ADDITIONAL TERMS FOR SPONSORED MERCHANTS
PROCESSING ABOVE BENCHMARK AMOUNT
These Additional Terms for Sponsored Merchants Processing Above Benchmark Amount (“Additional Terms”) are between Elavon Inc. having its principal office at Two Concourse Parkway, Suite 800, Atlanta, GA 30328 and its designated Member Bank (collectively, “Acquirer”), and the Sponsored Merchant bound to these Additional Terms (“Sponsored Merchant”) in connection with the agreement between Sponsored Merchant and Boost Payment Solutions, Inc. (“Provider”). Acquirer will provide Sponsored Merchant with certain payment processing services (“Services”) in accordance with these Additional Terms. In consideration of Sponsored Merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. (“MasterCard”), VISA U.S.A. Inc. (“VISA”), and certain similar entities (collectively, “Associations), Sponsored Merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. Sponsored Merchant agrees that in the event that more than $1,000,000 in Visa transactions or $10,000,000 in Mastercard transactions (or such other amount required by the Operating Regulations) is processed through Sponsored Merchant in any 12-month period (“Benchmark Amount”), Sponsored Merchant will automatically be deemed to have accepted and to be bound by these Additional Terms and to have a direct relationship with Acquirer. Notwithstanding these Additional Terms, Acquirer understands that Sponsored Merchant has contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Sponsored Merchant for all or part of Sponsored Merchant’s obligations contained herein.
- Certain Sponsored Merchant Responsibilities. Sponsored Merchant agrees to comply, and to cause third parties acting as Sponsored Merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations, and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively “Operating Regulations”). Sponsored Merchant may review the VISA and Mastercard websites for a copy of the Visa and Mastercard regulations. The websites are: https://usa.visa.com/support/small-business/regulations-fees.html and http://www.mastercard.com/us/merchant/”>http://www.mastercard.com/us/merchant/. Sponsored Merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Sponsored Merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Sponsored Merchant’s software providers and/or equipment providers.
- Sponsored Merchant Prohibitions. Sponsored Merchant is expressly prohibited from i) receiving card-based sales transactions for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities; ii) accepting a card to collect or refinance an existing debt that has been deemed uncollectable, or iii) accepting a card payment that represents collection of a dishonored check.
- Settlement. Acquirer will process Sponsored Merchant’s sales data to facilitate the funds transfer between the various Associations and Sponsored Merchant. After Acquirer and/or Provider receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Sponsored Merchant for such card transactions. Sponsored Merchant agrees that the deposit of funds shall discharge Acquirer of its settlement obligation to Sponsored Merchant. 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 Sponsored Merchant’s account.
- Term and Termination. These Additional Terms shall be binding upon Sponsored Merchant upon reaching the Benchmark Amount. These Additional Terms shall begin and shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts these Additional Terms by issuing a merchant identification number and shall be coterminous with Provider’s agreement with Sponsored Merchant. Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate these Additional Terms without notice if (i) Sponsored Merchant fails to pay any undisputed amount to Acquirer when due and fails to cure such non-payment within two (2) business days, (ii) in Acquirer’s reasonable opinion, provision of a service to Sponsored Merchant may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Sponsored Merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire determines Sponsored Merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
- Limits of Liability. Sponsored Merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of these Additional Terms, 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 Sponsored Merchant and a waiver of any and all rights to dispute such breach. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THESE ADDITIONAL TERMS, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sponsored 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 these Additional Terms. In the event that Sponsored Merchant has any claim arising in connection with the Services, rights, and/or obligations defined in these Additional Terms, other than Acquirer’s failure to settle funds to the Sponsored Merchant’s designated account, Sponsored Merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Sponsored Merchant with respect to these Additional Terms or the Services, except that Acquirer shall be liable to Sponsored Merchant for its failure to settle funds in accordance with Section 3 of these Additional Terms. Sponsored Merchant acknowledges Acquirer is only providing these Additional Terms to assist in Provider’s processing relationship with Sponsored Merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Sponsored Merchant by Provider.
- Miscellaneous. These Additional Terms are entered into, governed by, and construed pursuant to the laws of the State of New York without regard to conflicts of law provisions. These Additional Terms may not be assigned by Sponsored Merchant without the prior written consent of Acquirer. These Additional Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. These Additional Terms are for the benefit of, and may be enforced only by, Acquirer and Sponsored Merchant, and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend these Additional Terms upon notice to Sponsored Merchant in accordance with Acquirer’s standard operating procedure. If any provision of these Additional Terms is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions, and these Additional Terms will be construed as if such provision is not contained in them. “Member Bank” as used in these Additional Terms shall mean a member of VISA and/or Mastercard, as applicable, that provides sponsorship services in connection with these Additional Terms. As of the commencement of these Additional Terms, Member Bank shall be U.S. Bank, a Minnesota Banking Corporation, located in Minneapolis, MN 55402. The Member Bank is a party to these Additional Terms. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Sponsored Merchant.