GENERAL TERMS AND CONDITIONS FOR MERCHANT CARD PROCESSING SERVICES
ARTICLE 1 – SCOPE OF SERVICES
The following terms of provision of merchant card processing services by merchants (“Merchants”) shall constitute the general terms and conditions (“General Terms and Conditions”) of Multi Service Technology Solutions, Inc. as set forth in the MSA (as defined below) (“MSTS”). Agreements (as defined below) shall constitute binding agreements between MSTS and Merchant, and shall govern all matters relating to the engagement of Merchant to provide card processing services (collectively, the “Card Processing Services”) to MSTS from, or through any arrangement made by, MSTS, at the locations set forth on Schedule 1 of the MSA (as defined below) and for the proprietary cards and other payment mechanisms set forth on Schedule 2 of the MSA (“Cards”). Agreements are effective as of the date Merchant accepts these General Terms and Conditions by signing a Merchant Services Agreement (each, an “MSA”, and with these General Terms and Conditions, each, an “Agreement”). If there is a conflict between these General Terms and Conditions and an MSA (including attachments incorporated by reference into an MSA), the terms and conditions of the MSA shall prevail (together, an “Agreement”). If the terms and conditions of an Agreement and any additional, different or conflicting terms or conditions contained in any acknowledgment, invoice, purchase order or other document relating to the Card Processing Services exists, the terms and conditions of the Agreement shall prevail.
ARTICLE 2 – CARD ACCEPTANCE PROCEDURES
2.1 Merchant shall follow and comply with all Card processing operating procedures, Card regulations or specific policies issued and as amended by the Card issuer or association for each Card (collectively, the “Operating Procedures”), and Merchant agrees that it is solely responsible for monitoring and complying with all Operating Procedures.
2.2 Merchant shall ensure that all invoices submitted for processing must contain only those Card transactions for which a valid authorization from the Card issuer was obtained. Any disputes between the cardholder and the Merchant regarding an invoice remain the sole responsibility of the Merchant to address and resolve, before a final invoice can be submitted to MSTS for processing.
2.3 Any amounts representing purchases not made in strict accordance with any Agreement, including, without limitation, the Operating Procedures, will be rejected by MSTS, and if paid to Merchant and subsequently properly rejected by the cardholder, will be deducted from the next regular (or subsequent) payment due to Merchant or collected in another manner as MSTS may determine. MSTS shall have the right to chargeback any Card transaction to a Merchant at any time without prior notice if MSTS receives a chargeback on a Card transaction..
2.4 Merchant shall not receive any payments from cardholders with respect to charges made on Cards. Merchant shall not submit to MSTS any Card transactions that represent replacement for uncollected funds from other payment methods or that represent bad debt or potential bad debt with regard to the Merchant’s own receivable.
2.5 Merchant is solely responsible for the quality and accuracy of all data provided to MSTS relating to Card Processing Services.
2.6 Invoices must include all details needed to define the products and services purchases
2.7 All invoices must be submitted to MSTS within thirty (30) days of the applicable Card transaction.
ARTICLE 3 – DISCOUNTS AND DIRECT BILL TRANSACTIONS
3.1 Discount Agreements; Re-Pricing. Merchant may during the Term be a party to or become a party to agreements with its customers (“Customers”) relating to product volume requirements, product discounts and other commercial terms (each, a Discount Agreement”) applicable to Customer’s purchases at Merchant locations. Merchant shall give timely written notice to MSTS or any discount or other information contained in any Discount Agreement that is relevant to and/or necessary for the processing of transactions at Merchant locations in accordance with the terms of any such Discount Agreement (“Discount Information”). Within forty-eight (48) hours following the delivery of any such notice, each of Merchant and MSTS shall act in a commercially reasonable manner to process, authorize and settle (if applicable) Card transaction pursuant to the Discount Information. In lieu of providing Discount Information directly to MSTS, Merchant may agree in writing with MSTS to conduct Merchant’s own adjustments to retail pricing pursuant to the Discount Information (“Re-pricing”). In the event the parties agree that Merchant will conduct Re-pricing, Merchant shall send to MSTS, in a form and manner determined solely by MSTS, electronic Re-pricing files for all Customer with Discount Agreements on a daily basis, or in real-time if applicable, to enable MSTS to process and settle (if applicable) transactions.
3.2 Fuel Discounts. Merchant shall offer to MSTS discounts on Customer purchases of fuel made using a Card (each, a “Fuel Discount) in an amount agreed to by the parties in writing, if any, and MSTS shall pass on to the Customer such Fuel Discounts, as applicable, subject to a $0.02 per gallon marketing fee (the “Marketing Fee”) that shall be added to the final amount charged by MSTS to the Customer in each fuel purchase transaction.
3.3 Direct Bill Transactions. Merchant, during the Term, may be or become a party to agreements with Customers pursuant to which Customers are directly billed by Merchant for purchases made with a Card at Merchant locations (“Direct Bill Transactions”). Merchant shall carry the receivable for Direct Bill Transaction, be responsible for all billing and payment and bear all credit risk and risk of loss relating to all uncollected amounts with respect to Direct Bill Transactions. Merchant shall promptly advise MSTS of: (i) a Customer’s designation as a direct bill customer, and (ii) Merchant’s decision to restrict or terminate Customer’s designation as a direct bill customer. Notwithstanding anything to the contrary herein, MSTS shall not be required to provide any services related to Direct Bill Transactions other than the collection and transmission of data related to the Direct Bill Transaction.
ARTICLE 4 – IT, DATA AND CARDHOLDER INFORMATION SECURITY
4.1 Merchant must at all time have proper security measures in place for the protection of cardholder data (including, without limitation, any personally identifiable information or other data that, alone or in combination with other data, can be used to identify a cardholder). Merchant must not retain or store magnetic strip or PIN data after a transaction has been authorized. Merchants are required to notify MSTS immediately of any incident that could potentially compromise cardholder data.
4.2 Merchant agrees to immediately notify MSTS of any suspected, alleged or confirmed actual or potential loss, unauthorized disclosure, theft or compromise of cardholder data or card transaction information (each, a “Compromised Data Event”). Merchant agrees that upon Merchant’s suspected or actual discovery of a Compromised Data Event, Merchant will not alter or destroy any related records. Merchant shall promptly share with MSTS all information related to any actual or suspected Compromised Data Event, including, but not limited to, forensic reports and system audits; and allow MSTS access to Merchant and its Merchant’s facilities and records for the purpose of performing any inspection, examination and/or copying of books pertaining to the affected transactions. MSTS may share such information with others as permitted under Applicable Law. In the event of a suspected Compromised Data Event and/or violation of Applicable Law, Merchant must promptly take appropriate corrective action, subject to MSTS’s approval. MSTS shall be entitled to pass on to Merchant, and Merchant shall be solely responsible for paying, any costs, damages, fees and other liabilities related to any and all Compromised Data Events, including without limitation any costs, damages, fees and other liabilities or issuers or government authorities may assess against MSTS, and/or the costs MSTS incurs for its investigation of the Compromised Data Event, including those associated with examinations and inspections, except to the extent caused by MSTS’s gross negligence or willful misconduct.
4.3 If the Card Processing Services are being performed in Canada, the parties agree that Cardholder Data may include personal information as defined and limited by the Personal Information Protection and Electronic Documents Act (“PIPEDA”) or similar, applicable provincial privacy legislation. Merchant acknowledges that MSTS is and its service provider(s) may be located outside Canada. Merchant represents and warrants that such Cardholder Data may be transferred or processed outside of Canada, including the United States, in accordance with and without violation of PIPEDA or other Applicable Law.
ARTICLE 5 – TERM AND TERMINATION
5.1 Term. Each Agreement shall be for a term of three (3) years beginning on the Effective Date set forth in the applicable MSA. Thereafter, each Agreement will automatically renew for successive one (1) year periods (“Additional Terms”).
5.2 Termination. MSTS may terminate any Agreement with immediate effect in the event of Merchant’s breach of any Agreement subsequent failure to cure such breach within thirty (30) days following written notice of such breach by MSTS to Merchant. Additionally, MSTS shall have the right to immediately terminate all Agreements if Merchant without requirement of notification if Merchant is dissolved or is liquidated; (ii) sells, leases or exchanges all or substantially all of its assets to any other person or entity; or (iii) any person, other than one or more of the persons who hold, beneficially and of record, shares, is or becomes a beneficial owner of Merchant. Upon termination or expiration of an Agreement, (i) all outstanding balances due and owing, plus all amounts billed after termination for Card Processing Services provided prior to such termination, shall be paid in accordance with the terms of the applicable Agreement and (ii) Merchant shall return to MSTS all materials, in its possession provided by MSTS, including but not limited to MSTS customer information and data. Notwithstanding the exercise by any party of its rights under this Section 5.2, no termination of any Agreement shall relieve any of the parties hereto of its liability for the payment or performance of any obligation accrued prior to the effective date of such termination (including any indemnification obligation arising hereunder, whether or not notice of such indemnification claim has been given before such termination).
ARTICLE 6 – PAYMENT AND FEES
6.1 Merchant agrees to the pricing and settlement terms set forth on Schedule 3 attached to the MSA.
6.2 Merchant and MSTS shall enter into an Electronic Funds Transfer Authorization Agreement (in the form attached to the MSA as Exhibit 1), the effectiveness of shall coincide with the term of the applicable Agreement and provide, among other things, that Merchant authorizes MSTS, to initiate debit and/or credit entries with respect to a certain bank account of Merchant.
6.3 MSTS will have the right to offset outstanding amounts owed to Merchant on the Merchant’s Cards accounts against any sums payable to the Merchant by MSTS, or any affiliated companies including its or its parent company subsidiaries and parent company, under any contract, agreement or arrangement.
6.4 On or prior to the execution of this Agreement, Merchant shall complete and deliver to MSTS a fully executed W-9 form – Request for Taxpayers Identification Number and Certification (or, if the Card Processing Services are being performed in Canada, a current Canada Revenue Agency issued GST/HST Registration Confirmation Notice, including assigned business number).
ARTICLE 7 – ADDITIONAL MERCHANT COVENANTS
7.1 Without limiting any other warranties made hereunder, Merchant represents covenants with MSTS and with the submission of each Card transaction reaffirms that:
(a) Each Card transaction is genuine and arises from a bona fide transactions, permissible under Applicable Law, by the cardholder directly with the Merchant for respective merchandise or services sold; and
(b) With respect to each Card transaction, Merchant has no knowledge or notice of any fact, circumstance or defense which would indicate that such card transaction is fraudulent or not authorized by the related cardholder or which would otherwise impair the validity or collectability of that cardholder’s obligation arising from that Card transaction or relieve that cardholder from liability with respect thereto.
7.2 Merchant agrees to work with MSTS and Card issuers to assist with marketing Card products to Customers.
ARTICLE 8 – FORCE MAJEURE
Neither party shall be liable to the other for failure to perform this Agreement where such failure to perform is due to any natural disaster, fire, flood, storm, strike, terrorist event, act of war, labor unrest, acts of God, equipment or power interruption (when not due to the negligence of the non-performing party, its employees and contractors) interruptions in the telephone or Internet systems, failures in third party computer software or hardware or any cause beyond the non-performing party’s reasonable control.
ARTICLE 8 – INDEMNITY; LIMITATIONS ON LIABILITY; NO WARRANTY
8.1 MSTS AND MERCHANT ACKNOWLEDGE AND AGREE THAT EACH AGREEMENT IS NOT INTENDED TO BENEFIT OR CREATE ANY RIGHTS OR CAUSES OF ACTION IN OR ON BEHALF OF ANY PERSON OTHER THAN MSTS AND MERCHANT. IN THAT REGARD, MERCHANT AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS MSTS, ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS AND PERMITTED ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, CLAIMS, COSTS, EXPENSES AND DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF WHATEVER NATURE INCURRED BY ANY SUCH INDEMNITEE AS A RESULT OF (I) THE BREACH OR INACCURACY OF ANY OF MERCHANT’S REPRESENTATIONS OR WARRANTIES HEREUNDER; (II) THE BREACH OF ANY OF MERCHANT’S COVENANTS OR AGREEMENTS HEREUNDER; (III) ANY VIOLATIONS OF APPLICABLE LAW BY MERCHANT OR ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS IN PERFORMING ITS OBLIGATIONS IN CONNECTION WITH ANY AGREEMENT; OR (IV) ANY ACTS OR OMISSION OF MERCHANT OR ANY OF ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS.
8.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OF ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS OR GOODWILL) SUFFERED OR INCURRED BY SUCH OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH ANY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 MERCHANT AGREES THAT NEITHER MSTS, ITS AFFILIATES, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, SUBCONTRACTORS, AGENTS OR EMPLOYEES WILL BE LIABLE TO MERCHANT FOR ANY CLAIMS, LIABILITIES OR EXPENSES RELATING TO THE CARD PROCESSING SERVICES PROVIDED HEREUNDER FOR AN AGGREGATE AMOUNT IN EXCESS OF THE TOTAL FEES PAID BY MERCHANT TO MSTS FOR SUCH SERVICES DURING THE IMMEDIATELY PRECEDING CONTRACT YEAR.
ARTICLE 9 – NO RELIANCE; MSTS NOT SUPPLIER
9.1 MSTS and Merchant each recognize and acknowledge that: (a) it is acting as a principal; (b) the other party is not acting as a fiduciary or financial or investment advisor for it; (c) it is not relying upon any representations (whether written or oral) of the other party other than the representations expressly set forth in an Agreement; (d) it has not been given by the other party (directly or indirectly through any other person) any advice, counsel, assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (either legal, regulatory, tax, financial, accounting, or otherwise) any transaction between the parties; (e) it has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisors to the extent it has deemed necessary, and it has made its own business decisions based upon its own judgment and upon any advice from advisors as it has deemed necessary, and not upon any view expressed by the other party; (f) its decisions have been the result of arm’s length negotiations between the parties; and (g) each have a full understanding of all of the risks associated with the transactions entered into between the parties (economic and otherwise), and it is capable of assuming and willing to assume those risks.
9.2 Merchant acknowledges and agrees that the cardholder is the purchaser of all products and services using a Card pursuant to this Agreement and neither MSTS nor any of its affiliates takes title or risk on any product or service supplied. Merchant acknowledges and agrees that any dispute arising under or about such a purchase is a matter between the Merchant and the cardholder.
ARTICLE 10 – MODIFICATIONS, RENEWALS AND EXTENSIONS
To the extent a term is specified in any Agreement, such term may only be modified, renewed or extended pursuant to a separate written agreement between the parties, and no act or failure to act by either party shall have the effect of modifying, renewing or such agreement.
ARTICLE 11 – CONFIDENTIALITY
Merchant acknowledges that in the performance of the Card Processing Services, Merchant and its employees shall receive or become aware of Confidential Information. “Confidential Information” means any and all information disclosed to Merchant (in whatever form) concerning MSTS or its Affiliates, whenever furnished (which information may include without limitation sales plans and strategies, compensation plans, compensation information, business plans and strategies, MSTS customers and supplier information, MSTS customer’s trip data or other personal information, software and computer programs, market research and data bases, sources of leads and methods of obtaining new business, and methods of purchasing, marketing, selling, performing and pricing products and services employed by MSTS, lists of names and addresses of customers and suppliers of MSTS, information concerning MSTS’s database configuration and architecture, technical data, networks, methods, practices, standards, capacities and deficiencies in MSTS’s development, testing, production or disaster recovery environments). Merchant shall make use of the Confidential Information only for the purpose of providing the Card Processing Services hereunder, and shall not disclose, disseminate or otherwise publish or communicate Confidential Information received hereunder to any person, firm, corporation or other third party without the prior written consent of MSTS. Merchant shall notify MSTS in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of an Agreement, and will cooperate with MSTS in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. MSTS may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Merchant acknowledges and agrees that the covenants contained in all Agreements are necessary for the protection of legitimate business interests of MSTS and its Affiliates and are reasonable in scope and content. Merchant will, at MSTS’s option, return or destroy (and so certify to MSTS) all material embodying Confidential Information (in any form or medium and including, without limitation, all summaries, copies and excerpts of Confidential Information) at any such time as MSTS may so request.
ARTICLE 12 – COMPLIANCE WITH APPLICABLE LAW AND STANDARDS
Each party shall comply with all national and local laws, regulations, ordinances and executive, administrative and judicial orders applicable in performing the Card Processing Services (collectively, “Applicable Law”). Merchant is responsible for demonstrating to MSTS Merchant’s compliance with the requirements of Applicable Law.
ARTICLE 13 – ATTORNEY’S FEES AND JURISDICTION
13.1 Attorneys’ Fees. In the event of any litigation between the parties relating to an Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses (including attorneys’ fees) incurred in connection with such litigation.
13.2 Jurisdiction. All Agreements and any transaction order relating thereto shall be governed by and construed in accordance with the laws of the State of Florida, United States of America. In any action or proceeding arising out of or relating to an Agreement (an “Action”), each of the parties hereby irrevocably submits to the non-exclusive jurisdiction of any federal or state court sitting in Miami, Florida and further agrees that any Action may be heard and determined in such Florida federal or state court. Each party hereby irrevocably waives the defense of an inconvenient forum to the maintenance of any Action in Miami, Florida. Disputes over payment and collection may be resolved, at MSTS’s option, in Florida courts or in the courts of any jurisdiction where Merchant may have any asset. Each of the parties hereby irrevocably submits to the jurisdiction of any such court, and irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum or its foreign equivalent to the maintenance of any action in any such court. MSTS shall be entitled to assert its rights of lien or attachment or other rights, whether in law, equity or otherwise, in any country where Merchant has any assets.
13.3 Trial by Jury. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY AGREEMENT.
13.4 Waiver of Immunity. To the fullest extent permitted by applicable law, Merchant expressly and irrevocably waives, and agrees not to assert, a defense of immunity on the grounds of sovereign immunity or other similar grounds in any action or proceeding which may be commenced or asserted by MSTS against Merchant or Merchant’s revenues and/or assets, whether in whole or in part or otherwise, which status would otherwise entitle Merchant to assert such a defense in any claim against it from: (a) suit; (b) jurisdiction of any court; (c) relief by way of injunction, order for specific performance or for recovery of property; (d) attachment of Merchant’s revenues and/or assets (whether before or after judgment); and (e) execution or enforcement of any judgment to which Merchant or Merchant’s revenues and/or assets might otherwise be subject in any proceedings in the courts of any jurisdiction.
ARTICLE 14 – GENERAL
14.1 Assignment. Merchant shall not assign any right or delegate any obligation arising under any Agreement without the prior written consent of MSTS, which consent may be withheld in the sole discretion of MSTS.
14.2 Waiver and Amendment. No remedy referred to in any Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in an Agreement or otherwise available to MSTS at law or in equity. The exercise or beginning to exercise by MSTS of any one or more such remedies shall not preclude the simultaneous or later exercise by MSTS of any or all such other remedies. All remedies under any Agreements survive termination of such Agreement. Failure by MSTS to enforce any of its rights hereunder shall not constitute a waiver of such rights or any other rights hereunder. No waiver of any of the provisions of any Agreement shall be effective unless it is in writing, and signed by MSTS and Merchant. Any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver. Notwithstanding anything in any Agreement to the contrary, these General Terms and Conditions may be amended unilaterally from time to time by MSTS upon notice given to the Merchant at least thirty (30) days prior to the effective date of the amendment, provided however that Merchant shall have the right to reject such amendment by terminating any Agreement by giving MSTS written notice prior to the effective date of such amendment.
14.3 Severability. If any provision of an Agreement is deemed invalid, void or unenforceable then the remainder of such Agreement shall not be impaired or invalidated and each such provision shall remain in full force and effect to the extent permitted by law.
14.4 Headings. The headings used in Agreements are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting any Agreement.
14.5 Notices. All notices, requests, demands, or other communications required hereunder shall be in writing and shall be deemed to have been duly given upon receipt if delivered in person, by overnight courier, facsimile, e-mail transmission, or upon the expiration of three (3) days after the date sent via certified mail or return receipt requested. All notices sent by mail or courier service shall be sent to MSTS at 8650 College Boulevard, Overland Park, KS 66210, Attention: General Counsel, and to Merchant at the address provided by Merchant in the merchant set-up documentation submitted to MSTS. Either party may by written notice to the other change the address, or facsimile number, or electronic messaging system details to which notices or other communications are to be sent.
14.6 Advertising. A party shall not, without the prior written consent of the other party, use the name or any trade name or registered trademark of the other party or any affiliate of the other party in any advertising or communications to the public in any format except as necessary to perform its obligations hereunder, nor shall a party make publicity releases or announcement regarding any Agreement. Each party shall cause its employees and agents to comply with these requirements.
14.7 Trademark. Merchant shall not use, without the prior written consent of MSTS, MSTS’s trademarks, trade names or any other symbols. If MSTS consents in writing to the use of such trademarks, trade names or any other symbols, these shall be used (i) only for the purpose of identifying the products and services of MSTS, (ii) within the scope of the applicable Agreement and (iii) in MSTS’s sole interest. Merchant hereby agrees neither to register, nor to have registered, any trademarks, trade names or symbols of MSTS or any Group Company. MSTS’s permission to use MSTS’s trademarks, trade names or symbols as provided hereunder, shall cease immediately for Merchant on the expiration or termination of this Agreement for any reason or upon notice from MSTS. Merchant shall notify MSTS of any infringement of MSTS’s trademarks, trade names or symbols that come to its attention.