HomeMy WebLinkAboutContractRev. 10/6/2022 pg. 1
SUB-MERCHANT
PAYMENT PROCESSING AGREEMENT
This Sub-Merchant Payment Processing Agreement ("Agreement") is entered into by and
between Fullsteam Operations LLC with its principal office at 540 Devall Drive, Suite 301,
Auburn, AL 36832 (“Provider”) and sub-merchant Maplewood Golf Course with its principal
office at 4050 Maple Valley Highway, Renton, WA 98058 (“Sub-merchant”), in connection with
Provider’s payment processor (“Processor”) and Processor’s designated Member Bank.
Whereas, Provider as a Payment Service Provider (“PSP”) and/or as a Payment Facilitator as
defined in the Operating Regulations, in connection with Processor and/or Member Bank
participates in programs affiliated with MasterCard, VISA, American Express, Discover, and
Other Networks which enable Cardholders, by use of their Cards, to purchase goods and services
from selected merchants located in the United States.
Whereas, Provider wishes to provide payment processing services to Sub-merchant for its
United States locations, for sale of its goods and services to Cardholders by use of their Cards.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS AND
OF THE MUTUAL PROMISES CONTAINED HEREIN, SUB-MERCHANT AND
PROVIDER AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTS,
POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
1.Definitions.
For the purposes of this Agreement, the following terms shall have the following meanings:
Account shall mean an open transaction account at a financial institution acceptable to Processor
which Member Bank, Processor or their agents can access through the ACH system.
Account Change means a change in the Account or the financial institution where the Account is
located.
ACH shall mean the Federal Reserve's Automated Clearing House ("ACH") system.
Agreement means this Sub-Merchant Payment Processing Agreement and each exhibit, schedule,
and addendum attached hereto or referenced to in this Agreement, as well as all documents and
other materials incorporated herein by reference.
American Express shall mean American Express Travel Related Services Company, Inc.
Application shall mean the Sub-merchant’s application for payment processing services as
required by Provider as a prerequisite for obtaining the Services.
Association means VISA, MasterCard, Discover, American Express, or any Other Network, as the
same are defined herein.
Cardholder shall mean any person authorized to use a Card or the accounts established in
connection with a Card.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
CAG-23-296
Rev. 10/6/2022 pg. 2
Cards shall mean MasterCard, VISA, Discover, American Express and Other Network cards,
account numbers assigned to a Cardholder or other methods of payment accepted by Processor on
behalf of Provider, for which pricing is set forth in the Application.
Data Incident shall mean any alleged or actual compromise, unauthorized access, disclosure, theft,
or unauthorized use of Card or Cardholder information, regardless of cause, including without
limitation, a breach of or intrusion into any system, or failure, malfunction, inadequacy, or error
affecting any server, wherever located, or hardware or software of any system, through which Card
information resides, passes through, and/or could have been compromised.
Discover shall mean Discover Financial Services, LLC.
Event of Default shall mean each event listed in Section 7 below.
Float Event shall mean a circumstance where Provider or Processor, for whatever reason, advances
settlement or any amounts and/or delays the assessment of any fees.
Force Majeure Event shall mean, labor disputes, fire, weather or other casualty, power outages,
and funding delays, however caused, governmental orders or regulations, or any other cause,
whether similar or dissimilar to the foregoing, beyond a party’s reasonable control.
Initial Term shall mean a one (1) year period beginning on the date Provider processes the first
transaction for Sub-merchant.
MasterCard shall mean MasterCard International, Inc.
Member Bank shall mean a member of VISA, MasterCard and/or Other Networks, as applicable,
that provides sponsorship services in connection with this Agreement.
Merchant Supplier shall mean a third party other than Processor used by Provider or Sub-merchant
in connection with the Services received hereunder, including but not limited to, Sub-merchant’s
software providers, equipment providers, and/or third party processors.
Operating Regulations means the by-laws, operating regulations and/or all other rules, guidelines,
policies and procedures of VISA, MasterCard, Discover, American Express and/or Other
Networks, and all other applicable rules, regulations and requirements of Processor, Member
Bank, providers, banks, institutions, organizations, associations, or networks which govern or
affect any services provided under this Agreement, and all state and federal laws, rules and
regulations which govern or otherwise affect the activities of Sub-merchant, including, but not
limited to, those of the National Automated Clearing House Association (“NACHA”) and the
Federal Trade Commission (“FTC”), as any or all of the foregoing may be amended and in effect
from time to time.
Other Network shall mean any network or card association other than VISA, MasterCard, Discover
or American Express that is identified in the Application or any subsequent amendment to this
Agreement and in which Sub-merchant participates hereunder.
Payments shall mean payments initiated by Cardholders using a Card or by means of an ACH
transfer.
Payor shall mean any customer of Sub-merchant who authorizes a payment to Sub-merchant.
PCI DSS shall mean the Payment Card Industry Data Security Standard.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 3
Rules Summary means the Bank Card Merchant Rules and Regulations, as amended from time to
time, which are incorporated into this Agreement by reference.
Service shall mean any and all services provided by Processor on behalf of Provider to Sub-
merchant.
Service Delivery Process means Provider/Processor’s then standard methods of communication,
service and support, including but not limited to communication via an online Sub-merchant portal,
email communication, statement notices, other written communications, etc.
Sub-merchant shall mean any entity (including a government agency) that contracts with Provider
as a PSP and/or Payment Facilitator, as permitted in the Operating Regulations, to obtain payment
services.
VISA shall mean VISA USA, Inc.
Website shall mean a website owned and/or provided/controlled by Provider.
2. Services.
2.1 Pursuant to Provider’s agreement with Processor, Processor and/or Member Bank will provide
Sub-merchant with certain payment processing services ("Services") in accordance with the terms
and conditions of this Agreement. Pursuant to the Provider’s agreement with Processor, Provider
has arranged for Processor to acquire, process and settle payment for transactions initiated by Sub-
merchant’s Payors. Such Services shall be made in accordance with the Operating Regulations
using the channels set forth in Sub-merchant’s Application, which includes: credit/debit card
payments and may include electronic check (“eCheck”) payments (collectively “Payments”).
Provider agrees that it will fully comply, and to the extent practicable will assure all Sub-merchants
comply, with any and all confidentiality and security requirements of the USA PATRIOT Act (or
similar law, rule or regulation), VISA, MasterCard, Discover, and/or Other Networks, including
but not limited to PCI, 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. In consideration of Sub-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"), Discover ("Discover"), and certain similar entities
(collectively, "Associations), Sub-merchant is required to comply with the Operating Regulations
(defined below) as they pertain to applicable credit and debit card payments.
3. Sub-merchant Responsibilities.
3.1 Sub-merchant agrees to comply, and to cause third parties acting as Sub-merchant's agents
("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").
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 4
3.2 Sub-merchant may review excerpts from the VISA, MasterCard, American Express and
Discover Operating Regulations online, including via:
https://www.mastercard.us/en-us/business/overview/support/rules.html;
https://usa.visa.com/support/consumer/visa-rules.html;
https://www.americanexpress.com/merchantopguide;
https://www.discoverglobalnetwork.com/content/dam/discover/en_us/dgn/pdfs/MIT-
Implementation-Guide.pdf.
VISA, MasterCard, Discover, American Express, or any other applicable network’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. Sub-
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 VISA, MasterCard, Discover, American Express, or any other applicable
network’s marks, and each transaction acquired hereunder. Sub- 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 VISA, MasterCard,
Discover, American Express, or any other applicable network until such audit is completed.
3.3 Sub-merchant also agrees to comply with all applicable state, federal, and local laws, rules,
and regulations. 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 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, Sub-merchant’s
software providers and/or equipment providers.
3.4 If appropriately indicated in Sub-merchant's agreement with Provider, 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 indicate the same. Provider and Processor have no obligations
other than those expressly provided under the Operating Regulations and applicable law as they
may relate to limited acceptance. Sub-merchant and not Provider or Processor, 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.
3.5 In addition to complying with VISA, MasterCard, Discover, American Express, or any other
applicable network’s obligations or prohibitions related to acceptance, disbursement, or
resubmission of a transaction, Sub-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. Sub-merchant covenants that it is
not a third-party beneficiary under any agreement with VISA, MasterCard, Discover, American
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 5
Express, or any other network, however, VISA, MasterCard, Discover, American Express, or any
other applicable network 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
Sub-merchant.
3.6 Sub-merchant acknowledges and agrees that it is liable for all acts, omissions, customer
disputes, and other customer service-related issues. Sub-merchant acknowledges and agrees that
Provider, Processor and/or its Member Bank may refuse to process transactions for Sub-
merchant’s customers, and Sub-merchant agrees that Sub-merchant, and not Provider or Processor,
shall be responsible for resolving any issues, problems, or disputes pertaining to its customers.
3.7 Sub-merchant agrees to notify Provider, Processor or its Member Bank by a detailed written
communication, of any alleged breach by Provider, Processor or its Member Bank of this
Agreement within thirty (30) days of the date on which the alleged breach first occurred. Failure
to provide notice shall be deemed an acceptance by Sub-merchant and a waiver of all rights
pertaining to the breach.
3.8 Sub-merchant may set a minimum transaction amount to accept a card that provides access
to a credit account, under the following conditions: (i) the minimum transaction amount does not
differentiate between card issuers; (ii) the minimum transaction amount does not differentiate
between MasterCard, Visa, or any other acceptance brand; and (iii) the minimum transaction
amount does not exceed ten dollars (or any higher amount established by the Federal Reserve).
Sub-merchant may set a maximum transaction amount to accept a card that provides access to a
credit account, under the following conditions: Sub-merchant is a (i) department, agency or
instrumentality of the U.S. government; (ii) corporation owned or controlled by the U.S.
government: or iii) Sub-merchant whose primary business is reflected by one of the following
MCCs: 8220, 8244, 8249 -Schools, Trade or Vocational; and the maximum transaction amount
does not differentiate between MasterCard, Visa, or any other acceptance brand.
4. Sub-merchant Prohibitions.
4.1 Sale Transactions.
Sub-merchant agrees that it will not take any of the following Prohibited Actions and it will not
permit any third party under its control to take the following actions in any situation where it has
knowledge of such actions:
(i) That adds any surcharge to the transaction, except to the extent authorized by the Operating
Regulations or applicable law.
(ii) That adds any tax to the transaction, unless applicable law expressly allows for the Sub-
merchant to impose a tax. Any tax amount, if allowed, must be included in the transaction
amount and not collected separately.
(iii) That represents the refinancing or transfer of an existing Cardholder obligation that is
deemed to be uncollectible or arises from the dishonor of a Cardholder’s personal check
or from the acceptance of a Card at a terminal that dispenses scrip.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 6
(iv) That is not a valid transaction between the Sub-merchant and a bona fide Cardholder.
(v) That Sub-merchant knows or should have known to be fraudulent or not authorized by
the Cardholder, or that it knows or should have known to be authorized by a Cardholder
colluding with a third party for a fraudulent purpose.
(vi) That Sub-merchant completes the transaction, and products were not shipped or the
services were not performed, unless the Sub-merchant has obtained Cardholder
consent for a recurring transaction.
(vii) That a valid authorization was required but was not obtained.
(viii) That is a transaction made up of multiple authorizations for amounts less than the total
sale amount.
(ix) That results in a disbursement of cash or cash equivalent to a Cardholder.
(x) That establishes a maximum dollar sale transaction amount, except to the extent
authorized by the Operating Regulations.
4.2 Refund Transactions.
Sub-merchant will not submit any refund transaction to Provider and/or Processor:
(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 sale 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 the Sub-merchant to all its customers.
(iii) For returned products that were acquired in a cash purchase from the Sub-merchant.
(iv) That would cause an overdraft.
(v) More than three (3) business days following either: (i) a regulatory requirement
granting a Cardholder’s right to a refund; or (ii) a non-disputed Cardholder request.
4.3 Other Prohibited Activities.
Sub-merchant will not:
(i) Use any Cardholder data or other transaction data received from a payor for any purpose
not authorized by this Agreement.
(ii) Disclose any Cardholder data or other transaction data to any entity except for necessary
disclosures to affected Cardholders and Provider and through Processor to affected
Association entities.
(iii) Provide to Processor any inaccurate, incomplete, or misleading information.
(iv) Transfer or attempt to transfer, its financial liability by asking or requiring Cardholders
to waive their dispute rights.
(v) Submit transactions on behalf of another entity that the Associations would consider a
sub-ISO, Payment Service Sub-merchant (PSP), Payment Facilitator, or other third party
payment Sub-merchant.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 7
5. Authorization, Fees and Payment.
5.1 Sub-merchant will maintain a commercial transaction account (“Account”) with a financial
institution for the crediting and debiting of all payments and fees.Sub-merchant hereby authorizes
Provider to facilitate the debiting and crediting of the bank account entered in its Application
(“Account”), for purposes of depositing Payments to Sub-merchant’s Account, debiting from Sub-
merchant’s Account any chargebacks, refunds, or reversals, and debiting any payment network
fees, including, but not limited to, dues, fees, assessments or other amounts due Provider, and such
authority shall remain in effect for a period of one (1) calendar year following the date of
termination of this Agreement. Sub-merchant shall always maintain the Account with sufficient
cleared funds to meet its obligations under this Agreement. Sub-merchant agrees to maintain this
Account information up-to-date with Provider at all times. Failure to do so may result in Payments
being misdirected, withheld, or returned to its Payors. Provider shall in no event be liable for any
damages directly or indirectly resulting from incorrect Account information.
5.2 Sub-merchant authorizes Provider to conduct checks of Sub-merchant’s background, credit,
or banking information, as necessary, and agrees that all information obtained under this
Agreement may be shared with VISA, MasterCard, Discover, American Express, or any other
applicable network. Sub-merchant acknowledges and agrees that it is responsible for its
employees’ actions, it will notify Provider of any 3rd party that will have access to cardholder
data, and it will immediately report all instances of a data breach to Provider immediately after it
reasonably identifies an incident. Sub-merchant also authorizes any person or credit reporting
agency to compile information to answer those inquires of Provider and to furnish all requested
information to Provider.
6. Reserve Account Upon Mutual Agreement; Right of Setoff.
6.1 Provider may upon mutual agreement with Sub-merchant, make one or more deductions or
offsets to any payments otherwise due to Sub-merchant to fund the Reserve Account in an amount
satisfactory to Provider based upon a reasonably anticipated risk of loss to Provider, Processor
and/or Member Bank. To secure Sub-merchant’s obligations to Provider, Processor and/or
Member Bank under this Agreement, Sub-merchant grants to Provider, Processor and/or Member
Bank a lien and security interest in and to (i) any such Reserve Account, and (ii) any of Sub-
merchant’s funds pertaining to the Card transactions contemplated by this Agreement now or
hereafter in Provider, Processor and/or Member Bank’s possession, whether now or hereafter due
or to become due to Sub-merchant. In addition, in the event of termination of this Agreement by
either Provider or Sub-merchant, an immediate Reserve Account, if not already established, may
be established by Provider and the Reserve Account will be held by Provider for six (6) months
after termination of this Agreement or for such longer time as Provider may, in its sole discretion,
deem necessary based upon Sub-merchant’s liability to Provider, Processor and/or Member Bank
arising prior to or after termination of this Agreement, and Provider may deposit into and retain in
the Reserve Account any and all amounts otherwise payable to Sub-merchant. Sub-merchant’s
funds held in a Reserve Account may be held in a commingled account for the reserve funds
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 8
(“Reserve Funds Account”) of Provider’s Sub-merchants, without involvement of an independent
escrow agent. Sub-merchant agrees that it shall have no right, title or interest in or to the Reserve
Funds Account. In addition to any rights now or hereafter granted under applicable law, and not
by way of limitation of any such rights, Provider, Processor and/or Member Bank are hereby
authorized by Sub-merchant at any time, without notice or demand to Sub-merchant or to any other
person (and such notice and demand being hereby expressly waived), to set off, recoup and to
appropriate and to apply any and all funds held in a Reserve Account established hereunder against
and on account of obligations owed to Provider, Processor and/or Member Bank by Sub-merchant,
whether such obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured.
Sub-merchant agrees to duly execute and deliver to Provider, Processor and/or Member Bank, as
applicable, such instruments and documents as may reasonably be requested to perfect and confirm
the lien or security interest set forth in this Agreement. The right of setoff shall be deemed to have
been exercised immediately upon the occurrence of Sub-merchant’s default under this Agreement
without any action by Provider or notation in Provider’s records, although Provider may thereafter
enter such set off in its books and records. Any amount of Sub-merchant’s Reserve Account
remaining in the Reserve Funds Account when Provider determines that the Reserve Account may
be closed, shall be released to Sub-merchant.
7. Default.
The following events shall be considered an "Event of Default":
(i) Sub-merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency,
reorganization or liquidation proceeding, a receiver is appointed for Sub-merchant, or
(ii) Sub-merchant makes an assignment for the benefit of creditors, or admits its inability to
pay its debts as they become due; or
(iii) Sub-merchant fails to pay or reimburse the fees, expenses or charges referenced herein
when they become due; or
(iv) Sub-merchant violates the Operating Regulations or applicable law; or
(v) Sub-merchant is subject to any adverse legal or regulatory actions by governmental or
non-governmental entities; or
(vi) Sub-merchant fails to remediate and resolve risks identified by Provider in a timely
fashion; or
(vii) Provider reasonably believes that there has been a material deterioration in Sub-
merchant's financial condition; or
(viii) Any standby letter of credit, if and as may be required, will be cancelled, will not be
renewed, or is not in full force and effect; or
(ix) Sub-merchant ceases to do business as a going concern, or there is a change in ownership
of Sub-merchant which changes the identity of any person or entity having,
directly or indirectly, more than 25% of either the legal or beneficial ownership of Sub-
merchant; or
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 9
(x) Sub-merchant is otherwise in default of any terms or conditions of this Agreement whether
by reason of its own action or inaction or that of another, and fails to cure such default
within thirty (30) days of Provider’s notice of default.
Upon the occurrence of an Event of Default, Provider may at any time thereafter terminate this
Agreement by giving Sub-merchant written notice thereof, and all amounts owed to Provider shall
be immediately due and payable with no further notice.
8 Term and Termination.
8.1 The term of this Agreement shall begin, and the terms of the Agreement shall be deemed
accepted and binding the date Provider processes the first transaction for Sub-merchant and shall
continue for the Initial Term. Except as hereafter provided, unless either party gives written notice
to the other party at least ninety (90) days prior to the expiration of any term, the Agreement shall
be automatically extended for additional periods equal to the Initial Term.
8.2 Notwithstanding the foregoing, Provider may immediately cease providing Services and/or
terminate this Agreement for cause, without notice if:
(i) Sub-merchant fails to pay any amount to Provider or Processor when due; or
(ii) Provider has received a request from Processor, Member Bank, or the Associations to
terminate this Agreement; or
(iii) Provider believes that the provision of a service to Sub-merchant may be a violation of
the Operating Regulations or applicable law or regulation; or
(iv) Provider believes that Sub-merchant has violated or is likely to violate the Operating
Regulations or applicable law or regulation; or
(v) Provider believes that Sub-merchant poses a financial or regulatory risk to Provider,
Processor, Member Bank or an Association.
8.3 If Sub-merchant is terminated for cause, including but not limited to the reasons in Section
8.2 above, Provider may report Sub-merchant’s business name and the names and other
identification of its principals to the Terminated Merchant File. Sub-merchant expressly agrees
and consents to such reporting, and Provider shall have no liability to Sub-merchant for any loss,
expense or damage directly or indirectly sustained by Sub-merchant due to such reporting.
9. Indemnification.
9.1 Sub-merchant shall indemnify, defend, and hold harmless Provider, and its directors, officers,
employees, affiliates and agents from and against all proceedings, claims, losses, damages,
demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees
and expenses and all reasonable collection costs, incurred by Provider, Processor and/or Member
Bank, its directors, officers, employees, affiliates and agents resulting from or arising out of the
Services in this Agreement, Sub-merchant’s processing activities, the business of Sub-merchant
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 10
or its customers, any sales transaction acquired by Provider, Processor or Member Bank, any
noncompliance with the Operating Regulations (or any rules or regulations promulgated by or in
conjunction with the Associations) by Sub-merchant, or its agents (including any Merchant
Supplier), any issue, problems, or disputes between Sub-merchant and its customers, any Data
Incident, any infiltration, hack, breach, or violation of the processing system of Sub-merchant,
Merchant Supplier, or any other third party processor or system, or by reason of any breach or
nonperformance of any provision of this Agreement, on the part of the Sub-merchant, or its
employees, agents, Merchant Suppliers or customers.
10. Limit of Liability; Force Majeure.
10.1 EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT,
PROVIDER, PROCESSOR AND MEMBER BANK DISCLAIM ALL WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUB-MERCHANT
HEREBY ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE
ACCEPTANCE OF CARDS AND SUB-MERCHANT HEREBY ASSUMES ALL SUCH RISKS
EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN. WITHOUT LIMITING THE
FOREGOING, NO PARTY HERETO SHALL BE LIABLE FOR LOST PROFITS, LOST
BUSINESS OR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (WHETHER OR NOT ARISING OUT OF CIRCUMSTANCES KNOWN OR
FORESEEABLE BY ANY PARTY HERETO) SUFFERED BY ANY PARTY, INCLUDING
BUT NOT LIMITED TO SUB-MERCHANTS, THEIR CUSTOMERS OR ANY THIRD PARTY
IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER. However, nothing in
the foregoing sentence is in any way intended, and shall not be construed, to limit (i) Sub-
merchant’s obligation to pay any payment network fees, including, but not limited to, dues, fees,
assessments or penalties due under this Agreement, including but not limited to those imposed by
telecommunications services providers, VISA, MasterCard and/or Other Networks; or (ii) any
damages due from Sub-merchant related to an early termination of this Agreement; or (iii) any
damages due from Sub-merchant related to the failure by Sub-merchant to exclusively receive the
Services from Provider to the extent required by the Agreement, and/or (iv) Sub-merchant’s
obligation to indemnify Provider pursuant to this Agreement. In no event shall Provider be liable
for any damages or losses that are wholly or partially caused by Sub-merchants or its employees,
agents, or Merchant Suppliers.
10.2 Sub-merchant’s sole and exclusive remedy for any and all claims against Provider, Processor
or its Member Bank arising out of or in any way related to this Agreement or the Services shall be
termination of this Agreement.
10.3 Neither Provider, Processor or its Member Bank shall be deemed to be in default under this
Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of
any Services to the extent resulting, from a Force Majeure Event. Upon such an occurrence,
performance shall be excused until the cause for the delay has been removed and Provider,
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 11
Processor or its Member Bank have had a reasonable time to again provide the Services. No cause
of action, regardless of form, shall be brought by a party hereto more than one (1) year after the
cause of action arose, other than one for the nonpayment of fees and amounts due Provider under
this Agreement. Any restriction on Provider or Processor’s liability under this Agreement shall
apply in the same manner to Member Bank.
11. Security, Data Incidents.
11.1 Sub-merchant will be solely responsible for the security, quality, accuracy, and adequacy of
all transactions and information supplied hereunder, and will establish and maintain adequate audit
controls to monitor the security, quality, maintenance, and delivery of such data. Without limiting
the generality of the foregoing, Sub-merchant represents and warrants to Provider that it has
implemented and will maintain secure systems for maintaining and processing information and for
transmitting information via Provider to Processor. Neither Provider, Processor or Member Bank
shall have any liability whatsoever for the security or availability of any communications
connection used in connection with the Services provided hereunder. Sub-merchant acknowledges
that Provider and Processor are responsible, respectively, only for the security of their own
proprietary systems, and not for the systems of any third party, including without limitation any
Merchant Supplier. Sub-merchant shall notify Provider immediately if Sub-merchant becomes
aware of, or suspects a Data Incident. Sub-merchant agrees to fully cooperate with Provider,
Processor and any Association with respect to any investigation and/or additional requirements
related to a suspected Data Incident.
11.2 In the event that Sub-merchant receives such Card or other personal information in
connection with the processing services provided under this Agreement, Sub-merchant agrees that
it will not use it for any fraudulent purpose or in violation of any Card Organization Rules,
including but not limited to Payment Card Industry Data Security Standards (“PCI DSS”) or
applicable laws or regulations. Sub-merchant must ensure compliance by itself and any third party
service provider utilized by Sub-merchant, with all security standards and guidelines that are
applicable to Sub-merchant and published from time to time, including without limitation those
published by Visa, MasterCard or any other Card Organization, and including, without limitation,
the Visa U.S.A. Cardholder Information Security Program (“CISP”), the MasterCard Site Data
Protection (“SDP”), and (where applicable), the PCI Security Standards Council, Visa, and
MasterCard PA-DSS (“Payment Application Data Security Standards”) (collectively, the
"Security Guidelines"). Provider will not be responsible for unauthorized use or access of Sub-
merchant’s customers’ personal information or financial data, Sub-merchant’s employees, or any
other party associated with Sub-merchant, except to the extent such use or access is due to
Provider’s gross negligence or willful misconduct. Sub-merchant may not use any Card
information other than for the sole purpose of completing the transaction authorized by the Payor
for which the information was provided to Sub-merchant, or as specifically allowed by Card
Organization Rules, Operating Regulations, or as required by applicable law. Provider may use
any and all information gathered in the performance of the Services in accordance with its Privacy
Policy. In addition, Sub-merchant agrees that Provider may use such information for any lawful
purpose, including marketing and advertising.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 12
12. Investigations.
Sub-merchant will promptly notify Provider in the event Sub-merchant becomes aware of any
unusual or suspicious activity regarding its customers and will cooperate with Provider, Processor,
Member Bank and the Associations, as applicable, in connection with any investigation of the
customer’s background or activity.
13. Electronic Check (“eCheck”) Services.
13.1 In the event that Sub-merchant, pursuant to its Application, receives eCheck services from
Processor, the terms and conditions of this Section 13 will apply in addition to all other terms and
conditions of the Agreement. The terms of this Section 13 do not modify Sub-merchant’s due
diligence obligations, including, without limitation, Sub-merchant’s responsibility to satisfy all
applicable anti-money laundering (AML) laws and regulations. Without limiting the generality of
any other provision of the Agreement, Sub-merchant shall comply with Processor’s and Member
Bank’s security procedures and any other requirements, including data retention and record-
keeping requirements.
13.2 Sub-merchant will maintain a commercial transaction account (“Account”) with a financial
institution for the crediting and debiting of all payments and fees. Sub-merchant authorizes
Processor and Member Bank to initiate and make transfers to and from the Account as
contemplated by this Agreement. Any deficit in the Account shall be paid by Sub-merchant into
the Account or as may be requested, directly to Processor or Member Bank to cover any deficit.
Sub-merchant agrees to reimburse Provider, on demand, for any losses incurred as a result of
insufficient funds in the Account. Provider will instruct Sub-merchant as to what data may be
required by Provider to monitor the activity relative to the Account including any transfers to and
from the Account.
13.3 During the term of this Agreement and for no less than one (1) year thereafter, Sub-merchant
will maintain a positive balance in the Account, as defined in the Agreement at all times sufficient
to accommodate all funding required by this Agreement. If at any time a deficit balance exists in
the Account, Provider shall give Sub-merchant written notice of such deficit and Sub-merchant
shall have two (2) business days to cure such deficit. Without limiting Sub-merchant’s obligation
to fund the Account as outlined in the first sentence of this Section, Provider reserves the right to
require that Sub-merchant maintain a minimum balance in the Account in an amount to be
reasonably determined by Provider. Any fees, interest expenses or other expenses with respect to
the Account will be the sole responsibility of Sub-merchant and will be paid directly by Sub-
merchant. If Processor or Provider incurs any fees, interest expenses or other expenses with
respect to funding any deficit in the Account, such amount shall be reimbursed by Sub-merchant,
on demand by Provider. If Provider has required the establishment of a Reserve Account, Provider
may, pursuant to Section 6 of this Agreement, offset such amount against the Reserve Account.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 13
13.4 Processor has established a partitioned credit limit for eCheck transactions. In the event
Sub-merchant receives eCheck Services from Processor, Processor may limit Sub-merchant’s
eCheck activity under this Agreement to maintain such limit. Sub-merchant acknowledges and
agrees that Processor may at any time restrict the amount or type of transactions Processor, in its
sole discretion, will accept. Processor and/or Member Bank may reject any ACH entry (“Entry”)
which does not comply with the requirements of this Agreement, the NACHA Operating Rules
(“NACHA Rules”), applicable law or Member Bank’s or Processor’s requirements and
specifications. Sub-merchant has no right to cancel or amend any Entry after its receipt by
Processor or Member Bank. Sub-merchant agrees to be bound by the NACHA Rules and is
responsible for payment for an Entry even if the Entry is erroneous or is a duplicate Entry. Sub-
merchant agrees not to initiate any Entry or other transaction in violation of applicable United
States law.
13.5 Sub-merchant (“Originator”) must obtain the authorization of the applicable individual,
corporation or other entity (“Receiver”) to initiate a credit or debit Entry to the Receiver’s account
This authorization must be incompliance with applicable law and the NACHA Rules. Sub-
merchant will provide Processor with copies of any such authorizations upon request. Sub-
merchant will maintain the original or a copy of each authorization for such period of time as may
be required by the NACHA Rules or applicable law, whichever is longer.
13.6 Sub-merchant acknowledges and agrees that, if an Entry describes the Receiver
inconsistently by name and account number, payment of the Entry transmitted by Member Bank
to the Receiving Depository Financial Institution (“RDFI”) may be made by the RDFI on the basis
of the account number supplied by Sub-merchant, even if it identifies a person different from the
named Receiver, and that Sub-merchant’s obligation to pay the amount of the Entry to Processor
and/or Member Bank is not excused in such circumstances. If Sub-merchant receives a
Notification of Change (“NOC”) Entry or corrected Notification of Change (“Corrected NOC”)
Entry, Sub-merchant shall ensure that changes requested by the NOC or Corrected NOC are made
by, or on behalf of, the individual, corporation or other entity that initiated the entry within six (6)
banking days of Sub-merchant’s receipt of the NOC information or prior to initiating another entry
to the Receiver’s account, whichever is later. Sub-merchant shall retain data on file adequate to
permit remaking of Entries, and shall provide such data to Processor upon its request.
13.7 Each time Sub-merchant transmits an Entry to Processor or Member Bank, Sub-merchant
represents and warrants to Processor and Member Bank the following (i) that the Receiver has
authorized Sub-merchant to transmit Entries to Processor and Member Bank in a manner that
complies with the NACHA Rules, for processing and transmittal by Processor and Member Bank
through the ACH system, which authorization has not been terminated and is in full force and
effect, and Sub-merchant agrees to make payment for any credit Entries originated and for any
debit Entries returned by the RDFI and that (ii) each Entry accurately reflects the entry data
furnished to Sub-merchant and does not violate any agreement between Receiver and Sub-
merchant.
13.8 Without limiting the generality of anything in the Agreement, Sub-merchant will be liable
for, defend, hold harmless, and will indemnify Processor from and against all claims, losses,
liabilities, damages, fines, fees, assessments, expenses (including attorneys’ and collection fees
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 14
and expenses) and other costs resulting from (i) inaccuracies in the Sub-merchants’ bank account
information provided to Processor, (ii) any instructions from Sub-merchant regarding the release
or holding of Sub-merchants’ settlement funds, and/or (iii) any breach by Sub-merchant of its
obligations under the Agreement including this Section 13 or any misrepresentation by Sub-
merchant under this Section 13.
14. Employee Non-Solicit.
Intentionally omitted.
15. Audits.
At any reasonable time upon reasonable notice to Sub-merchant, Sub-merchant shall allow
auditors, including the auditors of any Association or any third party designated by Provider or the
applicable Association, to review the files held and the procedures followed by Sub-merchant at
any or all of Sub-merchant’s offices or places of business. Sub-merchant agrees that the cost of
such audit shall be borne by Sub-merchant if the audit is conducted at the request of an Association
or Member Bank. Sub-merchant will assist such auditors as may be necessary for them to complete
their audit. In the event that a third-party audit is requested by an Association, Member Bank or
regulatory agency, and/or required by the Operating Regulations or applicable law, Provider may,
at its option, and at Sub-merchant’s sole expense, either retain a third party to perform the audit,
or require that Sub-merchant directly retain a specific third party auditor. If Provider requires that
Sub-merchant directly retain the auditor, Sub-merchant shall arrange immediately for such audit
to be performed, and will provide Provider and the Associations with a copy of any final audit
report.
16. Amendment of Agreement or Modification of Services.
Provider may, without prior notice, amend this Agreement or modify the Services, including
without limitation a change to the fees charged for the Services; provided that Provider will provide
Sub-merchant at least thirty (30) calendar days’ prior notice of such changes. Such notice may be
made by means of email or a posting on the Website. Sub-merchant’s continued use of the Services
following notification of any change or amendment to this Agreement or the Services shall be
taken as evidence of its consent and agreement to the modification and/or amendment. Posting
notice of any modification or amendment on the Website shall be deemed adequate notification.
17. Choice of Law; Jurisdiction; Venue.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware without regard to conflicts of law provisions. The parties hereby consent
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 15
and submit to service of process, personal jurisdiction, and venue in the state and federal courts in
the State of Delaware and select such courts as the exclusive forum with respect to any action or
proceeding arising out of or in any way relating to this Agreement, and/or pertaining in any way
to the relationship between Provider and Sub-merchant. PROVIDER AND SUB-MERCHANT
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED
TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR
RELATIONSHIPS CONTEMPLATED HEREBY.
18. Headings and Construction.
The headings used in this Agreement are inserted for convenience only and will not affect the
interpretation of any provision. The parties agree that the terms and conditions of this Agreement
shall not be construed in favor of or against any party by reason of the extent to which any party
or its professional advisors participated in the preparation of this document.
19. Entire Agreement; Parties to the Agreement.
This Agreement constitutes the agreement required by the Payment Facilitator Merchant
Agreement between Provider and its Processor and Processor’s Member Bank. VISA, MasterCard,
Discover, American Express, or any other applicable networks may require that Sub-merchant also
enter into a direct contractual relationship with Processor if Sub-merchant is categorized within
certain MCC codes designated by VISA, MasterCard, Discover, American Express, or any other
applicable network and Sub-merchant’s card transaction volume exceeds $1,000,000 for VISA,
MasterCard, Discover, American Express, or any other applicable network or such other amount
or criteria provided in the Operating Regulations. Where this direct contractual relationship is
required by the Operating Regulations, by agreeing to this Agreement, Sub-merchant agrees to
execute a direct processing agreement with Processor, in the form provided by Provider, and
Provider will provide Processor with a copy of such agreement. Moreover, in the event that this
Agreement is assigned, Sub-merchant may be required to enter into a Direct Processing Agreement
with a processor of the assignee’s choice. Provider and Sub-merchant acknowledge and agree that
Processor and Member Bank are hereby made parties to this Agreement for the purpose noted
above and that upon an assignment of this Agreement a different processor and its member bank
may become parties to this Agreement, and that Processor and Member Bank or processor and its
member bank, as chosen by the assignee, each, as applicable, depending upon whether the
Agreement has been assigned, shall have the right to enforce against Sub-merchant all terms and
conditions of this Agreement, and any future amendments or addenda to which they are a party,
that are set forth therein. This Agreement, its Exhibits and the Direct Processing Agreement, if
applicable, shall constitute the entire agreement between the parties concerning the subject matter
hereof. This Agreement shall not be superseded or replaced by the Direct Processing Agreement.
In the event of a conflict between the terms of this Agreement and the Direct Processing
Agreement, the terms of the Direct Processing Agreement shall control.
20. Authorization.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 16
Each of the parties hereto represents and warrants on behalf of itself that it has full power and
authority to enter into this Agreement; that the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate, limited liability company or
partnership or other appropriate authorizing actions; that the execution, delivery and performance
of this Agreement will not contravene any applicable by-law, corporate charter, operating
agreement, partnership or joint venture agreement, law, regulation, order or judgment; that
execution, delivery and performance of this Agreement will not contravene any provision or
constitute a default under any other agreement, license or contract which such party is bound; and,
that this Agreement is valid and enforceable in accordance with its terms.
21. Assignment & Successors.
Sub-merchant may not assign this Agreement or any of its rights or obligations hereunder without
Provider’s express written consent, and such consent shall not be unreasonably withheld. Provider
may assign this Agreement at its sole discretion. The Agreement will be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto.
22. Miscellaneous.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, transferees and assignees. This Agreement is for the benefit of and may be
enforced only by Provider and Sub-merchant and is not for the benefit of, and may not be enforced
by, any other party. Notwithstanding the foregoing, Provider and Sub-merchant acknowledge and
agree that Processor and Member Bank are hereby made parties to this Agreement for the purpose
set forth in Section 19 above. If any provision of this 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 Agreement will be construed as if such provision is not contained in the 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 Agreement. 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 Processor at any time without notice to Provider or Sub-
merchant.
23. American Express Program Participation.
The following applies only if Sub-merchant participates in the American Express Program,
as controlled by the American Express OptBlue Program Operating Regulations:
1. Sub-merchant must comply with, and accept Cards in accordance with, the terms of this
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 17
Agreement and the American Express Merchant Operating Guide, as such terms may be
amended from time to time.
2. Sub-merchant acknowledges that the American Express Merchant Operating Guide is
incorporated by reference (available here: https://icm.aexp-
static.com/content/dam/gms/en_us/optblue/us-mog.pdf).
3. Sub-merchant expressly authorizes Provider to submit transactions to, and receive settlement
from, American Express on behalf of the Sub-merchant.
4. Sub-merchant expressly consents for (i) Provider to collect and disclose Transaction Data, Sub-
merchant Data, and other information about the Sub-merchant to American Express; and (ii)
American Express to use such information to perform its responsibilities in connection with the
Program, promote the American Express Network, perform analytics and create reports, and for
any other lawful business purposes, including commercial marketing communication purposes
within the parameters of the Program Agreement, and important transactional or relationship
communications from American Express.
5. Sub-merchant may opt-out of marketing messages by notifying Provider, however it will not
preclude them from receiving important transactional or relationship communications from
American Express. 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.
6. Sub-merchant acknowledges and agrees that it may be converted from the OptBlue Program
to a direct Card acceptance relationship with American Express if and when it becomes a High
CV Merchant in accordance with the Operating Regulations. Sub-merchant further agrees that,
upon conversion, (i) Sub-merchant will be bound by American Express' then-current Card
Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by the
Sub-merchant for Card acceptance. Additionally, with respect to commercial marketing
communications from American Express:
□ By checking this box, Sub-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.
7. Sub-merchant acknowledges that American Express may use the information obtained in the
Sub-merchant application at the time of setup to screen, communicate, and/or monitor Sub-
merchant in connection with Card marketing and administrative purposes.
8. Sub-merchant acknowledges that it may not assign to any third party any payments due to it
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 18
under this Agreement, and all indebtedness arising from Charges will be for bona fide sales of
goods and services (or both) at its Establishments and free of liens, claims, and encumbrances other
than ordinary sales taxes; provided, however, that the Sub-merchant may sell and assign future
Transaction receivables to Provider, its affiliated entities and/ or any other cash advance funding
source that partners with Provider or its affiliated entities, without consent of American Express.
9. American Express has third-party beneficiary rights, but not obligations, to this Agreement that
will fully provide American Express with the ability to enforce the terms of the Agreement
against the Sub-merchant.
10. Sub-merchant may opt out of accepting Cards at any time without directly or indirectly
affecting its rights to accept Other Payment Products.
11. Provider may terminate Sub-merchant's right to accept Cards if it breaches any of the
provisions in this Section or the American Express Merchant Operating Guide.
12. Provider has the right to immediately terminate a Sub-merchant for cause or fraudulent or
other activity, or upon American Express' request.
13. Sub-merchant's refund policies for purchases on the Card must be at least as favorable as its
refund policy for purchases on any Other Payment Products, and the refund policy be disclosed
to Cardmembers at the time of purchase and in compliance with Applicable Law.
14. Sub-merchant is prohibited from billing or collecting from any Cardmember for any purchase
or payment on the Card unless Chargeback has been exercised, the Sub-merchant has fully paid
for such Charge, and it otherwise has the right to do so.
15. Sub-merchant shall comply with all Applicable Laws, rules and regulations relating to the
conduct of the Sub-merchant's business.
16. Sub-merchant must comply with the DSR and PCI DSS, each as described in Chapter 15,
"Data Security".
17. Sub-merchant must report all instances of a Data Incident immediately to Provider after
discovery of the incident.
18. Sub-merchant shall cease all use of, and remove American Express Licensed Marks from the
Sub-merchant's website and wherever else they are displayed upon termination of the Agreement
or Sub-merchant's participation in the Program.
19. Sub-merchant shall ensure data quality and that Transaction Data and customer information
is processed promptly, accurately and completely, and complies with the American Express
Technical Specifications.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 19
20. Sub-merchant is responsible for being aware of and adhering to privacy and data protection
laws and provide specific and adequate disclosures to Cardmembers of collection, use, and
processing of personal data.
Maplewood Golf Course Fullsteam Operations LLC
By:
Name:
Title:
Date:
By: _________________
Name: Michael A. Lawler
Title: _CEO___________
Date:
___8/2/2023__________
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Kristi Rowland
8/2/2023 | 12:39 PM PDT
Deputy CAO
Rev. 10/6/2022 pg. 20
EXHIBIT A
SUB-MERCHANT PAYMENT PROCESSING AGREEMENT
HARDWARE AND SUPPORT SERVICES
Hardware means the terminals, printers, readers, and hardware accessories necessary to support
Sub-merchant’s chosen payment processing solution. Sub-merchant may purchase or lease
Hardware from Provider. This Exhibit A is an integral part of the Sub-merchant Payment
Processing Agreement and is incorporated therein by reference.
1. Buy Hardware from Provider. Sub-merchant may, via email or phone, place an order to
Provider to buy certain of its Hardware. Unless otherwise provided in the Hardware’s
documentation, Provider gives a one (1) year warranty, starting on the date of shipment to Sub-
merchant, that the Hardware will be free from errors in workmanship or defects in materials.
Hardware covered by this warranty, as stated above, will be repaired or replaced at no cost
during the one (1) year warranty period, otherwise it may be repaired, if reasonably possible, or
replaced and charged to Sub-merchant. Following the warranty period, at Sub-merchant’s
request, Provider will repair, if reasonably possible, or replace non-functioning Hardware and
charge to Sub-merchant. If Sub-merchant returns Hardware which it bought from Provider
within forty-five (45) days of purchase in original condition and never used, Provider will credit
Sub-merchant the purchase price less a restocking fee of $150. Provider cannot accept Hardware
for credit after 45 days of the date of shipment to Sub-merchant.
2. Lease Hardware from Provider. Sub-merchant may, via email or phone, place an order to
Provider to lease certain Hardware from Provider for a lease term of one (1) year (“Initial
Term”). Except as hereafter provided, unless Sub-merchant gives notice to Provider at least
ninety (90) days prior to the expiration of any Term, the lease shall renew for additional one (1)
year terms (“Renewal Term”) (collectively the “Term”). All Hardware which Provider may lease
to Sub-merchant is the personal property of Provider and may not, under any circumstances, be
considered fixtures. Sub-merchant may not sell, re-lease, encumber, or otherwise dispose of any
Hardware leased from Provider and will keep the leased Hardware free of all liens, claims or
encumbrances whatsoever. The leased Hardware will be replaced or repaired at no charge to
Sub-merchant if the Hardware becomes inoperable through no fault of Sub-merchant, otherwise
the Sub-merchant will be charged for the repairs. If the Hardware is damaged beyond repair, the
Sub-merchant will be charged the current purchase price of the Hardware, minus any lease fees
already paid. If the Sub-merchant requires new hardware, a new lease term or purchase
agreement will be required. In the event that Sub-merchant wishes to return, or exchange
hardware, Sub-merchant will be charged for the remainder of the lease for the returned or
exchanged hardware and a new lease will be required for the new hardware. Sub-merchant must,
within fifteen (15) days of receipt of any replacement Hardware, return the Hardware, which was
replaced, to Provider at Merchant’s expense. If Sub-merchant does not return the replaced
Hardware, or if the Hardware became inoperative because of negligence or willful acts, Sub-
merchant will be charged for the replacement value of the Hardware. If Sub-merchant terminates
the Processing Agreement, which will automatically terminate the lease or terminates only the
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 21
lease prior to the end of its Term, payment for the remainder of the lease Term will be
immediately due and payable to Provider. Upon termination of the lease, Sub-merchant must,
within fifteen (15) days of the termination, return the leased Hardware to Provider at Merchant’s
expense or Merchant will be charged the replacement value of the Hardware.
3. Promotional Lease Hardware from Provider. Should a promotional lease offer be made
available by Provider, Sub-merchant may, via email or phone, place an order for such Hardware
to Provider to lease that certain Hardware from Provider for a lease term of one (1) year (“Initial
Term”). Except as hereafter provided, unless Sub-merchant gives notice to Provider at least
ninety (90) days prior to the expiration of any Term, the lease shall renew for additional one (1)
year terms (“Renewal Term”) (collectively the “Term”). With the exception of a replacement
during the warranty period, as described below, any replacement or substitution of Hardware
outside of the warranty period may be purchased or leased by the Sub-merchant from Provider at
the then current pricing, terms and conditions. All Hardware which Provider may lease to Sub-
merchant under such promotion is the personal property of Provider and may not, under any
circumstances, be considered fixtures. Sub-merchant may not sell, re-lease, encumber, or
otherwise dispose of any interest in any Hardware leased from Provider and will keep the leased
Hardware free of all liens, claims or encumbrances whatsoever. During the manufacturer’s
warranty period only, the leased Hardware will be replaced at no charge to Sub-merchant if the
Hardware becomes inoperable through no fault of Sub-merchant. If the required repairs were
caused by negligence or willful acts, Sub-merchant will be charged for the repairs. Sub-merchant
must, within fifteen (15) days of receipt of any replacement Hardware, return the Hardware,
which was replaced, to Provider at Merchant’s expense. If Sub-merchant does not return the
replaced Hardware, or if the Hardware became inoperative because of negligence or willful acts,
Sub-merchant will be charged for the replacement value of the Hardware. If Sub-merchant
terminates the Processing Agreement, which will automatically terminate the lease or terminates
only the lease prior to the end of its Term, payment for the remainder of the lease Term will be
immediately due and payable to Provider. Upon termination of the lease, Sub-merchant must,
within fifteen (15) days of the termination, return the leased Hardware to Provider at Merchant’s
expense or Merchant will be charged the replacement value of the Hardware.
4. Support Services. Provider’ sole obligation with respect to a warranty claim received by
Provider during the applicable warranty period shall be to repair or replace any malfunctioning
Hardware, which may be with a refurbished product, provided that Sub-merchant has first
utilized Provider’s assistance services and has not resolved the problem. Hardware sent back to
Provider for repair must be repairable for this service. From time to time, services may be
interrupted for system maintenance and, furthermore, may also be interrupted for reasons beyond
the control of Provider. Any extended warranty services, if any, shall be governed by the terms
and conditions of such extended warranty.
5. LIMITATION OF LIABILITY. PROVIDER ACCEPTS NO LIABILITY TO SUB-
MERCHANT FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT OR
EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS,
REVENUES AND BUSINESS OPPORTUNITIES, OR DAMAGES FOR INJURY TO
PERSONS OR PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A
Rev. 10/6/2022 pg. 22
HARDWARE OR SOFTWARE PURCHASED OR LEASED, OR SERVICE OBTAINED
FROM PROVIDER. THE LIABILITIES LIMITED BY THIS SECTION APPLY(i)
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,
STRICT PRODUCT LIABILITY, OR OTHERWISE; (ii) EVEN IF PROVIDER IS
ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION
AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iii) EVEN IF
PROVIDER’S REMEDIES FAIL FOR THEIR ESSENTIAL PURPOSE. IF
APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS
SECTION, PROVIDER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM
EXTENT PERMISSIBLE.
6. LIMITED WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES,
PROVIDER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, BEYOND THOSE STATED HEREIN. PROVIDER
DISCLAIMS ALL WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
PROVIDER DOES NOT WARRANT THAT THE HARDWARE, SERVICE OR
SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE;
AND EXCEPT AS PROVIDED IN THE EXPRESS WARRANTIES IN THIS EXHIBIT A,
THE HARDWARE AND SOFTWARE ARE PROVIDED “AS IS.”
U.S. GOVERNMENT RESTRICTED RIGHTS. The software and documentation are provided
with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial
Computer Software Restricted Rights at 48 CFR 52.22719, as applicable.
EXPORT RESTRICTIONS. Sub-merchant acknowledges that the software acquired hereunder
may include technical data subject to U.S. export control laws and regulations. Sub-merchant
confirms that it will not export or re-export the software, directly or indirectly, either to: (i) any
countries that are subject to U.S. export restrictions, (ii) any end user who Sub-merchant knows
or has reason to know will utilize them in the design, development or production of nuclear,
chemical or biological weapons; or (iii) any end user who has been prohibited from participating
in the U.S. export Transactions by any federal agency of the U.S. government.
DocuSign Envelope ID: 9FD92436-8943-4410-92ED-904C983B7D8A