQ can reduce the holding time upon written guarantee of the funds by Merchant's Financial Institution. ACHQ reserves the right to place a longer hold period on the funds should questionable activity occur, or in the event that the Merchant's return rate increases significantly enough to warrant a longer hold period, or as required by law.
5.5 Settlement and Finality. After the hold period for Debit Entries has expired and upon ACHQ confirmation that it has received available funds, ACHQ will credit Merchant's Account for an amount equal to the net settlement less returns. If any Debit Entry is returned to ACHQ (in a timely manner as described in the Rules), ACHQ will debit the Merchant's Account for the amount of the returned item plus fees and costs incurred by ACHQ. In the event there are not sufficient funds in Merchant's Account to cover its obligations under this Agreement, Merchant agrees to pay ACHQ the amount of the deficiency on demand in immediately available funds. ACHQ may debit any account maintained by Merchant without further notice to or approval from Merchant. Any Credit Entries that Merchant creates will be debited from Merchant's Account in accordance with the hold period prior to the credit being distributed to the Merchant payee's accounts. In the event that the Credit Offset is returned for any reason, the Credit Entries will be cancelled due to the unavailability of funds.
This Agreement shall become effective upon the date the Merchant is assigned or issued a Merchant Account Number (the “Effective Date”) by ACHQ. ACHQ will advise Merchant in writing of such Merchant Account Number. The initial term (“Initial Term”) shall commence on the Effective Date and shall continue in full force and effect for twelve (12) months and shall thereafter automatically renew for an additional twelve (12) months, unless terminated by either party, by written notice to the other given at least sixty (60) days prior to the expiration of the then current term, or unless earlier terminated pursuant to Section 7 of this Agreement.
ACHQ shall at any time, have the right to terminate this Agreement, place a hold on funds and/or suspend Services. Merchant shall have the right to terminate this Agreement, at any time upon sixty (60) days prior written notice to ACHQ. In the event that the Merchant terminates this Agreement within ninety (90) days of the Effective Date, an early termination fee in the amount set forth in the accompanying fee sheet will be assessed against Merchant. Termination of this Agreement, shall not affect any of the rights or obligations of the parties that arose prior to termination or any other obligations that survive termination of this Agreement.
8. Pricing and Payments.
Merchant agrees to pay ACHQ the fees established from time to time by Merchant (see accompanying fee sheet). All fees and services are subject to change at any time, effective thirty (30) days from the date of the notice of change provided by ACHQ. Merchant shall be responsible for the payment of any sales, use, excise, value added, utility or other similar taxes (excluding any income tax payable by ACHQ) relating to the Service. Merchant agrees that ACHQ may obtain payment for these fees and any other amounts due under this Agreement by debiting Merchant's Account. ACHQ shall have, and Merchant acknowledges that ACHQ has, the right to set off against any amount payable by ACHQ to Merchant under any provision of this Agreement, any amounts owed ACHQ by Merchant, or any damages sustained by ACHQ as a result of Merchant's violation, breach or non-performance of its obligations under this Agreement.
9. Security Deposit/Reserves.
ACHQ may require that Merchant establish and maintain a security deposit or reserve with ACHQ to cover Merchant's obligations under this Agreement. Security Deposits or reserves maintained under this Agreement will not bear interest. Merchant shall remit (and hereby authorizes ACHQ to debit its designated account for) the amount that ACHQ requires for a reserve or security deposit within five days from ACHQ's request.
If ACHQ determines that Merchant's reserves are not sufficient to cover ACHQ's risk for potential claims, ACHQ may increase the amount of the required reserves by providing notice to Merchant. If Merchant fails or refuses to remit sufficient reserves promptly upon ACHQ's request, ACHQ may transfer funds to the reserve from the proceeds of Merchant's transactions. Merchant's obligation to ACHQ under this Agreement will not be limited by the balance or existence of any reserve.
The security deposit or reserve will be held by ACHQ until: (i) ninety (90) days beyond the date of the last item processed by ACHQ on Merchant's behalf; or (ii) thirty (30) days after the last chargeback activity, whichever time period is later. These funds will be used by ACHQ to offset any returned items or charge-backs that occur after the termination of this Agreement. This provision shall survive the termination of this Agreement.
10. Limits of Liability.
ACHQ will be responsible for the performance of its ACH services as a Third Party Processor in accordance with the terms of this Agreement, and the Rules and Regulations and shall only be liable for its gross negligence or willful misconduct in performing those services. ACHQ shall not be responsible for errors, acts, omissions or failures to act of Merchant or its agents, NACHA or others, including, other entities, banks, communications carriers or clearing houses through which Entries may be originated or from which ACHQ receives or transmits information, and no such entity shall be deemed ACHQ's agent. ACHQ shall not be responsible for any loss, cost, liability or delay which arises, directly or indirectly in whole or in part from Merchant's actions or omission, negligence or breach of any agreement, any ambiguity, inaccuracy or omission in any instruction or information provided to ACHQ, or caused by accident, fires, floods, computer virus, earthquakes, wars, civil disturbances, power surges or failures, acts of government or God, labor disputes, failures in communication networks, legal constraints or other events beyond ACHQ's control.
In no event shall ACHQ be liable or responsible under any circumstances for special, punitive, incidental, indirect, or consequential damages which Merchant may incur as a result of ACHQ's actions or omissions, even if ACHQ is aware of the possibility for such damages. ACHQ`s liability and Merchant's remedy for actual costs and losses resulting from ACHQ`s actions and/or omissions during any twelve (12) month period, whether the claim is in contract or tort, will not exceed three times the average monthly charge for the Service. Any claim, action or proceeding by Merchant to enforce the terms of this Agreement or to recover for any Service-related loss must be commenced within one (1) year from the date that the event giving rise to the claim, action or proceeding first occurs. Merchant agrees to cooperate with ACHQ in any loss recovery efforts ACHQ might undertake to reduce any loss or liability that arises in connection with the Services.
Merchant acknowledges that ACHQ`s Service fees have been established in contemplation of: these limitations on ACHQ `s liability; Merchant's agreement to review statements, confirmations, and notices promptly and to notify ACHQ immediately of any discrepancies or problems; and Merchant's agreement to assist ACHQ in any loss recovery effort.
Merchant hereby indemnifies and agrees to protect, defend and hold harmless ACHQ, its affiliates and subsidiaries its officers, agents, employees and counsel and the Bank, its officers, officials, agents, employees and counsel, and their respective heirs, administrators, executors, successors and assigns (each of the foregoing a “Indemnified Party”), from and against, any and all losses, liabilities, claims, damages, interest, judgments, costs, or expenses, including without limitation fees and disbursements of counsel (collectively “Losses”) incurred by any of them arising out of or in connection with or by reason of: (i) this Agreement; (ii) the actions and omission of the Merchants and its agents; (iii) the ACH/Drafts; (iv) the provision of Services hereunder; (v) breach of Merchant's agreements, representations, warranties or covenants set forth herein; and (vi) third party-disputes involving any goods or services related to an Entry, provided however, Merchant shall not be required to indemnify any Indemnified Party for any Losses to the extent such Loss is finally determined by a court of competent jurisdiction to have arisen solely out of the gross negligence or willful misconduct of such party. All obligations provided in this Section 11 shall survive any termination of this Agreement, the Services and the closing of the Merchant Account and any Reserve account.
Neither party will disclose to anyone, directly or indirectly, either during the term of this Agreement or any time thereafter, any trade secrets, or confidential information of the other party, or use such information other than in the course of Services provided under this Agreement. All documents that ACHQ prepares, or any confidential information that might be given to Merchant during the course of ACHQ's Services under this Agreement, are the exclusive property of ACHQ.
13. Termination or Suspension of Service.
Merchant understands and agrees that ACHQ may terminate or suspend the Service immediately without prior notice at any time and from time to time. Suspension or termination of Service shall not affect Merchants obligations hereunder or under this Agreement or any agreement with the Bank, and ACHQ shall have no liability on account of such termination or suspension.
14. Other Terms and Conditions.
14.1 Notices. Unless other agreed, notices required by this Agreement must be in writing. All notices required or permitted to be given shall be deemed sufficient if sent by fax, email, or U.S. mail and received at the addresses set forth herein or in the Application.
14.2 Investigative Report. An investigative or Consumer Report may be made in connection with Merchant's application. Applicants authorize ACHQ or any credit bureau or any credit reporting agency employed by ACHQ or any agents of ACHQ to investigate the references given or any other statements or data obtained by Merchant or any of the principals, for the purpose of Merchant's application.
14.3 Damage Waiver. ACHQ will not be liable for any special, consequential, indirect or punitive damages, whether or not: (i) any claim for these damages is based on tort or contract; or (ii) ACHQ knew or should have known the likelihood of these damages in any situation. ACHQ makes no representations or warranties other than those expressly made in this Agreement.
14.4 Change in Merchant's Business. Merchant shall provide ACHQ with at least thirty (30) days' advance notice of: (a) any material (20% or greater) change in its ownership; (b) any substantial change in the type, scope or nature of its business; or (c) any anticipated material (20% or more) increase in the number or amount of its Entries over the preceding calendar quarter.
14.5 Modification and Amendment. ACHQ may modify, the terms and conditions of this Agreement and/or the Service at any time, by providing Merchant with at least thirty (30) days prior notice. ACHQ may amend the Agreement or the Service without prior notice if: (i) immediate changes are required for security reasons; (ii) the change is mandated by the Rules, the ODFI, or a change in the law; or (iii) the change does not have a material effect on Merchant's use of the Service. Merchant's use of the Services after Merchant receives notice of the modification, will evidence Merchant's acceptance of the modifications.
14.6 Audit. ACHQ and/or the ODFI may audit Merchant's compliance with this Agreement and the Rules. Merchant will give ACHQ access to its premises and records and shall provide ACHQ and ODFI with all information that ACHQ or ODFI reasonably requests in connection with its audit. The ODFI may cause Services to Merchant to be terminated or suspended for a breach of the Rules in a manner that permits the ODFI to comply with the Rules.
14.7 Governing Law. This Agreement is governed by, and shall be construed under, the law of the State of Florida, without regard for the principles and conflicts of law. All transactions covered by this Agreement are governed by the Rules, Regulations, the Electronic Funds Transfer Act and other applicable laws and regulations.
14.8 Arbitration. Any dispute between us shall be submitted to binding arbitration in Wilmington, Delaware, to be conducted pursuant to the Rules of the American Arbitration Association. Any award may include an award for reasonable attorney's fees and costs. The arbitrators award may be entered in any court having jurisdiction of the parties.
14.9 Entire Agreement. This Agreement (including any Applications or Schedules attached hereto) and any amendments or modifications thereto, makes up the entire Agreement between Merchant and ACHQ, with respect to the subject matter hereof and supersedes any prior negotiations, or agreement (s) whether oral or written, between ACHQ and Merchant with respect to such subject matter. If any provisions of this Agreement are deemed unenforceable, the remaining provision will still be enforceable.
14.10 Authorization. The Officer signing below certifies that he/she is authorized and empowered to execute this Merchant Agreement on behalf of Merchant and to bind Merchant to the terms and conditions stated herein. MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED AND A MERCHANT NUMBER IS ISSUED.
14.11 Assignment. Merchant may not assign this Agreement or any rights or duties hereunder, without the prior written consent of ACHQ. ACHQ may assign its rights and delegate its duties under this Agreement to any third party. Subject to the foregoing, this Agreement will, apply to be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties.
14.12 Headings. Headings are used for reference purposes only and shall not be deemed part of this Agreement.
As a primary inducement to Processor and Bank to enter into this Agreement, the undersigned Guarantor(s), by signing this Agreement, jointly and severally, unconditionally and irrevocably, personally guarantee the continuing full and faithful performance and payment by Merchant of each of its duties and obligations to Processor and Bank under this Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals and Processor or Bank, as such agreements now exist or are amended from time to time, with or without notice. Guarantor(s) understand further that Processor or Bank may proceed directly against Guarantor(s) without first exhausting their remedies against any other person or entity responsible to it or any security held by Processor and Bank or Merchant. This guarantee will not be discharged or affected by the death of the undersigned, will bind all heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any successor of Processor and Bank. Guarantor(s) understand that the inducement to Processor and Bank to enter into this agreement is consideration for the guaranty, and that this guaranty remains in full force and effect even if the Guarantor(s) receive no additional benefit from the guaranty.
Guarantor(s) waive any defense arising by reason of any act or omission of the Merchant and/or the Guarantor(s) in any legal action by ACHQ to recover an indebtedness. Guarantor(s) shall have no right of subrogation, and waive any right to enforce any remedy, which ACHQ now has or may hereafter have against individuals, and waive any benefit of, and any right to participate in any security now or hereafter held by ACHQ. Guarantor(s) waive all presentments, demand for performance, notices of non-performance, protests, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation, or incurring of new or additional indebtedness. In the event ACHQ consults a lawyer or incurs any cost or expenses in connection with enforcing this Guaranty, or otherwise as a result of any transaction(s) arising out of or related to this Guaranty, Guarantors agree to pay all such costs, expenses and reasonable attorneys' fees
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