Payment Services Agreement
This (“Agreement”) governs the agreement between the company (“Merchant”) named on any ACH processing Application (“Application”) to which these Terms and Conditions are attached and ACHQ, Inc., a Florida company with its principal place of business at 1990 Main St Suite 750, Sarasota, FL 34236 (“ACHQ”). Merchant agrees to be bound by the terms of this Agreement as stated herein. Each of the individuals signing this Agreement and the Application represents and warrants that he or she has the full power and authority to bind the party (Merchant) identified above his or her name.
1.1 ACH PROCESSING
ACHQ and Merchant have contracted for ACHQ to provide Automated Clearing House (“ACH”) services as a Third Party Processor of ACH transactions. These transactions will be placed through a financial institution used by ACHQ who will be acting as the Originating Depository Financial Institution (“ODFI”). Merchant shall act as the Originator. ACHQ will debit funds (“Debit Entry”) for the purpose of collecting Automatic Payments from the accounts of the Merchant’s customers (“Receivers”) and/or credit funds (“Credit Entry”) for the purpose of paying the Merchant’s accounts receivable in accordance with the terms of this Agreement, the Operating Rules (“Rules”) of the National Automated Clearing House Association (“NACHA”), and applicable federal, state and local laws or regulations governing ACH transactions (collectively, “Regulations”). The terms and conditions of this Agreement do not limit Merchant’s obligation to comply with the Rules and Regulations. “Entry” or “Entries” shall mean either an ACH Credit Entry or an ACH Debit Entry.
1.2 ACCOUNT AND AUTHORIZATION
Merchant shall, at all times, maintain an account at a bank that is a member of the Federal Reserve ACH System (“Account”). Merchant expressly authorizes ACHQ to debit and/or credit the Account designated by Merchant according to the terms of this Agreement. Merchant further authorizes ACHQ to process electronic funds transfers as a Third Party Processor through the Account designated by Merchant. Merchant represents and warrants that it shall, at all times, maintain a sufficient balance in the Account to cover all obligations owed to ACHQ, including, but not limited to, all Entries originated by Merchant, returned Entries, chargebacks, fees, fines, and all other obligations owed to ACHQ and Merchant authorizes ACHQ to debit its Account for all amounts owed to ACHQ. 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 ACH returns of any kind, whether for customer chargebacks or unauthorized returns, insufficient funds, administrative or corporate returns, or any other type of returns. Merchant acknowledges and expressly agrees that this authorization applies with the same force and effect to any new bank account information for Merchant that ACHQ obtains at a future date, regardless of the timing, reason or manner in which ACHQ obtains information about other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation), and Merchant expressly agrees that ACHQ may debit any such account held by, or on behalf of Merchant, in order to satisfy any of Merchant’s obligations to ACHQ. Merchant shall provide new Account information to ACHQ, in writing, at least 10 days prior to closing or changing the Account designated in this Agreement. This authorization shall survive the termination of this Agreement and shall continue in perpetuity until all of Merchant’s obligations to ACHQ are paid in full, including, but not limited to, those obligations described in this Agreement.
Either party may cancel this Agreement with 60 days’ written notice to the other party, subject to the terms and limitations set forth in the TERM AND TERMINATION paragraph of this Agreement. ACHQ may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’S ODFI or any regulatory agency, regardless of the reason for the request; (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Rules or Regulations and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’S control or ACHQ no longer has the ability to process transactions for Merchant.
1.4 CONSUMER CREDIT INQUIRIES
A credit report may be made in connection with this Application and Agreement. Merchant and the individuals signing this Agreement on behalf of the Merchant, including any Guarantors, authorize ACHQ, or any credit bureau or any credit reporting agency employed by ACHQ or any agents of ACHQ to investigate the references provided or any other statements or data obtained from the Merchant, or any of the above principals, for the purpose of this Application and Agreement. Merchant also authorizes ACHQ to obtain additional credit reports regarding Merchant on an annual basis, unless ACHQ, in its sole and absolute discretion, determines that it is necessary for ACHQ to periodically obtain Merchant’s credit report on a more than annual basis, in which case Merchant authorizes ACHQ to obtain such additional credit reports. Notwithstanding anything in this paragraph, Merchant authorizes ACHQ to obtain a credit report regarding Merchant if Merchant requests increased processing amounts or parameters, or if Merchant originates sporadic transactional volume.
2.0 MERCHANT RESPONSIBILITIES
Merchant agrees to obtain authorization from Receivers pursuant to the requirements of the Rules and applicable Regulations prior to debiting and/or crediting Receivers’ accounts. Merchant will maintain copies of the authorizations for a period of 2 years from the termination or revocation of the authorization.
Merchant agrees that ACHQ may adjust processing fees and/or add authentication services without prior notice if Merchant experiences a return rate outside the NACHA return thresholds, as determined by ACHQ in its sole and absolute discretion, or if ACHQ deems the authentication process Merchant subscribes to is not adequate for standards determined by ACHQ. ACHQ at its sole and absolute discretion will determine the standards of authentication and the rate of return acceptable for Merchant. Nothing herein limits the Merchant’s obligation to comply with the Rules and all applicable Regulations.
2.3 REPRESENTATIONS REGARDING AUTHORIZATION
Merchant represents and warrants with respect to all Entries originated by Merchant and processed by ACHQ for Merchant that (1) each Receiver has authorized the debiting and or crediting of its account, (2) each Entry is for an amount agreed to by the Receiver, and (3) each Entry is in all other respects properly authorized. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or unauthorized Entries. These representations and warranties by Merchant shall survive termination of the Agreement. Merchant acknowledges and agrees that, from time to time, another person or entity may submit or modify transactions on behalf of the Merchant, including, without limitation, owners, principals, employees, officers, accountants or other designated third parties. Such a person or entity is referred to herein as a “Merchant Administrator.” Merchant expressly agrees that ACHQ is also considered Merchant Administrator. Merchant agrees that all actions of a Merchant Administrator will be deemed to be actions by Merchant under this Agreement, and Merchant accepts full responsibility and liability for any and all acts and/or omissions of a Merchant Administrator, including, but not limited to, acts of negligence (whether active, passive, or gross negligence) and intentional or fraudulent acts.
2.4 IDENTIFYING NUMBERS
Merchant understands and agrees that ACHQ may rely solely on identifying numbers provided by Merchant to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by Merchant. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) as a result of an incorrect account or other identification.
2.5 INTENTIONALLY OMITTED
2.6 REGULATORY COMPLIANCE
Merchant bears the final responsibility to ensure that Merchant’s policies and procedures meet the requirements of the ACH Rules and all applicable Regulations. Merchant is encouraged to consult counsel regarding compliance with the Rules and Regulations whenever there is any doubt about compliance. Merchant represents and warrants that all Entries originated by Merchant and processed by ACHQ for Merchant comply with all applicable Rules and Regulations, including without limitation the following Regulations: 1) FTC Act (15 U.S.C. §§ 41, et seq.); 2) TSR (16 C.F.R. 310, et seq.); 3) Electronic Fund Transfer Act (15 U.S.C. §§ 1601, et seq.) and Regulation E (12 C.F.R 205, et seq.), if applicable; 4) Uniform Commercial Code Article 4-A, if applicable; 5) Federal Reserve Board Regulation J, if applicable; 6) the rules and sanctions laws of the Office of Foreign Assets and Control (“OFAC”); 7) Unlawful Internet Gambling Enforcement Act (31 U.S.C. §§ 5361, et seq.) and accompanying regulations (12 C.F.R. 233; 31 C.F.R. 132); 8) PACT Act (15 U.S.C. §§ 376, et seq., Jenkins Act (15 U.S.C. §§ 375, et seq. and accompanying regulations; and 9) all applicable state laws and regulations. Merchant further represents and warrants that it shall not originate any Entries that constitute (i) improper telemarketing in violation of the TSR or other applicable Regulations or Rules; (ii) sales or marketing of advance-fee credit cards in violation of the TSR or other applicable Regulations or Rules; (iii) restricted Internet gambling transactions; and/or (iv) unlawful Internet tobacco sales. Merchant represents and warrants that it will not transmit any Entries that violate the laws of the United States or any state or locality in which ACHQ or Merchant does business. These representations and warranties by Merchant shall survive termination of this Agreement. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless ACHQ for any claims, losses, liabilities, costs, fines, or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or failure to comply with any applicable Rules or Regulations. In addition to its cancellation rights described elsewhere in this Agreement, ACHQ may immediately cancel this Agreement if ACHQ, its ODFI or any regulatory agency believes that Merchant is violating or has previously violated any applicable Regulation or Rule or is in breach of these representations and warranties.
2.7 TAX NAME AND ID
Merchant shall provide to ACHQ its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service (“IRS”). In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant bears all liability and agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from any and all claims, liabilities, losses, damages, fines, costs or other expenses (including attorneys’ fees and costs) suffered or incurred arising out of, relating to or involving in any way Merchant’s failure to provide an accurate tax filing name or tax identification number.
2.8 TAX REPORTING OBLIGATIONS
Merchant acknowledges that, pursuant to Section 6050W of the Internal Revenue Code, ACHQ is responsible for filing with the IRS annual information returns for all reportable payment transactions to Merchant for whom ACHQ processes transactions under this Agreement. Merchant shall cooperate with ACHQ and take all reasonable steps to aid its reporting obligations and compliance with Section 6050W, including, but not limited to, provide an accurate and verifiable tax filing name and tax identification number (“TIN”) for each Merchant account. Merchant further acknowledges and agrees that, if it fails to provide an accurate tax filing name or TIN information, the IRS notifies ACHQ of a discrepancy between the information provided by Merchant and the IRS records, or if requested by the IRS for any reason, ACHQ shall be required to perform backup withholding from Merchant funding by deducting and withholding income tax in an amount based on the IRS withholding regulations at the time withholding is required from the gross amount of each reportable transaction pursuant to Section 6050W and its corresponding regulations. Merchant expressly authorizes ACHQ to withhold from Merchant’s funding or debit Merchant’s Account (or another account designated by Merchant if there are insufficient funds in the Account to cover the required withholding) for any and all backup withholding amounts required by Section 6050W and its corresponding regulations.
2.9 RECORDKEEPING REQUIREMENTS
Merchant shall keep all records of verifiable customer payment authorizations for a period of two (2) years from the date an authorization is terminated or revoked. Merchant agrees to provide copies of such documents or records to ACHQ immediately upon written request from ACHQ.
2.10 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER
Merchant agrees to promptly and regularly review all Entries and other communication received from ACHQ and to immediately notify ACHQ if there are any discrepancies between Merchant’s records and those provided by ACHQ, the ODFI or Merchant’s bank, or with respect to any transfer not authorized by Merchant. If Merchant fails to notify ACHQ within 7 days of the date ACHQ e-mails, mails, or otherwise provides a statement of account or other report of activity to Merchant, then Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.
In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify and hold harmless ACHQ and its ODFI, including all of their directors, officers, employees and affiliates, from and against any and all claims, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of the representations and warranties made by Merchant in this Agreement, the failure of Merchant or a Merchant Administrator to comply with the terms of the Agreement, the failure of Merchant or a Merchant Administrator to comply with the Rules, or any and all other applicable laws or Regulations, or by reason of ACHQ providing the services set forth in this Agreement. This paragraph shall survive termination of the Agreement.
3.0 ACHQ RESPONSIBILITIES
3.1 ACCEPTING TRANSACTIONS
ACHQ will only be responsible for processing Entries that have arrived at its premises in proper format and on a timely basis. ACHQ will advise Merchant of any applicable cut-off time. Merchant does not have the right to cancel or amend any entry after submission to the ACH Network.
3.2 ORIGINATING TRANSACTIONS
ACHQ will use the information provided by Merchant to originate Entries to the ACH Network. Merchant acknowledges and agrees that ACHQ may reject Entries for any reason permitted or required by the Rules or applicable Regulations. Merchant also acknowledges and agrees that Entries or files may be rejected which exceed the threshold parameters identified and set for Merchant. Merchant also acknowledges and agrees that an Entry may be rejected if the Entry would cause ACHQ to violate any Federal Reserve or other regulatory risk control program, any other applicable Rule or Regulation, or ACHQ’S agreement with its ODFI. At Merchant’s request, ACHQ will make reasonable efforts to reverse, modify, or delete an Entry, but will have no responsibility for the failure to comply with that request.
3.3 RETURNED ENTRIES AND NOCS
ACHQ will apply returned Entries to Merchant’s Account when they are received. As described elsewhere in this Agreement, if Merchant does not have funds available in its designated Account sufficient to cover all returned Entries, Merchant acknowledges and agrees that ACHQ will debit any other bank account identified by Merchant to ACHQ (regardless of the timing, method or reason Merchant identified such account to ACHQ). ACHQ will create and make available to Merchant a report containing detailed information about returned Entries. If Merchant requests that the returned Entries be provided electronically, ACHQ may do so according to the Rules and Regulations regarding returned Entries. Merchant is solely responsible for all returned Entries.
3.4 SETTLEMENTS AND FINALITY
Merchant’s account will settle in accordance with the funding schedule set for Merchant. The standard settlement cycle date is the second business day from the effective Entry date. If any Entry is returned beyond the settlement date, ACHQ will, at ACHQ’s sole and absolute discretion, either apply the debit to the current day’s settlement, or debit the Merchant’s account for the amount of the returned Entry. If sufficient funds to cover returned Entries are not available in Merchant’s Account, Merchant shall immediately remit payment to ACHQ to fully cover the amount of all returned Entries. As described elsewhere in this Agreement, Merchant agrees that, to fully cover all returned Entries, ACHQ may also debit any other bank account for Merchant about which it has account information, regardless of the timing, reason or manner in which ACHQ obtained information about the other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to ACHQ or bank account(s) for Merchant that ACHQ identifies through its own lawful research or investigation).
3.5 NO WARRANTY
Merchant acknowledges and agrees that neither ACHQ nor its ODFI has control over the conditions under which Merchant uses the payment processing system and does and cannot warrant the results obtained by such use. ACHQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR ACHQ’S SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACHQ DOES NOT WARRANT THAT OPERATION OF THE PAYMENT PROCESSING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. MERCHANT ACKNOWLEDGES THAT THE PAYMENT PROCESSING SYSTEM IS PROVIDED FOR USE BY MERCHANT “AS IS.” MERCHANT FURTHER ACKNOWLEDGES THAT ACHQ BEARS NO RESPONSIBILITY FOR THE MERCHANT WEB SITE(S). MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ACHQ THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO MERCHANT FOR THE AUTHORIZED TRANSACTION. MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.
3.6 LIMITS OF LIABILITY
ACHQ will be responsible for the performance of ACH services as a Third Party Processor in accordance with the terms of this Agreement and the Rules and applicable Regulations. ACHQ will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, banks, communication providers, common carriers, or clearing houses through which Entries may be passed and or originated. ACHQ is not responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, intervening negligent, criminal, or tortious acts of third parties who are not within ACHQ’S control or employ, legal constraints or other events beyond the control of ACHQ. ACHQ shall not be liable to Merchant for any delays in receipt or transmittal of funds or errors in credit or debit entries caused by third parties, including, without limitation, the Automated Clearing House, any depository financial institution, or any agent of Merchant.
4.0 ADDITIONAL TERMS AND CONDITIONS
4.1 FEES AND PAYMENT
Notice of any changes to the existing fee structure as stated in this Agreement (including new or increased fees) will be made in writing to Merchant within 30 days of such changes or any new fees becoming effective. Merchant has the right to cancel the Agreement in writing at that time. Continued use of the services provided by ACHQ after notice of fee changes is provided to Merchant shall constitute Merchant’s agreement to any new or changed fees. In addition to the fees previously agreed upon by Merchant in the “ACHQ Services Proposal,” Merchant shall pay the fees to ACHQ set forth below:
Return Fees: If Merchant returns a transaction initiated by ACHQ and the transaction is in accordance with this Agreement, Merchant will be charged a $35.00 return fee per occurrence. ACHQ, in its sole and absolute discretion, may suspend settlements for Merchant until payment for returned Entries or return fees is fully remedied.
Chargeback and High Return Rate Fees: If, at the time Merchant is billed for chargebacks, Merchant’s High Risk or Unauthorized Return Rate exceeds 0.5% using a NACHA approved method of calculation, a high-risk surcharge of $15.00 will be added to each chargeback received during that billing period and an additional 1.0% discount rate will be added to Merchant’s Account, to be charged retroactively for the previous 30 days.
Attorneys’ Fees: If Merchant becomes obligated to pay ACHQ’s attorneys’ fees pursuant to any provision in of this Agreement, such fees shall include in-house counsel fees at the rate of $400 per hour, as well as the actual hourly rate for outside counsel.
Payment: Merchant agrees that ACHQ may collect any and all amounts due by Merchant, including, without limitation, all fees set forth in the Application and this Agreement, returned Entries, chargebacks, refunds or credits issued to Receivers, fines, damages or costs and expenses incurred by ACHQ to perform services for Merchant (including attorneys’ fees and costs to enforce any of Merchant’s obligations under this Agreement), by billing Merchant, debiting Merchant’s Account, debiting the Reserve Account or debiting any other bank account for Merchant about which ACHQ obtains account information. Merchant shall provide ACHQ the information necessary to collect all amounts owed by Merchant under this Agreement or the Rules or applicable Regulations. Merchant will be responsible for any and all attorneys’ fees and other costs and expenses ACHQ may incur in collecting any fees or other amounts Merchant owes to ACHQ.
4.2 VOLUME ANALYSIS
ACHQ will routinely analyze Merchant origination and return activity. In the event Merchant exceeds a return rate outside the maximum return rates determine by NACHA Rules, ACHQ shall have the right to place all of the provisional or final credit provided to Merchant for each Debit Entry originated by it into an account held by ACHQ for a period of 2 years from the last Debit Entry. In addition to all other Merchant accounts from which ACHQ is authorized under this Agreement to obtain payment of funds owed by Merchant, ACHQ shall have the right to offset and pay itself from the account described in this paragraph for all returned Entries, chargebacks, refunds or credits issued, fees, damages (including liquidated damages), or other costs and expenses (including attorneys’ fees and costs) that may arise out of ACH processing for Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement.
Each party represents, warrants, and mutually agrees that all information concerning the other party which comes into its possession during the term of this Agreement shall be maintained as confidential and shall not be used or divulged to any other party except as necessary to permit the activities contemplated under this Agreement or as required by law. Notwithstanding the foregoing, it shall not be a breach of this Confidentiality provision for ACHQ to disclose Merchant’s confidential information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided Merchant has been given prior notice to the extent not prohibited or requested by the government agency or Court Order and ACHQ has sought all available safeguards against widespread dissemination prior to such disclosure.
4.4 GOVERNING LAW AND VENUE
This Agreement, all questions related to the Agreement’s validity, interpretation, performance, execution and inducement, and all claims related to, arising under, or involving in any way this Agreement, the services by ACHQ, or Merchant’s business relationship with ACHQ, or Merchant’s business relationship with ACHQ are governed by, and shall be construed under, the laws of the State of Florida without regard for the principles and conflicts of law. All such claims shall exclusively be adjudicated in a State or Federal Court located in Sarasota County, FL, which the parties agree has exclusive personal jurisdiction over them and is the proper venue. The parties waive any objections to personal jurisdiction or venue in Sarasota County, FL. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs (including expert witness fees and costs) incurred in the matter.
4.5 JURY TRIAL WAIVER
ACHQ AND MERCHANT BOTH IRREVOCABLY WAIVE A TRIAL BY JURY UNDER BOTH STATE AND FEDERAL LAW IN ANY ACTION, LAWSUIT, OR DISPUTE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, ACHQ’S SERVICES, OR THE TRANSACTIONS RELATING TO SUBJECT MATTER OF THIS AGREEMENT.
4.6 AGREEMENT MODIFICATION
ACHQ may modify the terms and conditions of this Agreement upon sixty (60) days’ written notice. Use of services after any such modification will evidence acceptance of the modification(s).
Each notice required by this Agreement shall be in writing and will be effective when sent unless notice is provided by First Class Mail, return receipt requested, which shall be effective when received. Notice may be provided by:
(1) To Merchant: (a) by First Class Mail, return receipt requested, at the Merchant’s business address listed in this Agreement or on the ACHQ Enrollment Form. (b) by facsimile at Merchant’s fax number currently on file. (c) by electronic mail at the Merchant’s email address currently on file. (d) by posting notice to the Merchant Portal, which shall be effective at the next Merchant login to the Merchant Portal.
4.8 EXCLUSIVE AGREEMENT
4.9 TERM AND TERMINATION
This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by ACHQ at any time with sixty (60) days’ written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give ACHQ sixty (60) days written notice of Merchant’s intent to terminate the Agreement. ACHQ must approve the Merchant’s request for early termination in writing, which approval will not be unreasonably withheld. Notwithstanding ACHQ’S rights to cancel this Agreement as stated elsewhere in this Agreement, ACHQ may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of ACHQ’S ODFI or any regulatory agency (regardless of the reason for the request); (2) if ACHQ, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries; or (3) if ACHQ is unable to process transactions for Merchant for any reason that is out of ACHQ’s control or ACHQ no longer has the ability to process transactions for Merchant. Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, ACHQ’S obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, ACHQ will place all unsettled funds due to be settled into a Reserve Account to be released in accordance with the RESERVE BALANCE paragraph of this Agreement.
4.10 DAMAGE WAIVER
ACHQ will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party 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.
4.11 RESERVE ACCOUNT
For Merchants where Reserve Accounts are required Merchant acknowledges and agrees that its Reserve Account may be commingled with reserve funds held for other merchants. This amount will remain in the Reserve Account for a period of 6 months following the last debit Entry initiated by Merchant. Merchant acknowledges and agrees that this Reserve Account will be used to fund any and all returned items. In addition, ACHQ shall also have the right to offset and pay itself from the Reserve Account for all returned Entries, fees, damages, or other costs and expenses (including attorneys’ fees and costs) that may arise out of ACH processing for the Merchant and for which Merchant has agreed to pay ACHQ pursuant to the terms of this Agreement. For purposes of funding the Reserve Account, ACHQ agrees to accept the reserve in full by wire transfer or deduct an amount agreed upon in writing by both parties as a percent of each debit origination until such time that the entire 100% percent reserve amount is reached. In the event a reserve is held, it is solely the responsibility of Merchant to notify ACHQ of an impending release based on the 6 month calculation.
Merchant acknowledges and agrees that, until such time as all of the amounts owed by Merchant and its obligations, including its obligation to pay all returns, are paid to ACHQ in full, all funds in the Reserve Account shall be considered to be held by ACHQ for ACHQ sole interest, benefit, and protection, shall be considered to be the property of ACHQ, and shall not be considered to be held for the benefit of Merchant or be considered to be an asset for or property of Merchant.
4.12 FUNDING POLICY
Merchant acknowledges and agrees that funding for each origination will be set by ACHQ at ACHQ’s sole and absolute discretion. Unless expressly agreed to in writing the amount disbursed will be the origination amount less returned items and any reserve amount as required. ACHQ reserves the right to change the funding schedule, average balance requirements or reserve requirements at its sole and absolute discretion for any Merchant regardless of SEC type.
4.13 AUDIT REQUIREMENTS
ACHQ and its ODFI shall have the right to audit Merchant concerning its compliance with the Rules and applicable Regulations.
4.14 CUSTOMER SERVICE
Merchant agrees to maintain, support and staff a customer service line with a U.S. domiciled telephone number during normal U.S. business hours. If Merchant fails to maintain a working customer service telephone line, then ACHQ will, at its sole discretion, process customer services call on behalf of Merchant at a charge of $5.00 per inbound/outbound call and $5.00 per refund processed.
Merchant agrees that, without ACHQ’s prior written consent, it will not, for a period of (1) year from the date this agreement is terminated, directly or indirectly solicit for employment, or employ any person who is now employed by ACHQ.
4.16 ENTIRE AGREEMENT
This Agreement makes up the entire Agreement between the parties concerning ACH services and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions whether oral or written of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement. There are no third-party beneficiaries of this Agreement.
In the event any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, only that provision shall be severed from this Agreement and the remaining provisions shall continue in force, provided that each Party preserves the substantial benefits of the bargain contemplated in this Agreement.
4.18 INTERPRETATION; WAIVER
Any waiver by a party of a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. The parties agree that, should any provision or term of this Agreement require interpretation or construction, this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party that prepared this Agreement.
ACHQ shall have the right to assign this Agreement, including its rights and performance obligations under the Agreement, to any corporation or other entity which ACHQ may hereafter merge or consolidate, or to which ACHQ may transfer all or substantially all of its assets provided such corporation or other entity assumes all of ACHQ’S obligations hereunder. Upon assignees or transferee’s assumption of ACHQ’S obligations pursuant to this Agreement, ACHQ shall have no further liability to Merchant and Merchant shall look solely to any assignee or transferee for performance of any and all obligations arising under or related to this Agreement.
4.20 EXECUTION IN COUNTERPARTS’ COPIES
This Agreement, including all Exhibits and Addendums thereto (which are incorporated as part hereof) may be executed in the original or by facsimile or e-mail in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and photocopies of this Agreement shall be considered originals for all purposes, including, but not limited to, any court or arbitration proceedings. Merchant acknowledges that they may not receive a countersigned Agreement, exhibits or addendums from ACHQ unless such countersigned Agreement is requested by Merchant in writing. Acceptance of all terms and conditions is upon ACHQ’s receipt of the agreement executed by Merchant.
4.21 BINDING CONTRACT
This Agreement shall be binding on both parties only upon execution by an authorized representative of ACHQ.
5.0 PERSONAL GUARANTY
To endure and in consideration of ACHQ’s acceptance of the Merchant Application and this Agreement, the undersigned absolutely and unconditionally guarantees to ACHQ full and prompt payment and performance when due of each any every condition and obligation of Merchant under this Application and Agreement, including all exhibits and amendments thereto. The undersigned guarantor(s) further acknowledges and agrees to pay all expenses of collection on this guaranty, including reasonable attorneys’ fees incurred by reason of the default of the Merchant or the default of the guarantor(s). The undersigned guarantor(s) waives prior demand on Merchant. ACHQ shall not be required to first proceed against Merchant to enforce any other remedy before proceeding against the undersigned personal guarantor(s). This is a continuing and irrevocable guaranty which shall not be discharged or affected by the death of the undersigned, shall bind heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any other successor of ACHQ. The term of this personal guaranty shall be for the duration of the Agreement, and any other addendum or amendment thereto, and shall guarantee all obligations which may arise or accrue during the term thereof although enforcement may be sought subsequent to any termination.
6.0 THIRD-PARTY SENDER CUSTOMER/ORIGINATOR ACKNOWLEDGMENT
Merchant confirms and agrees that it has authorized ACHQ (“TPS”) to act as Merchant’s agent in processing ACH Entries for Merchant, and that TPS will establish one or more clearing accounts with, and submit ACH Entries on behalf of the at an originating depository financial institution (“ODFI”). Merchant: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Merchant’s ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third Party Senders), and if international ACH Entries are initiated by Merchant, the Rules applicable to IAT ACH Entries, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act and Federal Reserve Board Regulation E (the foregoing and the ACH Rules are, collectively, the “Applicable Rules”); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”) (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services.
Merchant represents and warrants as to each ACH Entry that it has obtained the necessary authorizations under the Rules and Applicable Rules and that it shall not initiate any funds transfer after the authorization for the same has been revoked (or the agreement between Merchant and TPS has been terminated). With respect to each IAT Entry TPS sends to ODFI on behalf of Merchant, Merchant represents and warrants to ODFI that such IAT Entry is in compliance with United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that no such IAT Entry violates United States law, including, but not limited to, rules promulgated and programs administered by OFAC and FinCEN, that neither TPS nor the Merchant are acting on behalf of or transmitting funds to any party subject to OFAC sanctions and that such IAT Entry complies with the laws and payment system rules of the receiving country. Merchant acknowledges that ODFI and other parties must comply with the Rules and United States law for IAT Entries. The performance by each of these parties, including ODFI, of obligations with respect to IAT Entries may cause delays in processing, settlement, and/or availability of IAT Entries. Merchant waives and releases ODFI from any liability or obligation, including, but not limited to, funds availability obligations, caused by or arising out of any such delay associated with IAT Entries.
Merchant understands that ODFI has the right to: (i) review, monitor, and audit Merchant’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Merchant; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI and/or the breach or termination of its agreement with TPS.
Merchant is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Merchant or TPS provides. Merchant authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Merchant, including but not limited to funds transfer instructions. ODFI is not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Merchant understands that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and Merchant shall defend, indemnify, and hold ODFI harmless from, the actions or omissions of TPS, or any claim made against ODFI arising out of Merchant’s use of the services, breach of this Agreement, or breach of any warranty under the Rules. IN NO EVENT WILL ODFI BE LIABLE OR RESPONSIBLE FOR, AND TPS AND MERCHANT BEAR ALL RISK ASSOCIATED WITH, FOREIGN EXCHANGE CONVERSION AND ANY GAINS AND LOSSES RESULTING FROM THE CONVERSION OF CURRENCIES IN CONNECTION WITH ANY ENTRY.
This addendum shall survive the termination of the agreement between TPS and ODFI. Notwithstanding anything to the contrary elsewhere in the Agreement between TPS and Merchant, ODFI shall be considered an intended beneficiary of this Acknowledgment and is entitled to enforce its terms. This Acknowledgment is agreed to in consideration of ODFI’s agreement to serve as ODFI. Merchant waives notice of the ODFI’s acceptance of this Acknowledgment.
Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A (1) Merchant Entries may be transmitted through the Automated Clearing House; (2) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Florida unless it has been otherwise agreed that the law of some other state shall govern; (3) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (4) If a RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.