This CARD PROCESSING APPLICATION AND AGREEMENT (“Agreement”) is made between and among “Supplier” named below, BOOST PAYMENT SOLUTIONS, Inc. (“Boost”) and Fifth Third Bank (“Sponsor Bank”). Boost, as a registered Payment Facilitator of the Sponsor Bank, will provide Supplier with certain acquiring and payment processing services (“Services”) in accordance with the terms of this Agreement. In consideration of Supplier’s receipt of credit or prepaid card payments, and participation in programs affiliated with MasterCard International Inc. (“MasterCard”), Visa Inc. (“Visa”) or American Express (“Amex”), Supplier is required to unconditionally comply with the MasterCard Operating Regulations, which are available at www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html, the Visa Operating Regulations, which are available at https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf and the Amex Operating Regulations, which are available at https://www209.americanexpress.com/merchant/services/en_US/merchant-regulations, (collectively “Operating Regulations”).
This Agreement is entered into, governed by, and construed pursuant to the laws of the State of New York without regard to conflicts of law provisions. Supplier agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Supplier 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), the USA Patriot Act (or similar law, rule or regulation), and the Federal Trade Commission. Supplier shall be responsible for all chargebacks, fees, and related costs or adjustments associated with the transactions submitted by Boost for processing on Supplier’s behalf and/or settled directly to Supplier’s depository account, and Boost shall have the absolute right to hold and/or debit Supplier’s settlement funds or settlement account in the aggregate amount of each chargeback plus associated fees, costs and adjustments. Supplier agrees that any and all deposits will be deposited directly into the bank account associated with the voided check or bank letter which Supplier provides pursuant to the Agreement. Furthermore, Supplier agrees that, in the event it has access to card data, it shall comply with the provisions of the Cardholder Information Security Program (CISP) and PCI DSS. Boost may terminate this Agreement, at its sole discretion, and without notice, if (1) Supplier has failed to pay any amount owed to Boost when due, (2) Boost believes, in its sole discretion, that the provision of Services to Supplier may be in violation of the Operating Regulations or the Laws, or (3) Boost believes, in its sole discretion, that Supplier has violated, or is likely to violate, the Operating Regulations or the Laws. Notwithstanding the foregoing, the term of this agreement shall be for three years from the date hereof and shall automatically renew for consecutive twelve month periods unless terminated by Boost pursuant to its terminations rights herein. In addition, Supplier agrees that it will not: (1) knowingly submit any transactions that are illegal or that the Supplier should have known are illegal; (2) establish maximum transaction amounts unless the Supplier is (i) a department, agency or instrumentality of, or owned or controlled by the U.S. Government or (ii) a college, university, business school or trade/vocational school; (3) submit a transaction on behalf of another entity or submit a transaction that does not represent a payment between the Supplier and its customer; (4) submit a transaction to collect or finance an existing debt; (5) submit a transaction that represents the collection of a previously dishonored check.
Supplier shall indemnify, defend and hold harmless Boost and its affiliates, including its employees, officers, directors, agents, and contractors (“Boost Indemnitees”), from and against any fine, penalty, loss, cost, damage, injury, claim, action, expense, including reasonable attorneys’ fees, or other liabilities actually incurred by Boost Indemnitees which is not covered by insurance (“Liabilities”), arising from or attributable in whole or in part to inaccurate, incomplete, inaccessible, tardy or unauthorized payment instructions or other data delivered by Supplier or its customer (cardholder) to Boost for the processing of transactions, which inaccurate, incomplete, inaccessible, tardy or unauthorized information/data gives rise to a claim or loss by Supplier and/or such customer. This paragraph/indemnity shall survive the termination of this Agreement. Supplier shall keep Boost Indemnitees fully informed of any such defense and afford Boost, at its own expense, an opportunity to participate in the defense or settlement of such Liabilities, and in no event shall Supplier agree to any settlement of any claim asserted against any of Boost Indemnitees which has relief against any Boost Indemnitees without Boost Indemnitees’ knowledge and approval.
By signing where indicated below, Supplier and its authorized signatory hereby represent, certify and acknowledge that 1) all information provided and all statements made in this Agreement are true, complete, and accurate; 2) Supplier’s authorized officer is authorized to enter into this Agreement on behalf of Supplier; 3) Supplier agrees to accept card payments from those commercial customers that wish to pay via a commercial card utilizing Boost. Please notify Boost if you require different depository and/or remittance notification information. 4) Supplier has accessed and read the Operating Regulations; and 5) the Operating Regulations are hereby incorporated into this Agreement by this reference.
SUPPLIER HEREBY AGREES TO PAY ALL APPLICABLE PROCESSING FEES
AT THE TIME EACH TRANSACTION IS SETTLED, INCLUDING:
A) FOR MASTERCARD AND VISA TRANSACTIONS, INTERCHANGE PLUS .54% AND
B) FOR AMEX TRANSACTIONS, THE DISCOUNT, FEES AND ASSESSMENTS ESTABLISHED BY AMEX, PLUS .25%
IN WITNESS WHEREOF, this Agreement has been executed by Supplier’s authorized officer as of the date set forth below.