Constellation Payments may offer merchants credit card, debit card, gift card, loyalty card, and other payment processing services, ACH and POS equipment, payments related software, and related tools, goods and services (“Processing Services”) as well as an integrated managed solution for supporting online e-commerce and retail payment transactions (“Managed Solution”) (collectively, the Processing Services and Managed Solution are referred to herein as the “Services”). In order for Merchant to obtain the Services, Merchant must agree to and accept the terms and conditions of this agreement including the Terms of Service and any Schedules, Exhibits, and Appendices attached hereto, all of which are incorporated herein by reference (collectively, the “Agreement”). Merchant is hereby granted the right to access and use the Managed Solution solely for the Merchant’s use to process Transactions on behalf of its Customers.

Except as otherwise agreed in writing between Constellation Payments and Merchant, this Agreement represents the complete and exclusive agreement between Constellation Payments and Merchant concerning Merchant’s use of the Services and all related matters and supersedes all prior agreements, negotiations, or understandings between Constellation Payments and Merchant in any way relating to these matters. Except as otherwise expressly provided for in this Agreement, no other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever.

Except as set forth in the Terms of Service, this Agreement may not be modified except by a later written agreement signed by both parties. By executing a copy of this Agreement or by using or accessing the Services through any means, Merchant acknowledges and agrees that: (i) it has reviewed and understands this Agreement; (ii) it agrees to be legally bound by the terms and conditions of this Agreement; and (iii) its use of the Services and any related products or services will be governed by this Agreement. If Merchant does not agree, or is not willing to be bound by, the terms and conditions of this Agreement, Merchant should not accept this Agreement and should not access or use the Services.

Constellation Payments Terms of Service

These Terms of Service form part of the Agreement. Merchant’s use of the Services must be in compliance with these Terms of Service. It is Merchant’s responsibility to read these Terms of Service carefully. Constellation Payments is entering into this Agreement on behalf of and as an agent of the Bank. Exhibit D contains a glossary of definitions of capitalized terms that are not otherwise defined in the text of this Agreement.

1. Services

The Services are a cloud-based payment system by which Constellation Payments and Bank serve as an agent for Merchants to receive payments on their behalf.  Constellation Payments may also, where requested by a Merchant, perform other services on behalf of Merchant as per the terms hereof and the selections of the Merchant made through its Account. Merchant’s use of the Services shall at all times comply with Applicable Laws and the Rules, including, without limitation, those posted at the following sites:

• https://usa.visa.com/support/consumer/visa-rules.html
• https://www.mastercard.us/en-us/business/overview/support/rules.html
• https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-Implementation-Guide.pdf.
• www.americanexpress.com/merchantopguide

 Each applicable Association’s complete Operating Regulations are incorporated by reference into this Agreement and will control with respect to any conflict in terms between this Agreement and such Operating Regulation. Merchant will not discriminate against Cards or Issuers (e.g., limited acceptance options) except in full compliance with the Operating Regulations, and will comply with all Operating Regulations, applicable laws, and regulations related to its business operations, PCI-DSS obligations, the use of an Association’s marks, and each transaction acquired hereunder. Merchant expressly agrees that it will accept Cards and protect, utilize, or restrict transaction data, including the magnetic stripe and CVV2, in accordance with the terms of this Agreement, applicable law or regulation, and the Operating Regulations, and will cooperate with any audit requested by an Association until such audit is completed.

In addition to complying with each Association’s obligations or prohibitions related to acceptance, disbursement, or resubmission of a transaction, Merchant may not submit any illegal, fraudulent, or unauthorized transaction and shall only submit transactions for the sale of its own goods or services, and not any other person or company, and may not receive payment on behalf of or, unless authorized by law, redirect payments to any other party. Merchant covenants that it is not a third-party beneficiary under any agreement with an Association, however, an Association may be a third-party beneficiary of this Agreement, and shall have the rights, but not any obligation, necessary to fully enforce the terms of this Agreement against the Merchant

Constellation Payments reserves the right to monitor Merchant’s use of the Services to ensure compliance with this Agreement, Applicable Laws and the Rules. If Constellation Payments determines that Merchant is not in compliance with this Agreement, Applicable Laws or the Rules, Constellation Payments reserves the right to take appropriate action including, but not limited to, suspending or terminating this Agreement or access to the Account.

The Payment Networks have the right to enforce any provision of the Rules and to prohibit Merchant and/or Constellation Payments from engaging in any conduct the Payment Network deems could injure or could create a risk of injury to the Payment Network, including injury to reputation, or that could adversely affect the integrity of the interchange system, the Payment Network’s confidential information, or both. Merchant will not take any action that could interfere with or prevent the exercise of this right by the Payment Networks.

During the Term of this Agreement, Merchant will not enter into an agreement with any other entity for services similar to those Services Merchant has elected to receive from Constellation Payments under this Agreement, without Constellation Payments’ prior written consent.

2. Account

So long as Merchant is not in breach of this Agreement, Merchant shall be granted a unique and private account accessible through the Service (“Account”).  The Account shall be a record of Merchant Transactions and Fees.  Constellation Payments shall provide Merchant with access codes for the Account.  Merchant may not disclose such codes or permit any third party to use them on penalty of forfeiting access to the Account.  Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify Constellation Payments for any and all claims, losses or other liabilities arising therefrom.  Except as required to deliver the Services or as otherwise required by law, Constellation Payments shall not grant any third party access to the Account of Merchant.

Concurrent with the execution of this Agreement, Merchant is to provide Constellation Payments with the current address of each of its offices, all “doing business as” (DBA) names used by Merchant, and a complete description of Product provided. Thereafter and during the Term of the Agreement, Merchant is to immediately advise Constellation Payments in writing upon any change to the information previously provided.

3. Prohibited Activities

Merchant shall not use the Services to, directly or indirectly, knowingly or unknowingly, assist in any illegal activity or any Prohibited Activity (all of which are listed below in the Glossary in Exhibit D to this Agreement).

Additionally, Merchant shall not: (i) provide to Constellation Payments or Processor any inaccurate, incomplete, or misleading information; (ii) fail to provide Constellation Payments or Processor with timely notification of events that have caused or could cause material changes in the Merchant’s ability to fulfill its obligations under this Agreement, including but not limited to (a) adverse changes in the Merchant’s financial health; (b) adverse changes in the Merchant’s business conditions or environment; or (c) actions by governmental or non-governmental agencies; (iii) transfer or attempt to transfer its financial liability by asking or requiring Cardholders to waive their dispute rights; (iv) submit Transactions on behalf of another entity that the Payment Networks would consider a sub-ISO, Payment Service Provider (PSP), Payment Facilitator, or other third party payment provider; or (v) submit Transactions unless Merchant’s principal places of business is in the United States.

Merchant may not itself or through any other Person: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the Services and/or content made accessible by Constellation Payments including any information, pictures, videos, text, graphics, software programs used by Constellation Payments in connection with the Services and material and data obtained from or through the Services (collectively, the “Content”), or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content, other than as permitted by Constellation Payments in writing; (ii) make any use of the Content and/or Services on any other website or networked computer environment for any purpose, or replicate or copy the Content without Constellation Payments’ prior written consent; (iii) interfere with or violate any other services or user’s right to privacy or other rights, or harvest or collect personally identifiable information about users of the Services without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine; (iv) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (v) transmit or otherwise make available in connection with these Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Services, or the servers or networks that host the Services or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (vii) sell, license, or exploit for any commercial purposes any use of or access to the Services other than permitted by Constellation Payments; (viii) forward any data generated from the Services without the prior written consent of Constellation Payments’; (ix) sub-license any or all of the Services to any third party; or (x) transfer or assign the Account password, even temporarily, to a third party.

4. Application

On sign-up and throughout the Term of this Agreement, Merchant shall supply, through the Application, and by such other means as Constellation Payments may require, information concerning the Merchant, its Guarantor and principals.  Merchant shall notify Constellation Payments of any changes in such information. Merchant shall maintain insurance covering the types of risks and in amounts that are customary for a business of the type and size operated by Merchant. On request, Merchant shall provide Constellation Payments with copies of its declaration pages and insurance policies.

5. Prohibited Merchants

All of the following Persons are prohibited from using the Services: (i) Persons who appear on the U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN); (ii) Persons who are less than 18 years of age; (iii) Persons, or their Affiliates who have been previously terminated for cause by Constellation Payments or any of its Affiliates; and (iv) Persons who are not both domiciled and resident in the United States.

6.  Honor All Cards

Merchant shall accept all valid Cards when properly presented by Cardholders in payment for Products, subject to applicable Rules including, but not limited to, those requiring Merchant to elect whether to accept credit only, debit only or both debit and credit Cards. Merchant’s election in that regard is set forth in the Application. Merchant must maintain a policy and engage in an acceptance practice that does not discriminate among customers seeking to make purchases with a Card (versus some other means of payment accepted by Merchant) and that does not discourage the use of a Card in favor of any other Card acceptance brand. A Merchant that does not deal with the public at large (for example, a private club) is considered to comply with this Rule if it honors all valid and properly presented Cards of Cardholders that have purchasing privileges with the Merchant.. If Merchant elects to require Cardholders to pay a surcharge (meaning any fee charged in connection with a Transaction that is not charged if another payment method is used), Merchant must comply with all Applicable Laws and the Rules. Other than as expressly permitted by Applicable Laws and the Rules, Merchant must not add any amount over the advertised or normal price to a Transaction. This prohibition includes, except where permitted, convenience fees (meaning fees charged by Merchant for a bona fide convenience to the Cardholder that is not charged solely for the acceptance of the Card, such as using a payment channel outside of Merchant’s customary payment channel), service fees (meaning fees assessed to a Cardholder that uses a Card to pay for goods and services in a permitted merchant category),  any part of a merchant discount fee (meaning any fee Merchant pays to Bank so that Bank will acquire Transactions of Merchant), or any contemporaneous finance charge in connection with a Transaction. Merchant may provide a discount to its customers for cash payments; however, the discount must be given as a reduction from the standard price unless otherwise permitted by the Rules and Applicable Laws. Merchant is permitted to charge a fee (such as a bona fide commission, postage, or expedited service fee) if the fee is imposed on all like transactions regardless of the form of payment used.  A Merchant must not require, or indicate that it requires, a minimum or maximum Transaction amount to accept a valid and properly presented Card unless otherwise permitted by the Rule and Applicable Laws. Merchant may request but must not require a Cardholder to provide identification information or personal information as a condition of Card acceptance unless such information is required to complete the Transaction (such as for delivery of goods or services) or the Rules specifically permit or require such information to be collected, such as in a face-to-face environment when Merchant has reason to believe the identity of the person presenting the Card may not be the Cardholder.

7. Card Acceptance

Merchant shall follow the steps provided by Constellation Payments for accepting Cards and shall: (i) determine in good faith and to the best of its ability that the Card is valid on its face; (ii) obtain Authorization from the Issuing Bank to charge the Cardholder’s account; and (iii) deliver a true and completed copy of the Transaction Record to the Cardholder at the time the goods are delivered or services performed where applicable, or, if the Transaction Record is prepared by a POS Device, at the time of the sale. Merchant must ensure that the Cardholder is easily able to understand that Merchant is responsible for the Transaction, including delivery of the goods (whether physical or digital) or provision of the services that are the subject of the Transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Transaction. For all Transactions, including CNP Transactions: (iv) Merchant may accept Cards only at locations that are within Bank’s permitted area. Merchant’s location for Card present Transactions is at an address in the United States where the Merchant conducts the business described in the Application. Merchant’s location for CNP Transactions is the country in which the Transaction takes place (which should be the same as the address described in Merchant’s Application). The country of a Merchant proposing to engage in CNP Transactions, subject to approval by Constellation Payments, is the country meeting all of the Operating Requirements described in Section 10(A); (v) Merchant must prominently and clearly disclose to Cardholder, at all points of interaction, (a) Merchant’s name so that Cardholder can easily distinguish Merchant from any other party such as a supplier of products or services to Merchant; and (b) Merchant’s country location (physical address) to enable Cardholder to easily determine, among other things, whether the Transaction will be a domestic Transaction or a cross-border Transaction. Merchant location must be disclosed before Cardholder is prompted to provide Card information. Merchant’s name and country location, as disclosed to Cardholder at the point of interaction and on Transaction receipts, must be the same as what is provided in Authorization and clearing Transaction messages. On request from Constellation Payments, Merchant must provide a written certification statement signed by one or more of Merchant’s duly authorized senior executives or officers attesting that (vi) the country specified to Constellation Payments as Merchant’s location satisfies all of the foregoing criteria, and (vii) the address disclosed to Cardholders and appearing in Transaction messages is a location in Merchant’s specified country and is an address from which Merchant is conducting the business activity and operations governed by this Agreement.  Merchant must be identified in Authorization and clearing Transaction messages with the MCC that accurately reflects the primary business of Merchant.

8. Additional Limitations on Transactions

Merchant shall not submit any Transaction: (i) that adds any tax to the Transaction, unless Applicable Laws expressly allow for Merchant to impose a tax. Any tax amount, if allowed, must be included in the Transaction amount and not collected separately; (ii) that represents the refinancing or transfer of an existing Cardholder obligation that is deemed to be uncollectible; (iii) that arises from the dishonor of a Cardholder’s personal check or from the acceptance of a Card at a terminal that dispenses scrip; (iv) that is not a valid Transaction between Merchant and a bona fide Cardholder; (v) that Merchant knows or should have known to be fraudulent, illegal or not authorized by the Cardholder, or that it knows or should have known to be authorized by a Cardholder colluding with Merchant for a fraudulent or illegal purpose; (vi) until after the Product is shipped or performed, as applicable, and/or Merchant has completed the Transaction, unless Merchant has obtained Cardholder consent for a recurring Transaction; (vii) where a valid Authorization was required but not obtained; (viii) where multiple Authorizations for amounts less than the total sale amount have been obtained; (ix) which results in a disbursement of cash or cash equivalent to a Cardholder; (x) that establishes a minimum or maximum dollar Transaction amount, except when authorized by the Rules; (xi) that may damage the goodwill of Constellation Payments or any of the Payment Networks or reflect negatively on the Payment Networks’ or Constellation Payments’ Marks, all as determined by Constellation Payments in its sole discretion; (xii) that is not in full compliance with Applicable Laws and Rules; (xiii) for the sale of a product or service (including an image) which is patently offensive and lacks serious artistic value or for any other product or service that a Payment Network deems unacceptable to sell in connection with its Mark; (xiv) prior to the Term or following termination of this Agreement; (xv) while Merchant is in breach of this Agreement; (xvi) if Merchant has previously sent the same Transaction to another acquiring bank and that acquiring bank has declined to process the Transaction; (xvii) that has failed address verification; (xviii) that is already subject to a partial refund under this Agreement or otherwise; or (xix) that Merchant knows or should have  known to be unacceptable to Constellation Payments regardless of whether Merchant has been given notice of such unacceptable Transactions by Constellation Payments.

Merchant shall not: (i) mislead any Cardholder into believing that his or her Transaction is being processed on one Card when it is actually being processed on another Card; (ii) use the Services for illegal purposes, or to interfere with or disrupt other users of the Services;  (iii) use any Card other than for the sole purpose of completing a bona fide Transaction with a bond fide Cardholder; or (iv) reproduce or use a Cardholder’s signature for any purpose other than the Transaction for which it was obtained, unless specifically requested by Constellation Payments.

9.  Advertising

Merchant’s use of promotional materials provided by Constellation Payments and display of any tradename, trademark, symbol, service mark or logo type associated with a Card or Payment Network (collectively “Marks”): (i) is limited to informing the public that the Card shall be accepted at Merchant’s place(s) of business; (ii) will be as directed by Constellation Payments; and (iii) must be in accordance with the Rules and branding requirements as may be in effect from time to time. Payment Network branding requirements can be found at www.merchantsignage.visa.com and www.brand.mastercard.com,  as well as additional areas of the websites for those and other Payment Networks. Merchant shall prominently display the promotional materials including, without limitation, materials, acceptance decals and signs containing the Marks in its place(s) of business at the point of interaction and on its POS Devices, such that they are clearly visible to the public at such locations. Examples of Merchant requirements are: (iv) where Merchant has a physical location, the preferred way to communicate acceptance is to display the Marks on a main entry door or on a nearby window. If these locations are not available, the Marks must be displayed so they are seen easily from the outside; (v) when a Cardholder-facing POS Device is present, the appropriate Marks must be displayed on the POS Device at parity (in terms of size, frequency, and location) with all other acceptance Marks of any type shown; (vi) for unattended POS Devices, the Marks must be displayed either on the POS Device or on its screen, or in both locations; and (vii) for CNP Transactions and recurring payment Transactions, the Marks must be displayed where payment options are presented. Merchant may not use any promotional materials or Marks in any way which suggests or implies that Constellation Payments or a Payment Network endorses any Products other than Card services. Merchant shall: (viii) not use, adopt, register, or attempt to register a company name, product name, or trademark that is confusingly similar to any Payment Network product, service name or Marks; (ix) ensure that any promotional material or other documentation on which the Payment Network Marks appear does not infringe, dilute, or denigrate any of the Payment Network Marks, products, or services or impair the reputation or goodwill of the Payment Networks or the goodwill associated with the Payment Network Marks; and (x) not refer to a Payment Network in stating eligibility for its Products or membership. Merchant may be required to supply Constellation Payments with samples of any materials or images bearing the Marks that Merchant intends to use. Merchant requirements for contactless-enabled POS Devices, QR-enabled POS Devices, and e-commerce Transactions can primarily be found at the websites noted above. Merchant shall be responsible for meeting all requirements of the Payment Brands for these types of Transactions as well, where applicable. Merchant’s display of the Marks shall give each payment acceptance mark visual parity with any other payment acceptance mark, symbol or logo displayed by Merchant, meaning no other such mark, symbol or logo shall be displayed more prominently or in such a way which causes confusion concerning Merchant’s acceptance of Cards. Each acceptance Mark must be displayed as a free-standing mark, meaning that an acceptance Mark must not be displayed so as to suggest that it is either a secondary means of payment or exclusively linked to another acceptance brand. Marks must not be displayed at any POS Device that dispenses scrip. Constellation Payments may require Merchant to make changes to its website or otherwise where Constellation Payments deems it necessary or appropriate to ensure that Merchant remains in compliance with the Rules governing use of the Marks. The Payment Networks may, at any time, immediately and without advance notice, prohibit Merchant from using any of the Marks for any reason. Merchant’s right to use and display promotional materials and Marks will terminate upon termination of this Agreement or upon Merchant’s receipt of notification to discontinue use or display, whichever is earlier, at which time Merchant shall immediately cease use and return any inventory to Constellation Payments. Use or display of the Marks does not give Merchant any ownership or interest in such Marks.  Each Payment Network is the sole and exclusive owner of its Marks and Merchant shall not contest the ownership of the Marks for any reason.

10.  CNP Transactions, Installment Orders, Partial Payments, and Recurring Transactions

Unless Merchant has been approved by Constellation Payments in writing to accept CNP Transactions, Merchant warrants that it shall submit only Transactions related to its walk-in trade business located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If Constellation Payments determines Merchant has accepted unapproved CNP Transactions, Constellation Payments may immediately terminate this Agreement without prior notice or opportunity to cure, debit back to Merchant all such unapproved Card Transactions from the first day of processing hereunder and exercise all other rights hereunder to protect against loss, including but not limited to, withholding funds, establishing a Reserve, demanding other security, foreclosing on security interests and exercising all rights triggered by the termination of this Agreement. Merchant understands that CNP Transactions have a higher risk of chargeback and assumes all risk associated with accepting CNP Transactions. If Merchant has been approved to accept CNP Transactions (including CNP Transactions where international Cards are used), Merchant shall obtain an Authorization for each such sales. All other Transaction requirements and limitations set forth herein shall also apply to such CNP Transactions.

Additionally, Merchant must fulfill the following requirements:

A) Operating Requirements. Merchant must:

(i) conduct business activity and operations directly related to the Transactions in the United States and have a permanent establishment through which Transactions are completed in the United States. By way of example and not limitation, a post office box address, the location at which a server is stored, the address of a warehouse having no business-related functions, the Uniform Resource Locator (URL) of a website, or address of the Merchant’s law firm, vendor, or agent does not satisfy this requirement. In the absence of a permanent establishment, if Merchant provides only digital goods, then Merchant’s principals must work in the United States;

(ii) hold all necessary permits required under Applicable Laws to conduct its business activity and operations in the United States as a domestic entity;

(iii) have a United States address for correspondence and judicial process. A post office box or mail-forwarding address do not meet this requirement;

(iv) comply with United States federal, state and local tax laws and regulations and pay income taxes on profits attributable to Transactions in the United States and be registered to collect (regardless of whether actually required to collect) indirect taxes, including but not limited to, any sales tax and any similar tax on CNP Transactions in the United States; and

(v) except as otherwise permitted by United States consumer law, Merchant’s sale and transaction terms and conditions shall state that Merchant, as the contractual counterparty to the consumer, is subject to the laws and courts of the United States.

B) CNP Transaction Record Data Requirements. The CNP Transaction Record to be delivered to a Cardholder by Merchant must include the following:

(i)  Merchant’s location and a recognizable name for Merchant such as;

1. 1. 1. Merchant doing business as (“dba”),
      2. Merchant Universal Resource Locator (“URL”), or
      3. Merchant name used in the Transaction Record;

Merchant’s location and name must be the same as what was disclosed to the Cardholder at the point of interaction.

(ii) Merchant’s customer service number(s) for goods or services delivered domestically or internationally;

(iii) The terms and conditions of restricted sales; and

(iv) If offered, the exact date a free trial period ends.

C) Website Requirements for CNP Merchants. A website operated by a CNP Merchant must contain all of the following information prominently and clearly disclosing to the Cardholder at all points of interaction:

(i) The name of Merchant, so that the Cardholder can easily distinguish Merchant from any other party, such as a supplier of products or services to Merchant;

(ii) Complete description of the products or services offered by Merchant;

(iii) Return merchandise and refund policy, which includes the communication of the return policy during the order process and the requirement that the Cardholder must be allowed to select a “click to accept” option or other affirmative button to acknowledge the policy;

(iv) Terms and conditions of sale;

(v)  Customer service contact including e-mail address or telephone number;

(vi) Transaction currency;

(vii) Export or legal restrictions;

(viii) Delivery policy;

(ix) Consumer data privacy policy;

(x)  The security method offered for transmission of payment data such as Secure Sockets Layer or 3- D Secure; and

(xi) Merchant’s permanent location (full physical address) to enable the Cardholder to easily determine, among other things, whether the Transaction shall be a domestic (United States) Transaction or a cross-border Transaction. Merchant location must be disclosed before the Cardholder is prompted to provide Card information.

D) Installment Orders, Partial Payments, and Recurring Transactions.  If Merchant processes installment orders, partial or full prepayments and/or recurring Transactions using stored Card credentials (commonly referred to as “Card on File”), Merchant must obtain Cardholder consent. When Merchant captures Card credentials for the first time, Merchant shall obtain an agreement with Cardholder that contains all of the following:

(i) a truncated version of the stored Card credentials such as the last four (4) digits of the Card number;

(ii) a description of how the stored credentials will be used;

(iii) how the Cardholder will be notified of any changes in the agreement; and

(iv) the expiration date of the agreement, if applicable.

Prior to processing an installment Transaction or recurring Transaction, Merchant must obtain Cardholder’s express consent to an agreement that contains:

(v) the Transaction amount and currency (including charges and taxes if applicable) or a description of how the Transaction amount will be determined;

(vi) refund and cancellation policies; and

(vii) location of the Merchant outlet.

For installment Transactions, the agreement must also contain (a) the total purchase price, and (b) the terms of future payments including the currency, dates and amounts. For recurring Transactions, the agreement must also contain the fixed dates or intervals on which the Transactions will be processed.

When capturing stored credentials for the first time, Merchant shall either (a) where payment is due, submit an Authorization request, or (b) if payment is not then due, submit a Card account verification. If the initial Authorization request or Card account verification is not approved, Merchant shall not store the Cardholder’s credentials. If Cardholder initiates a Transaction using a stored Card credential, Merchant must validate Cardholder’s identity (such as by use of a login ID and password) before processing each Transaction.

For any installment Transaction all of the following apply:

(viii) Merchant shall not process an initial installment Transaction until the goods or services have been provided to Cardholder;

(ix) if an Authorization request for a subsequent payment is declined, Merchant shall notify Cardholder in writing and permit Cardholder at least seven (7) days to pay by other means;

(x) Merchant shall provide a simple cancellation procedure;

(xi) if the order was initially placed online, all of the CNP requirements must be met;

(xii) Merchant shall not complete a Transaction  (a) beyond the duration expressly agreed to by Cardholder, (b) if Cardholder requests a change in payment method, (c) if Cardholder cancels according to the agreed cancellation policy, or (d) if Merchant does not receive Authorization; and

(xiii) if Cardholder cancels in accordance with the cancellation policy, Merchant shall provide Cardholder with the following within three (3) business days, (a) cancellation or refund confirmation in writing, and (b) a Credit voucher for the amount specified in the cancellation policy.

If Merchant did not comply with the term of the sale or service, Merchant shall refund the full amount paid

11. Customers

Constellation Payments is not party to the Merchant Relationship with Merchant’s Customer that necessitates the Transaction, and Constellation Payments shall have no obligations thereunder or related thereto.  Merchant shall indemnify and hold Constellation Payments, Processor, Bank and their respective shareholders, directors, officers and employees harmless from any and all claims, losses or other liabilities arising from or in relation to the Merchant Relationship or any Product, including any and all costs associated with the legal defense related to such claims.  Each Transaction processed hereunder shall be a payment by Customer to Merchant that is received by Constellation Payments, its Processor and Bank as agent on behalf of Merchant.  Merchant hereby appoints Constellation Payments, Processor and Bank as its agent for the purposes of receiving such payment on behalf of the Merchant related to each Transaction by its Customers.  Constellation Payments shall have the right, but not the obligation, to issue receipts to Customers reflecting all Transaction funds received from them.

12.  Constellation Payments Regulatory Status

Constellation Payments is not a bank, money transmitter or other money services business.  Bank, not Constellation Payments, settles Transaction funds to Merchant.  In connection with the Services, Constellation Payments’ role is that of a payment processor. Nevertheless, Constellation Payments does not actually or constructively receive, take possession of, or hold any money or monetary value for transmission, nor does it own funds in connection with the Services or advertise, solicit or hold itself out as receiving money for transmission.  Bank is the party with sole responsibility for conducting the settlement of funds between Customers and Merchants.

13.  Merchant Release of Customer on Receipt of Payment by Agent

ON RECEIPT BY BANK OR CONSTELLATION PAYMENTS OF TRANSACTION FUNDS FROM A CUSTOMER OR ITS ISSUING BANK, MERCHANT AGREES CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO MERCHANT IN RESPECT OF THE TRANSACTION FUNDS PAID.  NO DELAY IN PAYMENT TO MERCHANT BY ITS AGENT (BANK OR CONSTELLATION PAYMENTS) OF A GIVEN TRANSACTION AMOUNT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF SUCH AGENT’S ASSETS OR BANKRUPTCY OF SUCH AGENT, SHALL SERVE TO DIMINISH THE FOREGOING OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER IN RESPECT OF WHICH A RECEIPT HAS BEEN ISSUED.

14. Card Services

Subject to Merchant compliance with technical specifications prescribed by Constellation Payments, Processor, Bank and the Rules, Merchant shall cause information concerning Card Transactions to be communicated to Payment Networks and Bank whereupon, Constellation Payments  shall cause Bank to acquire the funds related to such Transactions and settle such funds to Merchant. Constellation Payments makes no representation or guarantee with respect to Customer’s Card having sufficient available funds, that a Transaction will be authorized or processed, or that the Transaction will not later result in a chargeback or reversal. Transactions may be disputed by Cardholders at any time up to ninety (90) days from the date of Transaction and sometimes later.  Disputes resolved in favor of the Customer may result in reversal of the disputed Transaction.  Constellation Payments reserves the right to limit or restrict Transaction size or volume at any time.

If Merchant is a non-profit organization, it shall retain sole and exclusive responsibility for classifying themselves and their Transactions, issuing any required reports and receipts, and making any required tax or other filings.

15. Credit Check Consent

In connection with Merchant procuring Services from Constellation Payments, Merchant understands that one or more consumer reports as defined in the Federal Fair Credit Reporting Act as amended (“FCRA”), 15 U.S.C. 1681 and following, may be obtained by Constellation Payments from consumer reporting agencies (each a “CRA”).  Merchant (which term shall include its shareholders, officers and Guarantor in this consent) understands that this report may include information with respect to public record information, criminal records, motor vehicle operation history, education records, names and dates of previous employers, reason for termination of employment and work experience, and/or creditworthiness, capacity and standing, such information may be used to evaluate whether Merchant is an appropriate candidate for transacting with Constellation Payments and this determination may be adverse to Merchant.  The information obtained will not be provided to any parties other than to Processor, Association, or designated authorized representatives of Constellation Payments.  Merchant further understands that the CRA may not give out information about Merchant to Constellation Payments without Merchant’s written consent.

Merchant hereby authorizes Constellation Payments now, or at any time while it is party to an agreement with Constellation Payments or otherwise engaged by Constellation Payments, to obtain a consumer report on Merchant. This authorization does not include the release of Merchant’s medical information.  A copy, fax or scan of this consent shall be considered as effective and valid as the original.  Merchant understands that in the event any adverse action is taken against Merchant based in whole or in part on the consumer report, Merchant shall be provided with the name of the CRA and a copy of the report as well as a description of Merchant’s rights under the FCRA.  On request, California, Minnesota and Oklahoma residents can obtain a copy of any consumer credit report requested by Constellation Payments.  On request, New York residents can be informed if a consumer credit report has been requested on them by Constellation Payments as well as the name of the agency providing the report.  Merchant, its shareholders, officers and Guarantor have read and understand the above and authorize Constellation Payments to perform the above investigations.

Merchant must provide Constellation Payments with accurate and complete information. If Constellation Payments cannot verify that the information provided is complete and accurate, Constellation Payments may deny Merchant use of the Services or close Merchant Account. If Merchant is undergoing a forensic investigation at the time the Agreement is signed, Merchant shall fully cooperate with the investigation until it is completed.

16.  Fees

Merchant shall pay Fees for the Services.  Fees are set out in Schedule A hereto. Schedule A Fees are due and payable by Merchant until such time as this Agreement has been terminated. Fees are subject to change on thirty (30) days prior notice of any new or increased Fees arising from or related to this Agreement. If Merchant continues to use the Services after such thirty (30) day period it shall be deemed to agree to the change in Fees.  Fees may also change, with prior notice, if Payment Networks or other third parties impose additional fees on Constellation Payments for the supply of the Services and Constellation Payments is not provided with at least thirty (30) day advance notice of the same or on amendments to applicable law that require Constellation Payments to amend the Fees. Fees shall be paid to Constellation Payments by offsets from Transaction fund settlements to the Deposit Account. However, if there are insufficient Transaction funds to cover Fees, then Constellation Payments may debit the Deposit Account, or any other account of the Merchant, by ACH or otherwise including, without limitation, debits or withdrawals from the Reserve in amounts sufficient to satisfy the unpaid Fees. In the event Constellation Payments notifies Merchant that Fees still remain unsatisfied, Merchant shall pay Constellation Payments all amounts due within three (3) days of its receipt of such notice. Fees which are not paid within the final notice period shall accrue interest at the rate of the lesser of one-and-one-half percent (1.5%) per month or the highest rate permitted by Applicable Law.

17.  Direct Merchant Status

If Merchant has either (i) $1,000,000 or greater in charge volume in a rolling twelve month period, or (ii) greater than $100,000 in American Express charge volume in any three consecutive months, Merchant shall be converted from the OptBlue Program to a direct Card acceptance relationship with American Express and, upon conversion, Merchant will be bound by the then-current American Express Card acceptance agreement and American Express will set the discount and other fees payable by Merchant for American Express Card acceptance.

____By checking this box, Merchant opts out of receiving future commercial marketing communications from American Express.

Note that you may continue to receive marketing communications while American Express updates its records to reflect your choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express.”

Merchant shall be bound by the Merchant Services Agreement set forth in Exhibit A to this Agreement if Merchant processes or is anticipated to process more than $1,000,000 in Visa Transactions or $1,000,000 in Mastercard Transactions in a twelve-month period.  By agreement to this Agreement, Merchant also agrees to the terms and conditions of the Merchant Services Agreement for Sub-merchants (Exhibit A), which constitutes a legal binding contract between Merchant, on the one hand, and WORLDPAY, LLC and its designated Bank, on the other hand. Merchant agrees with the specific requirements of the American Express Merchant Regulations, US set out in Exhibit B to this Agreement.

18. ACH Authorizations

Merchant authorizes Bank to initiate electronic ACH entries to the Deposit Account for Fees and other amounts owed by Merchant hereunder and to initiate adjustments for any Transactions credited or debited in error.  Merchant’s authorization will remain in full force and effect until Merchant notifies Constellation Payments that Merchant revokes it by contacting Constellation Payments through the Account.  Merchant understand that Constellation Payments requires a reasonable time to act on Merchant’s revocation. Subject to this Agreement, Merchant also authorizes Bank to debit or credit any payment card or other payment method Constellation Payments accepts for Fees and any other amounts due by Merchant hereunder. Merchant agrees to be bound by the NACHA Rules, and Merchant agrees that all ACH transactions that Merchant initiates will comply with all Applicable Law and the Rules.

19.  Merchant Data Consent

Merchant expressly consents for each of Constellation Payments, Processor, Bank and all third parties that assist in the delivery of the Services to collect, use, store and disclose Merchant  information, including that provided in the Application, information concerning Customers, Transactions and the business of the Merchant in order to supply the Services, generate reports, reduce fraud, provide customer support, create and share aggregated data concerning the Services, and assess the risk associated with the Merchant.  Payment Networks shall have the right to use Merchant name, address, and internet addresses.

20.  Settlement

Bank shall hold, receive, disburse and settle Transaction funds on Merchant’s behalf.  Where deemed necessary by Bank or Constellation Payments, Bank may generate a paper draft or electronic funds transfer to process each Transaction.

Each Account must be linked to a verified Deposit Account. Bank will transfer settlement funds to the Merchant’s Deposit Account according to the schedule Merchant selects from those available in the Account.  If Bank cannot transfer the funds to the Merchant’s Deposit Account (due to inaccurate or obsolete bank account information entered by the Merchant, or for any other reason), Constellation Payments may refund the funds to the Customer or escheat them as provided below.  None of Bank, Constellation Payments or the Customer will have any liability to Merchant for funds so refunded.  Settlements to a bank account shall be limited or delayed based on Merchant perceived risk and history with Constellation Payments as determined in the sole and absolute discretion of Constellation Payments or Bank.  Unless otherwise agreed in writing by Constellation Payments, Transaction settlement shall be by ACH to the Deposit Account.

21.  Reserve Account

Where deemed necessary or appropriate by Bank, Processor or Constellation Payments, in either of their sole and exclusive discretions, Bank shall create a reserve account (the “Reserve”) in order to protect Bank, Processor and Constellation Payments from actual or potential liabilities hereunder and in relation to Merchant’s use of the Services.  The Reserve will be in an amount determined by Constellation Payments in its sole and absolute discretion to cover anticipated chargebacks, returns, unshipped Product and/or unfulfilled services or credit risk based on Merchant’s processing history.  The Reserve may be raised, reduced or removed at any time by Bank, Processor or Constellation Payments.  Where the Reserve is not adequately funded, Merchant shall pay all amounts requested by Constellation Payments for the Reserve within one (1) business day of a request for such amounts, and Bank, Processor and Constellation Payments may build the Reserve by off-sets from Transaction settlements or by debiting the Deposit Account, or any other account of the Merchant, by ACH. The Reserve shall be non-interest bearing with respect to Merchant.

Merchant grants Constellation Payments a security interest in and lien on any and all funds held in any Reserve, and also authorizes Constellation Payments to make any withdrawals or debits from the Reserve, without prior notice to Merchant, to collect amounts that Merchant owes Constellation Payments under this Agreement, including without limitation for any reversals of deposits or transfers.  Merchant will execute any additional documentation required for Constellation Payments to perfect Constellation Payments’ security interest in any funds in the Reserve.  This security interest survives for as long as Constellation Payments hold funds in Reserve; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law.  Merchant irrevocably assigns to Constellation Payments all rights and legal interests to any interest or other earnings that accrue or are attributable to the Reserve.

Once established, unless Constellation Payments determines otherwise at its sole discretion, the Reserve shall remain in place for at least one hundred eighty (180) days following termination or expiration of this Agreement, plus an additional reasonable period thereafter during which Cardholder disputes may remain valid under applicable Rules, as determined by Constellation Payments in its sole discretion.  Any balance remaining after Constellation Payments deems chargeback rights have expired and all of Merchant’s obligations and Constellation Payments’ other expenses, losses and damages have been paid shall be disbursed to Merchant.

22.  Cardholder Data Security

Merchant shall not: (i) use any Cardholder Data or other Transaction data received from a Cardholder, Constellation Payments or Processor for any purpose not authorized by this Agreement; or (ii) disclose any Cardholder Data or other Transaction data to any entity except for necessary disclosure to affected Cardholder, and through Constellation Payment to affected Payment Networks. If Merchant collects, stores, uses or discloses any Cardholder Data, Merchant shall comply with the Payment Card Industry Data Security Standards (“PCI DSS”) and shall certify such compliance when requested by Constellation Payments.  Merchant shall use only PCI DSS compliant Third Party Servicers in connection with the storage, processing, or transmission of Cardholder Data. Merchant has exclusive responsibility for security of Cardholder Data and other information on Merchant systems or those under Merchant’s control.  Merchant shall comply with all Applicable Laws, Rules, and rules in connection with Merchant collection, security and dissemination of any personal, financial, or Transaction information. Merchant acknowledges and agrees that it is responsible for its employees’ action and shall maintain adequate security so as to prevent a breach of Customer or Cardholder data.  In the event of any actual or suspected breach of data in possession or control of Merchant or one of its Third Party Services, Merchant shall immediately notify Constellation Payments thereof and also comply with all Applicable Laws and Rules concerning the breach.

Merchant acknowledges and agrees that Constellation Payments shall have the right to collect, use, store and disclose Transaction data for any purpose permitted by Applicable Laws including, without limitation, anonymized data analytics. Merchant shall obtain from each Customer all consents required under the Rules and Applicable Laws for the collection, use, storage and disclosure of any and all information provided by Customers or obtained by Merchant or its agents or Third Party Servicers under the Merchant Relationship or otherwise.  Merchant shall indemnify and hold Constellation Payments, Processor and Bank harmless from and against any liability arising on account of or in relation to the failure by Merchant to obtain consents from Customers related to their information or Cards.

Merchant may not store, use or disclose Cardholder Data, in whole or in part, in a manner not provided for in this Agreement, without Constellation Payments’ prior written consent. Notwithstanding other provisions herein, Merchant may transfer Cardholder Data to its representatives who have a need to know such information in order to enable Constellation Payments to provide the services described in this Agreement, provided that such Persons have agreed in writing to be bound by the confidentiality obligations herein, all Applicable Laws and Rules including, without limitation, privacy and data security requirements therein. Merchant may not use Cardholder Data or Transaction data to create or maintain a repository of Payment Network token primary account numbers (“PANs”) and corresponding Cardholder PANs or perform mapping of Payment Network token PANs to Cardholder PANs for any purpose.

Except as expressly permitted herein, a Merchant must not sell, purchase, provide, exchange or in any manner disclose Account, Cardholder Data, or Transaction data, including but not limited to the Account PAN, PAR, or token, or personal information of or about a Cardholder to anyone other than Constellation Payments, Bank, Processor, the Payment Networks, or in response to a valid government demand.

The foregoing prohibitions apply, without limitation, to Card imprints, electronic Transaction Records, carbon copies, mailing lists, tapes, database files, and all other media, records and information created or obtained as a result of a Transaction.

23.  Taxes

Merchant has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to Product sales.  Constellation Payments or Bank may have tax reporting responsibilities in connection with the Service such as an Internal Revenue Service (“IRS”) Form 1099-K.

24.  Merchant Product

Merchant is solely responsible for its Product and all customer service issues related thereto including pricing, order fulfillment, order cancellation by Merchant or the Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Merchant personnel, policies or processes.  Merchant shall post its customer service telephone number on its website. Merchant is responsible for all actions of its employees, agents and representatives.

25.  Refunds and Returns

Merchant agrees to process returns and provide refunds and adjustments for Product in accordance with this Agreement and the Rules.  The Rules require that Merchant will: (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose Merchant return or cancellation policy to Customers at the time of purchase; (iii) not give cash refunds to a Customer in connection with a payment Card sale, unless required by law; and (iv) not accept cash or any other item of value for preparing a payment Card sale refund.  Merchant’s refund policies must be the same for all payment methods.

Merchant shall not submit any refund Transaction: (i) that does not correlate to an original sales Transaction from the Cardholder; (ii) that exceeds the amount shown as the total on the original sales Transaction, unless the excess represents the exact amount required to reimburse the Cardholder for postage paid by the Cardholder to return merchandise in accordance with a policy applied consistently by Merchant to all its Customers; (iii) for returned Products that were acquired in a cash purchase from Merchant; (iv) that would cause an overdraft; or (v) more than three (3) business days following either: (a) a regulatory requirement granting a Cardholder’s right to a refund; or (b) a non-disputed Cardholder request.

26. Chargeback Liability

The amount of a Transaction may be charged back to Merchant if: (i) it is disputed by a Customer; (ii) it is reversed for any reason; (iii) it was not authorized or Constellation Payments has any reason to believe that the Transaction was not authorized; or (iv) it is unlawful, suspicious, or in violation of the terms of this Agreement.  Merchant is responsible for all chargebacks, whether or not the chargeback complies with the Rules.

Merchant shall immediately pay Constellation Payments the amount of all chargebacks and related Fees, fines, or penalties assessed by the Bank, Constellation Payments, Processor or the Payment Networks.  If Merchant does not have sufficient funds in the Deposit Account to permit Bank to ACH debit such account for the full amount owing, Constellation Payments can, or can instruct Bank to, offset the amounts thereof from other Transaction amounts owing to Merchant hereunder, debit any payment card or other payment method accepted by Constellation Payments, or oblige Merchant to make immediate payment thereof.

If Constellation Payments determines, in its sole and exclusive discretion, that Merchant is incurring an excessive amount of chargebacks, related Fees, fines, penalties or other losses, Constellation Payments or Bank may establish controls or conditions governing Merchant’s Account, including without limitation, by: (i) assessing additional Fees; (ii) creating a Reserve in an amount reasonably determined by Constellation Payments to cover anticipated fines, penalties, unpaid Fees, chargebacks, and other losses; (iii) delaying Transaction settlement payment; and (iv) terminating or suspending the Service or closing the Account. Merchant shall assist in the investigation of any and all chargebacks or other actual or potential Transaction disputes and shall timely provide such information to Constellation Payments as Constellation Payments may request.

27. Recoupment of Funds Owing to Constellation Payments

Where amounts are owing from Merchant to Constellation Payments hereunder, Constellation Payments shall have the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Merchant; (ii) due to Merchant under this Agreement; (iii) in the Reserve; or (iv) available in Merchant’s Deposit Account or other payment instrument or account registered with Bank.  Merchant’s failure to pay in full amounts that Merchant owes Constellation Payments on demand will be a breach of this Agreement.  Merchant will be liable for Constellation Payments costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1.5%) per month or the highest rate permitted by Applicable Law. In its discretion, Constellation Payments may make appropriate reports to credit reporting agencies and law enforcement authorities and cooperate with them in any resulting investigation or prosecution.  Merchant hereby expressly agrees that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided by Merchant to Constellation Payments. Such communication may be made by Constellation Payments or by anyone on its behalf, including but not limited to a third party collection agent.

28. Escheatment

If there is no activity in an Account for the period of time set forth in the applicable unclaimed property laws, and Merchant has a credit, Constellation Payments may notify Merchant by sending an email to Merchant’s registered email address.  Constellation Payments may also notify Merchant by U.S. mail.  Constellation Payments will give Merchant the option of keeping the Account open, withdrawing the funds, or requesting a check.  If Merchant does not respond to Constellation Payments’ notice within the time period specified in the notice, Constellation Payments may close the Account and Bank will escheat Merchant funds in accordance with Applicable Law.

29. Recordkeeping

Merchant shall have exclusive responsibility for: (i) compiling and retaining permanent records of all Transactions and other data, and (ii) reconciling all Transaction information that is associated with Deposit Account.  If Merchant believes that there is an error or unauthorized Transaction activity associated with Merchant’s Account or Deposit Account, Merchant shall immediately notify Constellation Payments. Constellation Payments will attempt to correct processing errors that Constellation Payments discovers by instructing the Bank to debit or credit the Deposit Account. In all other instances, Constellation Payments will only correct Transactions that are processed incorrectly if and when Merchant notifies Constellation Payments of such an error in a timely fashion.

30. Privacy

Merchant shall post a privacy policy to its website and shall honor the terms thereof.

31. Termination by Constellation Payments and Automatic Termination

Constellation Payments has the right to terminate this Agreement at any time for any reason or for no reason without prior notice to Merchant.  Additionally, (i) Constellation Payments may, at is discretion or at the direction of Bank or a Payment Network, immediately terminate this Agreement for activity deemed to be fraudulent, or that creates harm or loss of goodwill to a Payment Network, Bank or Constellation Payments, or is otherwise deemed wrongful by Constellation Payments, Bank or a Payment Network, (ii) Constellation Payments may terminate this Agreement where Constellation Payments has elected to provide Merchant with notice of Merchant’s breach and Merchant fails to remedy such breach within the thirty (30) day period following Merchant’s receipt of such notice, and (iii) a Payment Network may, in its discretion, limit or terminate this Agreement at any time. On any termination hereof, Merchant shall immediately cease using the Services and the Account.  Constellation Payments shall have the right to delete all Account information on any termination hereof, but it also has the right to retain copies thereof for up to five (5) years.  Constellation Payments shall not have any liability to Merchant on account of a termination hereof.

This Agreement shall automatically and immediately terminate if a Payment Network de-registers Constellation Payments or if Bank ceases to be approved by the Payment Networks for any reason or if such Bank fails to have a valid license with the Payment Networks to use any Mark accepted by Merchant.

32. Termination by Merchant

This Agreement shall take effect on the date Constellation Payments approves Merchant’s Application (the “Effective Date”). The initial term shall begin on the Effective Date and continue in full force for three (3) years  (the “Initial Term”), at which time the Agreement will auto-renew for successive terms of one (1) year each (each a “Renewal Term”. The Initial Term and Renewal Terms are collectively referred to herein as the “Term”.) Merchant may terminate this Agreement by giving Constellation Payments written notice of its intent to terminate at least sixty (60) days prior to the expiration of the then current term. Merchant may also terminate this Agreement if Constellation Payments materially breaches an obligation herein, provided Merchant gave Constellation Payments written notice of such breach and Constellation Payments failed to cure the breach within the thirty (30) day period following its receipt of such written notice.

When Merchant terminates this Agreement, any pending Transactions will be cancelled. Any funds that the Bank is holding in custody for Merchant at the time of termination, less any applicable Fees and other liabilities of Merchant including, without limitation, the Early Termination Fee (defined below) will be paid out to Merchant according to Merchant payment schedule, subject to Bank’s and Constellation Payments’ right to withhold such funds and/or create or add to the Reserve in accordance with this Agreement. Bank may also withhold such funds pending investigation of Merchant Transactions or potential liabilities hereunder including, but not limited to potential liability for chargebacks instigated after the date of termination relating to pre-termination Transactions.

33. Liabilities on Termination

In the event (i) Merchant terminates this Agreement at any time other than under the circumstances described in Section 32 above, or (ii) Constellation Payments terminates this Agreement under Section 31(i) or (ii), Merchant shall pay Constellation Payments the early termination fee set forth on Schedule A (“Early Termination Fee”).

On any termination hereof, Merchant shall remain liable hereunder for any and all Fees or costs accrued prior to or following termination and any other amounts owed by Merchant to Constellation Payments, Bank, Processor or a Payment Network.

34. IP

Constellation Payments reserves all rights not expressly granted to Merchant in this Agreement.  Constellation Payments owns the title, copyright and other worldwide intellectual property rights in the Service and all copies of the Service. This Agreement does not grant Merchant any rights to Constellation Payments’ Marks, nor may Merchant remove, obscure, or alter any of Constellation Payments’ Marks included in the Service.  All comments and suggestions concerning the Services provided to Constellation Payments shall be the property of Constellation Payments and Merchant shall not have any rights therein.

35. Indemnification

Merchant shall indemnify, defend and hold Constellation Payments, Bank, Processor, Payment Networks and all third parties assisting in providing the Services, as well as Customers, and their respective employees, directors, officers and agents harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) associated with any allegation, claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party that arises out of or relates to: (i) any actual or alleged breach of Merchant’s representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of Constellation Payments’ policies or the Rules; (ii) Merchant’s wrongful or improper use of the Services; (iii) any Transaction submitted by Merchant through the Services (including without limitation the accuracy of any Product information that Merchant provides or any claim or dispute arising out of Products offered or sold by Merchant); (iv) Merchant’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (v) Merchant’s violation of any Applicable Law; or (vi) any other Person’s access and/or use of the Services with Merchant’s access code.

36. Merchant Statements

Merchant represents and warrants that: (i) Merchant is eligible to register and use the Services and has the authority and capacity to enter into and perform under this Agreement; (ii) the name identified by Merchant when Merchant registered is Merchant’s name or business name under which Merchant sells Products; (iii) any sales Transaction submitted by Merchant shall represent a bona fide sale of Product by Merchant; (iv) any Transaction submitted by Merchant will accurately describe the Product sold and delivered to a Customer; (v) Merchant shall fulfill all of Merchant’s obligations to each Customer for which Merchant submits a Transaction and will resolve any Customer dispute or complaint directly with the Customer; (vi) Merchant and all Transactions initiated by Merchant shall comply with all Applicable Laws and the Rules; (vii) except in the ordinary course of business, no Transaction submitted by Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Merchant; and (viii) Merchant will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use or functioning of the Services.

37. NO WARRANTIES

THE SERVICES, AND EACH OF THEM, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT MERCHANT’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TO THE EXTENT CONSTELLATION PAYMENTS UTILIZES THIRD PARTIES’ PRODUCTS OR SERVICES IN RELATION TO THE PROVISION OF SERVICES HEREUNDER (“Third Party Suppliers”), THE THIRD PARTY SUPPLIERS OF SUCH PRODUCTS AND SERVICES DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

38. Limitation of Liability

38.1  UNDER NO CIRCUMSTANCES SHALL CONSTELLATION PAYMENTS OR ANY THIRD PARTY SUPPLIERS BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF SALES, GOODWILL, PROFITS OR REVENUES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER CONSTELLATION PAYMENTS OR THE THIRD PARTY SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF THE SAME. MERCHANT HEREBY RELEASES THE THIRD PARTY SUPPLIER OF THE MANAGED SOLUTION FROM LIABILITY FOR DAMAGES WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING IN CONNECTION WITH THIS AGREEMENT OR MERCHANT’S USE OF THE MANAGED SOLUTION.

38.2  CONSTELLATION PAYMENTS’ AND ANY THIRD PARTY SUPPLIERS’ CUMULATIVE LIABILITY TO MERCHANT OR ANY OTHER PERSON UNDER THIS AGREEMENT FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY MERCHANT HEREUNDER DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

38.3  CONSTELLATION PAYMENTS AND THIRD PARTY SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED DIRECTLY OR INDIRECTLY BY: (I) AN ACT OR OMISSION OF MERCHANT OR ITS AFFILIATES OR ANY CUSTOMER; (II) MERCHANT’S USE OF OR MERCHANT’S INABILITY TO USE THE SERVICES; (III) DELAYS OR DISRUPTIONS IN THE SERVICES, (IV) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICES; (V) BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SERVICES; (VI) ACTS OR OMISSIONS OF THIRD PARTIES; (VII) A SUSPENSION, TERMINATION OR OTHER ACTION TAKEN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WITH RESPECT TO MERCHANT’S ACCOUNT; (VIII) CONSTELLATION PAYMENTS’ NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR MERCHANT’S DIMINISHED ABILITY TO DO BUSINESS AS A RESULT OF CHANGES TO THIS AGREEMENT OR CONSTELLATION PAYMENTS’ POLICIES OR SERVICES MADE IN ACCORDANCE WITH THIS AGREEMENT, THE RULES OR APPLICABLE LAW; (IX) BREACHES BY MERCHANT OF THIS AGREEMENT; (X) INCORRECT OR INCOMPLETE TRANSACTION INFORMATION; OR (XI) CONSTELLATION PAYMENTS, BANK OR ONE OF ITS AFFILIATES, PARTNERS OR OTHER THIRD PARTY SUPPLIERS ELECTING TO SUSPEND PROVIDING SERVICES IN RESPECT OF MERCHANT OR A CUSTOMER ON THE BASIS OF ITS LEGAL, COMPLIANCE, OR RISK POLICIES.

39. Miscellaneous

39.1  Governing Law and Jurisdiction.   This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Nevada, excluding (i) that body of law known as conflicts of law and (ii) the United Nations Convention on Contracts for the International Sale of Goods. Merchant hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Clark County, Nevada with respect to any action, claim, proceeding or suit arising out of or related to this Agreement and agrees not to commence or prosecute any such action, claim, proceeding or suit other than in such courts. MERCHANT AND CONSTELLATION PAYMENTS IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. Notwithstanding the foregoing, in the event that Merchant or Constellation Payments are not able to resolve a dispute with American Express, or a claim against Constellation Payments or any other entity that American Express has a right to join, Exhibit B will apply.

39.2  Limitation on Time to Initiate a Dispute.    Unless otherwise required by Applicable Law, any action or proceeding by Merchant relating to any dispute or claim by Merchant hereunder, regardless of form, must commence within one (1) year after the cause of action accrues, failing which Merchant foregoes any rights in respect thereof.

39.3  Electronic Signature.   When provided to Merchant for execution in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign).  By pressing “Submit”, “Accept” or “I Agree”, Merchant agrees (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, (iii) that Merchant has the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize Constellation Payments to conduct an investigation of Merchant’s credit history and that of its principals with various credit reporting and credit bureau agencies for the sole purpose of determining acceptance of this Agreement and ongoing performance hereunder.

39.4  Third Party Services.   Constellation Payments is not liable for Third Party Servicers or their services even if the Site contains links to them or the Services are integrated with them.  The inclusion of any link or integration to a Third Party Servicer does not imply an approval, endorsement, or recommendation by Constellation Payments. Merchant agrees that Merchant accesses any such website at Merchant’s own risk.

39.5 Notices. All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by electronic mail to the following addresses, if to Constellation Payments: _______________________; if to Merchant to the e-mail address indicated on the Application.  Any notice sent in accordance with this Section shall be effective upon transmission and electronic confirmation of receipt, or if transmitted and received on a non-business day, on the first business day following transmission and electronic confirmation of receipt.  Any notice of default of Constellation Payments sent to Constellation Payments shall also be sent by courier to the address of Constellation Payments appearing on the Site with proof of delivery.

39.6  Amendment of Agreement.   Constellation Payments  reserves the right to modify the Services or change or add to the terms of this Agreement at any time with electronic notice through the Account, or by such other means as it may select, in a manner and at such time as Constellation Payments  deems reasonable.  If Merchant does not terminate this Agreement following any such change, then Merchant shall be deemed to have accepted the change.  This Agreement may also be amended by written agreement between the parties hereto.

39.7  Independent Contractors. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall have the right or authority to bind the other party. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.

39.8  Guarantee. The individual executing this Agreement on behalf of Merchant personally guarantees performance by the Merchant hereunder and shall be joint and severally liable with Merchant for all liabilities of the Merchant hereunder (the “Guarantee”).

39.9  Assignment. The Merchant may not assign or otherwise transfer any or all of its rights or obligations under this Agreement without Constellation Payments’ prior written consent, which consent may be withheld in Constellation Payments’ sole and exclusive discretion, and any assignment without such prior written consent will be null and void. Constellation Payments may assign any of its rights or obligations hereunder to a third party on notice to Merchant provided that the successor in interest to Constellation Payments assumes the corresponding obligations of Constellation Payments hereunder.

39.10 Performance by Constellation Payments Affiliates. Notwithstanding anything in this Agreement, Merchant agrees and acknowledges that Constellation Payments may provide some of the Services through its Affiliates or other third party service providers. Merchant agrees and acknowledges that providing the Service through any third party or Affiliate shall not be considered an assignment of this Agreement and Constellation Payments shall be the sole entity liable for any provisions in this Agreement which apply to Constellation Payments, including to the performance of the Services and execution of the Agreement.

39.11 Electronic Communication. Merchant agrees to receive all communication under this Agreement by electronic means, including but not limited to (i) agreements and policies, such as this Agreement and Constellation Payments’  privacy policy and annual disclosures including updates thereto; (ii) Transaction receipts or confirmations; (iii) communication in relation to delinquencies (which may also be by phone, and may be made by Constellation Payments or by anyone on its behalf, including a third party collection agent); (iv) Account statements and history; and (v) tax statements. Merchant shall make sure that its primary email address is up to date in the Account and it shall check that email periodically and not less than once per week.  In the event that any email from Constellation Payments or other communication is blocked by a spam filter or other issue outside of the control of Constellation Payments, Merchant shall be deemed to have received the communication all the same.  If Merchant prefers written forms of tax documents, it shall notify Constellation Payments of such preference via the contact information on the Site and in the Account.

39.12 Whole Agreement. This Agreement and its Schedules, Exhibits and Appendices constitute the entire understanding and agreement between the parties and supersedes any and all prior discussions, agreements, promises and correspondence, whether oral or written, with regard to the subject matter hereof or otherwise, including (without limitation) any memorandum of understanding between the parties. In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules will govern.

39.13 Headings. Headings in this Agreement are included for reference purposes only and are not to be used in interpreting this Agreement. The recital and Schedules, Exhibits and Appendices to this Agreement constitute an integral part thereof.

39.14 No Waiver. No failure, delay or forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof.

39.15 Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and the unenforceable provision shall be enforced to the maximum extent permissible under law. Nothing in this Agreement shall be construed or be deemed to create any rights or remedies in or for the benefit of any third party.

39.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. A scanned or faxed version of this Agreement shall be deemed as an acceptable original thereof.

39.17 Survival. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive and remain in effect in accordance with its terms upon the termination of this Agreement.  For greater certainty but without limitation, Sections 11, 12, 13, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 32, 33, 34, 35, 36, 37, 38 and 39 shall survive termination hereof.

Exhibit A

Merchant Services Agreement for Sub-merchants

This Merchant Services Agreement for Sub-Merchants (“Merchant Agreement”) is made by and among WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) and the “Merchant” as defined in, and in connection with, the Terms of Service between Constellation Payments Processing USA, Inc. and such Merchant (herein referred to as “Sub-merchant”). Capitalized terms not otherwise defined herein have the respective meanings given them in the Constellation Payments Terms of Service. Acquirer will provide Sub-merchant with certain payment processing (the “Services”) in accordance with the terms of this Merchant Agreement. In consideration of Sub-merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with the Payment Networks, Sub-merchant is required to comply with the Rules as they pertain to applicable credit and debit card payments. In addition, if Sub-merchant meets certain requirements under the operation regulations of a Payment Network or the Rules otherwise require, Sub-merchant may be required to enter into a direct relationship with an entity that is a Member of the Payment Networks. By agreeing to the Constellation Payments Terms of Service to which this Merchant Agreement is an exhibit (by “click through” agreement or otherwise), Sub-merchant has fulfilled this requirement, if and when applicable. However, Acquirer understands that Sub-merchant may have contracted with Constellation Payments to obtain certain processing services and that Constellation Payments may have agreed to be responsible to Sub-merchant for all or part of Sub-merchant’s obligations contained herein.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:

1. Certain Sub-merchant Responsibilities. Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant’s agent (“Agents”) to comply, with the Rules and all Applicable Laws. Sub-merchant may review the VISA, Mastercard, and Discover websites for a copy of the Visa, Mastercard and Discover regulations. The websites are:

https://usa.visa.com/support/consumer/visa-rules.html;
https://www.mastercard.us/content/dam/mccom/global/documents/mastercard-rules.pdf; and
http://www.discovernetwork.com/merchants/.

Without limiting the foregoing, Sub-merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the U.S. Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sub-merchant’s software providers and/or equipment providers.

If so indicated in the Constellation Payments Terms of Service or Application, Sub-merchant may be a limited-acceptance merchant, which means that Sub-merchant has elected to accept only certain Visa and Mastercard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicated the same. Acquirer has no obligation other than those expressly provided under the Rules and Applicable Law as they may relate to limited acceptance. Sub-merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.

Sub-merchant shall only complete sales Transactions produced as the direct result of bona fide sales made by Sub-merchant to Cardholders, and is expressly prohibited from presenting sales Transactions which are produced as a result of sales made by any person or entity other than Sub-merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities.

2. Sub-merchant Prohibitions. Sub-merchant must not i) require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed, ii) add any tax to Transactions, unless Applicable Law expressly requires that a Sub-merchant impose a tax (any tax amount, if allowed, must be included in the Transaction amount and not collected separately), iii) request or use an account number for any purpose other than as payment for its goods or services, iv) disburse funds in the form of travelers checks if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Sub-merchant, v) disburse funds in the form of cash unless Sub-merchant is dispensing funds in the form of travelers checks, vi) submit any Transaction receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to Sub-merchant, irrespective of Cardholder approval, vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt, viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or ix) submit a Transaction that represents collection of a dishonored check. Sub-merchant further agrees that, under no circumstance, will Sub-merchant store Cardholder Data in violation of the Applicable Laws or the Rules including but not limited to the storage of track-2 data. Neither Sub-merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales Transaction.
3. Settlement. Upon receipt of Sub-merchant’s sales data for Card Transactions, Acquirer will process Sub-merchant’s sales data to facilitate the funds transfer between the various Payment Networks and Sub-merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sub-merchant directly to Sub-merchant’s designated demand deposit account (“Sub-merchant-Owned Designated Account”) or, at Sub-merchant’s request, to a third-party check writer’s account. Any dispute regarding the amount of settlement shall be between Constellation Payments and Sub-merchant. Any dispute regarding the receipt of settlement shall be between Acquirer and Sub-merchant. Acquirer will debit the Constellation Payments Reserve for funds owed to Acquirer as a result of the Services provided hereunder, provided that Acquirer may also debit the Sub-merchant-Owned Designated Account for funds owed to Acquirer as a result of the Services provided hereunder. Further, if a Cardholder disputes a Transaction, if a Transaction is charged back for any reason, or if Acquirer reasonably believes a Transaction is unauthorized or otherwise unacceptable, the amount of such Transaction may be charged back and debited from Sub-merchant or the Constellation Payments Reserve.
4. Term and Termination. This Merchant Agreement shall be binding upon Sub-merchant upon Sub-merchant’s acceptance (by “click through” agreement or otherwise). The term of this Merchant Agreement shall begin, and the terms of the Merchant Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Merchant Agreement by issuing a merchant identification number and shall be coterminous with Constellation Payments’ Terms of Service with Sub-merchant.

Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Merchant Agreement without notice if (i) Sub-merchant or Constellation Payments fails to pay any amount to Acquirer when due, (ii) in Acquirer’s opinion, provision of a service to Sub-merchant or Constellation Payments may be a violation of the Rules or any Applicable Laws, (iii) Acquirer believes that Sub-merchant has violated or is likely to violate the Rules or the Applicable Laws, (iv) Acquirer determines Sub-merchant poses a financial or regulatory risk to Acquirer or a Payment Network, (v) Acquirer’s agreement with Constellation Payments  terminates, (vi) any Payment Network deregisters Constellation Payments, (vii) Acquirer ceases to be a Member of the Payment Networks or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Payment Networks.

5. Limits of Liability. Sub-merchant agrees to provide Acquirer, via a communication with Constellation Payments, with written notice of any alleged breach by Acquirer of this Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Sub-merchant and a waiver of any and all rights to dispute such breach.

EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS MERCHANT AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUB-MERCHANT’S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS AGAINST ACQUIRER ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE TERMINATION OF THIS AGREEMENT. In the event that Sub-merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Agreement, Sub-merchant shall proceed against Constellation Payments and not Acquirer, unless otherwise specifically set forth in the Rules. In no event shall Acquirer have any liability to Sub-merchant with respect to this Agreement or the Services. Sub-merchant acknowledges Acquirer is only providing this Agreement to assist in Constellation Payments’ processing relationship with Sub-merchant, that Acquirer is not liable for any action or failure to act by Constellation Payments, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sub-merchant by Constellation Payments. If Constellation Payments is unable to provide its services to Sub-merchant in connection with this Merchant Agreement and Acquirer elects to provide those services, directly, Sub-merchant acknowledges and agrees that the provisions of this Merchant Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Sub-merchant, will govern Acquirer’s relationship with Sub-merchant. If Constellation Payments subsequently provides its services to Sub-merchant in connection with this Agreement, Acquirer will cease to provide such services after receipt of notice from Constellation Payments and this Merchant Agreement will govern Acquirer’s relationship with Sub-merchant.

6. Miscellaneous. This Merchant Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Merchant Agreement may not be assigned by Sub-merchant without the prior written consent of Acquirer. This Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Merchant Agreement is for the benefit of, and may be enforced only by, Acquirer and Sub-merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Merchant Agreement upon notice to Sub-merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Merchant Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Merchant Agreement will be construed as if such provision is not contained in the Merchant Agreement. “Member Bank” as used in this Agreement shall mean a Member of VISA, Mastercard and/or Discover, as applicable, that provides sponsorship services in connection with this Merchant Agreement. As of the commencement of this Agreement, Member Bank shall be Fifth Third Bank, N.A., an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sub-merchant.

Exhibit B

American Express Card Acceptance and Brand Requirements

1. Defined Terms. As used in this Exhibit B, the following capitalized terms have the following respective meanings:

“CardMerchant” means an individual or entity that has entered into an agreement establishing an American Express Card account, or whose name appears on the American Express Card.

“CardMerchant Information” means any information about CardMerchants and transactions, including, but not limited to, transaction data, and CardMerchant name, addresses, American Express Card numbers, and American Express Card Identification Numbers.

“Establishments” means any or all of Merchant and Merchant affiliates’ locations, outlets, websites, online networks, and all other methods for selling goods and services including methods that Merchant adopt in the future.

“Marks” means names, logos service marks, trademarks, trade names, taglines, or other proprietary designs or designations.

“Other Payment Products” means any charge, credit, debit, stored value, prepaid, or smart cards, account access devices, or other payment cards, services, or products other than the American Express Card.

2. American Express Card Acceptance. Merchant must accept the American Express Card as payment for goods and services (other than those goods and services prohibited under Section 7 of the Agreement) sold, or (if applicable) for charitable contributions made, at all of Merchant’s Establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant’s Establishments under this Agreement.
3. Treatment of the American Express Brand. Except as expressly permitted by applicable law, Merchant must not:

• • indicate or imply that Merchant prefers, directly or indirectly, any Other Payment Products over the American Express Card,
  • try to dissuade Cardholders from using the American Express Card,
  • criticize or mischaracterize the American Express Card or any American Express services or programs,
  • try to persuade or prompt Cardholders to use any Other Payment Products or any other method of payment (e.g., payment by check),
  • impose any restrictions, conditions, disadvantages or fees when the American Express Card is accepted that are not imposed equally on all Other Payment Products, except for electronic funds transfer, or cash and check,
  • suggest or require Cardholders to waive their right to dispute any transaction,
  • engage in activities that harm Constellation Payments business or the American Express brand (or both),
  • promote any Other Payment Products (except Merchant’s own private label card that Merchant issues for use solely at Merchant’s Establishments) more actively than Merchant promotes the American Express Card, or
  • convert the currency of the original sale transaction to another currency when requesting authorization or submitting transactions (or both).

4. Treatment of the American Express Brand (US). Merchant may offer discounts or in-kind incentives from Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by applicable law): (i) Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentive to Merchant’s Customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective Customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, Payment Network. The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in the paragraph titled, “Treatment of the American Express Brand”.
5. Treatment of the American Express Marks. Whenever payment methods are communicated to Customers, or when Customers ask what payments are accepted, Merchant must indicate Merchant’s acceptance of the American Express Card and display the American Express Marks as prominently and in the same manner as any Other Payment Products. Merchant must not use the American Express Marks in any way that injures or diminishes the goodwill associated with the Mark, nor in any way (without the prior written consent of American Express) indicate that American Express endorses Merchant’s goods or services. Merchant shall only use the American Express Marks as permitted by the Agreement and shall cease using the American Express Marks upon termination of the Agreement.
6. Treatment of American Express CardMerchant Information. Any and all CardMerchant Information is confidential and the sole property of the American Express Card issuer, American Express or its affiliates. Except as otherwise specified, Merchant must not disclose CardMerchant Information, nor use nor store it, other than to facilitate transactions at Merchant’s Establishments in accordance with the Agreement

Exhibit C

Arbitration Agreement (as to Disputes involving American Express) (U.S.)

In the event that Merchant or Constellation Payments is not able to resolve a “Claim” (as defined in Section 11 below) against American Express, or a claim against Constellation Payments  or any other entity that American Express has a right to join, this Exhibit C (this “Arbitration Agreement”) explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator. If arbitration is elected by any party, neither Merchant nor Constellation Payments nor American Express will have the right to litigate or have a jury trial on that Claim in court. Further, Merchant, Constellation Payments , and American Express will not have the right to participate in a class action or in a representative capacity or in a group of persons alleged to be similarly situated pertaining to any Claim subject to arbitration under this Arbitration Agreement. Arbitration procedures are generally simpler than the rules in court. An arbitrator’s decisions are final and binding, and the arbitrator’s final decision on a Claim generally is enforceable as a court order with very limited review by a court. Other rights Merchant, Constellation Payments, or American Express would have in court may also not be available in arbitration.

1. Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization’s rules in effect when the Claim is filed, except where those rules conflict with this Arbitration Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, if American Express selects the organization and Merchant selects the other within 30 days thereafter or if an arbitrator is appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. 1-16 (FAA). Any arbitration hearing will take place in the federal judicial district where Merchant’s headquarters is located or New York, NY, at Merchant’s election.
2. Limitations on Arbitration. If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be arbitrated on a class or purported representative basis or on behalf of the general public or other persons allegedly similarly situated. The arbitrator’s authority is limited to Claims between Merchant, Constellation Payments, and American Express. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, Constellation Paymentsor American Express and cannot be used in any other case except to enforce the award as between Merchant, Constellation Payments  and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Arbitration Agreement, if any portion of these Limitations on Arbitration is found invalid or unenforceable, then the entire Arbitration Agreement (other than this sentence) will not apply, except that Merchant, Constellation Payments, and American Express do not waive the right to appeal that decision.
3. Previously Filed Claims/No Waiver. Merchant, Constellation Payments, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, Constellation Payments , or American Express may choose to delay enforcing or to not exercise rights under this Arbitration Agreement, including the right to elect to arbitrate a claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the “Honor All Cards,” “non-discrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express Card acceptance agreement, that was filed against American Express prior to the effective date of the Arbitration Agreement to the extent that such claims are not already subject to arbitration pursuant to a prior agreement between Merchant and American Express.
4. Arbitrator’s Authority. The arbitrator will have the power and authority to award any relief that would have been available in court and that is authorized under this Arbitration Agreement. The arbitrator has no power or authority to alter the Agreement or any of its separate provisions, including this Arbitration Agreement.
5. Split Proceedings for Equitable Relief. Merchant, Constellation Payments, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits if necessary to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorneys’ fees and costs to be paid by the party against whom enforcement is ordered.
6. Small Claims. American Express will not elect arbitration for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
7. Governing Law/Arbitration Procedures/Entry of Judgment. This Arbitration Agreement is made pursuant to a Transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of procedure or evidence, provided that any party may ask the arbitrator to expand discovery by making a written request, to which the other parties will have 15 days to respond before the arbitrator rules on the request. If Merchant’s Claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written opinion explaining his/her award. The arbitrator’s decision will be final and binding, except for any rights of appeal provided by the FAA. Judgment on an award rendered by the arbitrator may be entered in any state or federal court in the federal judicial district where Merchant’s headquarters or Merchant’s assets are located.
8. Confidentiality. The arbitration proceeding and all information submitted, relating to or presented in connection with or during the proceeding, shall be deemed confidential information not to be disclosed to any person not a party to the arbitration. All communications, whether written or oral, made in the course of or in connection with the Claim and its resolution, by or on behalf of any party or by the arbitrator or a mediator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding; provided, however, that evidence shall not be rendered inadmissible or non-discoverable solely as a result of its use in the arbitration.
9. Costs of Arbitration Proceedings. Merchant will be responsible for paying Merchant’s share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a claim in court. American Express will be responsible for any additional arbitration fees. At Merchant’s written request, American Express will consider in good faith making a temporary advance of Merchant’s share of any arbitration fees or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
10. Additional Arbitration Awards. If the arbitrator rules in Merchant’s favor against American Express for an amount greater than any final settlement offer American Express made before arbitration, the arbitrator’s award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by Merchant.
11. Definitions. For purposes of this Exhibit C, “Arbitration Agreement (as to Claims involving American Express) (U.S.)” only, (i) American Express includes its affiliates, licensees, predecessors, successors, or assigns, any Customers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) Merchant includes Merchant’s affiliates, licensees, predecessors, successors, or assigns, any Customers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) Claim means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against Constellation Payments or any other entity that American Express has the right to join, including, a Transaction using an American Express product or network or regarding an American Express policy or procedure.

Exhibit D

Glossary

“ACH” means the Automated Clearing House;

“Affiliate” means, with respect to any party, any corporation, company, partnership or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party.  For the purposes of this definition, control shall mean ownership of half or more of the voting interests in an entity;

“American Express” means American Express Travel Related Services Company, Inc.;

“Applicable Laws” means the following to the extent they govern or otherwise affect the activities of or are applicable to Constellation Payments, Processor, or Merchant: all federal, state and local laws, statutes, codes, ordinances, decrees, rules, regulations, bylaws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, and general principles of common and civil law, including, without limitation, all privacy laws, consumer credit and consumer protection laws, and anti-money laundering laws; the terms and conditions of any grant of approval, permission, authority or license of any governmental authority;  Constellation Payments’ and Processor’s policies and procedures; all as amended, supplemented or replaced from time to time;

“Application” means an electronic of paper form completed by the Merchant in relation to procuring the Services which shall form a part hereof and constitute representations by the Merchant hereunder;

“Association” means Visa, Mastercard, Discover, American Express and such other payment networks as Constellation Payments indicates are compatible with the Services

“Authorization” means a computerized function or a direct phone call (Voice Authorization) to a designated number to examine individual Transactions for the purpose of obtaining approval from the Card Issuer to charge or debit the Card, as the case may be, for the amount of the sale;

“Bank” means a member of a Payment Network that has sponsored Constellation Payments as a payment services provider, payment facilitator or otherwise to supply the Services and that acquires Card Transaction funds through Payment Networks which, as of the commencement of this Agreement, is Fifth Third Bank, N.A., an Ohio Banking Corporation, located in Cincinnati, OH 45263. Bank may be changed, and its rights and obligations assigned to another party at any time without notice to Sub-merchant. For purposes of this Agreement, Bank shall also include Processor;

“Card” means a payment card or account number issued by a Payment Network member to a Cardholder pursuant to a valid agreement between the Cardholder and the Issuing Bank;

“Cardholder” means the Person whose name is embossed upon the face of a Card, or other authorized users of a Card;

“Cardholder Data” means information associated with a Card, such as account number, expiration date, and CVV2;

“CNP” means that an Imprint of the Card is not obtained at the POS Device because the Card sale occurs as a result of a mail, telephone or internet order;

“Customer” means a Person that procures or seeks to procure Product from Merchant;

“Deposit Account” means a deposit account of Merchant at a financial institution in the U.S. identified by Merchant for use in conjunction with this Agreement through the Site or the Application;

“Discover” shall mean Discover Financial Services, LLC;

“Fees” means the fees of Constellation Payments for which Merchant is liable in exchange for the Services as well as the Early Termination Fee;

“Issuing Bank” means a member of a Payment Network that issues Payment Network-branded Cards to Cardholders pursuant to the Rules;

“Mastercard” means Mastercard International Inc.;

“Merchant Relationship” means the commercial or legal relationship between Merchant and its Customer by which Merchant supplies Product to Customer giving rise to the Transaction;

“PA DSS” means the Payment Application Data Security Standards;

“Payment Network” means Visa, Mastercard, Discover, American Express and such other payment networks as Constellation Payments indicates are compatible with the Services;

“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity;

“POS Device” means terminal, software or other point-of-sale device at a Merchant location that conforms to the requirements established from time to time by Constellation Payments and the Rules;

“Processor” means WorldPay LLC, a payment processor that has contracted with Constellation Payments to assist Constellation Payments in delivering the Services, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384;

“Product” means any product or service offered for sale or sold by Merchant;

“Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following: adult entertainment and/or adult content websites including electronic commerce adult content (videotext) merchants that would include MCCs 5967, 7273 and 7841; buyer clubs/membership clubs; direct marketing continuity or subscription services or merchants including MCC 5968 and 5969; direct marketing travel related arrangement services including MCC 5962; direct marketing inbound telemarketing including videotext services and MCC 5967; gambling activities and establishments including MCC 7995, including lotteries, internet gaming, daily fantasy sports, contests, sweepstakes, “special incentives” or offering of prizes as an inducement to purchase goods or services;  informercial sales; internet pharmacies; multi-level marketing (MLM); outbound telemarketers and telecom businesses including MCCs 4814, 4816, and 5966; payment facilitators; rebate-based businesses; up-sell merchants; merchants that accept a card at a scrip-dispensing terminal; airlines including charter airlines; bestiality; bidding fee auctions including penny auctions; brand or reputational damaging, potential or otherwise, activities including bestiality, child pornography, escort services, mail order brides, the occult; collection agencies; commodity trading; security trading; credit counseling or credit repair services; cruise lines; currency exchanges or dealers; debt elimination, debt reduction or debt consulting services; digital wallet or prepaid companies; discount buying memberships/clubs; discount medical or dental plans including discount insurance; discount coupon merchants or online sites; distressed property sales and/or marketing; drug paraphernalia; e-cigarettes; firearms and weapons including ammunition; high interest rate non-bank consumer lending including, but not limited to, payday lending and title loans; investment or “get rich quick” merchants, businesses programs; marijuana dispensaries and related products or services; money transfers, wire transfers, money orders, transmitters, and check cashing including merchants required to be registered as money services businesses; “negative option” marketing, renewal, or continuity subscription practices; marketing activities involving low-dollar trials, “pay only for shipping”, and/or “free trial” periods after which a card is charged periodically and/or in significantly larger amount; pawn shop; prepaid phone cards; prepaid phone services; pseudo pharmaceuticals; quasi cash or stored value; real estate flipping; sales of mobile minutes; selling or sales of social media activity; sports forecasting or odds making; substances designed to mimic illegal drugs; timeshares including resales and related marketing; transacting virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world; any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more card brands; any merchant selling goods or services that represent a violation of any law, statute or regulation; any merchant operating outside the United States; any merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder, including those businesses that may otherwise qualify themselves as a payment service company or payment facilitator; any merchant selling products that infringe on the intellectual property rights of others, including counterfeit goods or any product or service that infringes on the copyright, trademark or trade secrets of any third party; any merchants accepting a card as a payment for a dishonored check or for an  item deemed uncollectible by another merchant; loan payments conducted on a Visa branded credit card;

“Rules” means the by-laws, organizational documents, operating requirements and all other rules, codes of conduct, best practices, policies, procedures, bulletins, manuals, guides, announcements, standards, and industry guidelines of the Payment Networks or a Card Issuer including, without limitation, PCI DSS, PA DSS, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, any other program or requirement that may be published and/or mandated by the Payment Networks, Card Issuers, and all other applicable rules, regulations and requirements of Processor, Bank, Constellation Payments, providers, banks, institutions, organizations, associations, or networks which govern or affect any Services provided under this Agreement including those of the National Automated Clearing House Association  (“NACHA”), as may be amended, supplemented or replaced from time to time; 

“Site” means www.______________________;

“Third Party Servicer” means a third party that provides a product or service that Merchant wishes to procure which product or service may or may not be compatible or integrated with the Services;

“Transaction” means an action between Merchant and a Cardholder related to payment for Product using a Card that results in actual or attempted activity on the Cardholder’s account (e.g., payment, purchase, refund, or return) hereunder regardless of whether the activity arises from a Card present or CNP interaction;

“Transaction Record” means the paper form, whether electronically or manually imprinted, evidencing a Transaction; and

“Visa” means Visa U.S.A., Inc., Visa International;

DataCap Terms of Use

https://datacapsystems.com/terms-of-use