INTUIT MERCHANT AGREEMENT
Thank you for selecting the Services offered by Intuit Inc., Intuit Payment Solutions, LLC, and/or its subsidiaries and affiliates (referred to as "Intuit", "we", "our" or "us") for your payment processing needs. Please review this Merchant Agreement ("Agreement") thoroughly as it is a legal contract between Intuit, you and the business entity on whose behalf you are acting. This Agreement addresses important terms such as, among other things, pricing, your responsibility with respect to chargebacks from your customers, our ability to hold your funds in reserve, the process for any disputes that might arise, and information security, all of which (and more) are addressed in detail below.
In this Agreement, "you" and "your" refers to you, the business, its designated agents, principals, guarantors or owners (collectively "Merchant"). By applying for or using the Services, you are agreeing to the terms of this Agreement.
A. GENERAL TERMS
1. Agreement. This Agreement describes the terms governing your use of our card, ACH (electronic bank payment) and other payment processing services (collectively, "Services"), which will enable you as a merchant to collect payment from your customers. When we enable you to collect payments from your customers, we as, Intuit Payment Solutions, LLC act as your agent pursuant to this Agreement to collect the funds from your customers on your behalf. When we collect payments from your customer on your behalf, your customer satisfies their obligation to pay you. When we collect payments from your customer, we agree to pay you pursuant to this Agreement. This Agreement governs your use of the Services and includes by reference:
- Intuit's Privacy Statement, Acceptable Use Policy and Pricing Schedules provided to you on this website or to you otherwise.
- Additional Terms and Conditions, as provided, which may include those from third parties (such as the Commercial Entity Agreement).
- Any terms provided separately to you for the Services, including product or program terms, ordering/pricing, activation, payment terms, etc.
2. Eligibility. The Services are available only in the United States (but not the U.S. Virgin Islands, Puerto Rico, and the other U.S territories and possessions). To be eligible to use the Services, you: must not be domiciled, reside, or have a principal place of business outside the US; must not be engaged in any illegal activity or any activity reasonably likely to cause notoriety, harm or damage the reputation of Intuit, our sponsor banks, card or payment network (such as VISA, MC, American Express, Discover, JCB, NACHA, PayPal, Apple Pay); must not be listed on a VISA Terminated Merchant File, MasterCard MATCH, or any other third party or governmental prohibited merchant or individual lists; and must comply with our Acceptable Use Policy. You may only use the Services for the business and purpose described by you in your Merchant Application.
3. Your Personal Guarantee. Intuit requires that a principal or owner of the business (the "Guarantor") accept this Agreement and who will personally guarantee all obligations of your business under this Agreement. You are confirming that you are either a principal or owner of the business and/or are authorized to act on the business' and the Guarantor's behalf. You agree that the Guarantor is providing a personal guarantee under this Agreement. This personal guarantee is a general, continuing, absolute and irrevocable guarantee for payment of monies owed by the business to Intuit. You agree and understand we may proceed directly against the Guarantor without first exhausting our remedies against the business entity. Intuit's decision to enter into this Agreement and provide the Services is conditioned on the Guarantor's personal financial stability, and the Guarantor hereby authorizes us to conduct any necessary identity and credit checks at any time to determine the Guarantor's creditworthiness. Late payments, missed payments, non-payment and other defaults on your Merchant Account will be reflected in your business' credit report and/or the Guarantor's personal or individual credit report.
4. Verification; Credit Checks. You agree and authorize us (directly or through third parties) to make any inquiries we consider necessary to verify your identity, account information or to determine your current and ongoing creditworthiness. This may include asking you to confirm ownership of your email address, mobile/phone numbers, bank accounts, or by verifying your information against third party databases (including by obtaining your individual and business credit report, personal profile or other information from one or more third party databases). If you are a QuickBooks merchant, you agree that we may access and use your QuickBooks information for underwriting, identity verification or fraud analysis purposes. You further agree and authorize us to share credit reports and any other information we have on you or the business with any third party, to the extent such parties provide Services to you or us. Additionally, you agree that your bank and the consumer reporting agencies may release any and all individual and business credit and financial information to us. You further authorize us to disclose any information obtained from any source (including credit reports) to any governmental, administrative or regulatory entity, our respective vendors and affiliates for fraud or verification purposes or to comply with applicable law or investigation, including, without limitation, the U.S.A. Patriot Act. You acknowledge and agree that we may request that you provide additional information at any time, including but not limited to: a copy of a government issued ID (such as a passport or driver's license); your business license; taxpayer ID number; financial or bank statements; or your personal or business tax returns.
5. Participating Sponsor Banks; Commercial Entity Agreements. You acknowledge and agree that this Agreement is between you and Intuit, not with any other third party (including, but not limited to, any card or payment network such as MasterCard, VISA, JCB, Discover, American Express, PayPal, Apple Pay or any of our sponsor banks), however, these third parties are third party beneficiaries of this Agreement. We may require that you enter into separate and direct agreements (a "Commercial Entity Agreements") with one or more of our sponsor banks or card network if your processing volume exceeds certain threshold amounts. A copy of the Commercial Entity Agreements can be found at intuitpayments.com/legal which shall be in effect upon your exceeding such threshold amounts by accepting this Agreement In certain circumstances, new pricing terms, including but not limited to card processing rates and fees may apply. You agree that our sponsor bank and all parties to a Commercial Entity Agreement may rely on the information you provided in your Merchant Application for approval and underwriting of your Commercial Entity Agreement. Terms of the Commercial Entity Agreement will govern your use of the specific services contemplated under the Commercial Entity agreement.
6. Merchant Application; Updating Your Information. You must complete a Merchant Application and be approved by our underwriting department prior to your use of the Services. Once approved, you will be issued a Merchant Account (see Section 13 below). You agree that the information you provided in the Merchant Application (or otherwise requested by Intuit as part of an application or investigation process) is true, accurate and complete. On an ongoing basis, you agree to update us with the current address of your home and business, all "Doing Business As" (DBA) names used by you, list of principals, owners or officers, home addresses, personal and business telephone, URL (web address), email addresses, and a complete description of goods sold and services provided by the business. If the scope or nature of your business or the type of products or services you offer changes, you agree to notify us prior to a change. You are liable to us for all losses and expenses incurred by us arising out of your failure to report any changes to us. Intuit reserves the right to immediately terminate this Agreement or suspend your access to the Services in the event of a change in information you previously provided to us.
7. Pricing and Payment. For a list of rates and fees, see the Pricing Schedules. All rates and fees are in US dollars and subject to change upon notice to you. Where required, we will provide 30 days advance notice. We may provide you notice by posting updated pricing or terms on our website or sending you email communication. Price changes are effective on the date indicated on our notice or terms. By continuing to access and use the Services after we have provided you the price change, you are agreeing to such change. All fees due in connection with the Service are non-refundable, whether such fees are set-up fees, transaction fees, monthly subscription fees or other fees. You agree to immediate pay to us all fees set forth in your Merchant Application, the Pricing Schedule and/or other provisions of this Agreement or any other agreements you may have with Intuit. You agree that you will also be responsible for any Chargebacks and any fees, fines or penalties assessed to us or to you by any card or payment network as a consequence of your use or misuse of the Services or your card processing activities. You agree that we may collect fees and other amounts owed under this Agreement including, but not limited to, by netting against the proceeds of your processing activity; by debiting your Bank Account, Reserve Account or any other account you may have at any financial institution; or exercising any other legal rights and remedies we may have under law or equity. You agree that we may collect reasonable fees (including attorney's fees) arising out of, or related to, our efforts to collect fees or other amounts from you. In the event of a late payment, we reserve the right to assess a late payment fee, plus a finance charge equal to one and one-half percent (1.5%) per month on the unpaid amount, or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of a late payment fee and finance charges will not excuse or cure any breach or default for late payment. From time to time, Intuit may modify fees payable by you, (including fees or rates detailed in the Merchant Application, Pricing Schedule or other provisions of this Agreement) by providing you notice of a fee or rate change. You agree that your continued use of the Services after such notice will serve as your acceptance of any change. If you wish to dispute payment to, or collection by Intuit of any fee, you must provide written notice of such dispute within 45 days after you received a statement containing the charge.
8. Per Transaction and Monthly Processing Limits. We will establish processing limits and assign a maximum dollar amount per transaction and/or an aggregate maximum dollar amount per calendar month (or any other time period we designate) that you may process using the Services. You may request an increase in your per transaction limit or your aggregate processing volume by submitting a request to us. Any increase shall be at our sole discretion, and we reserve the right to reverse and decrease any maximum amounts previously authorized. Any increase granted by us may be conditional upon and require the establishment of a Reserve Account (defined in Section 13 below).
10. Bank Account. You will need to establish and maintain a checking account ("Bank Account") at a U.S. financial institution of your choice to facilitate payment of fees to Intuit and the transfer of amounts due to you from your Merchant Account (defined below). You irrevocably authorize Intuit and our sponsor banks to immediately debit your Bank Account for any and all fraudulent transactions, any negative balance in your Merchant Account, for current and past due fees, payment equipment rentals/purchases, fines, penalties, or any amounts you owe us under this Agreement. You agree that Intuit shall not incur any liability for any loss, costs, or fees incurred by you that are the result of such debits by us. We will take reasonable steps to verify your Bank Account information, for example, by requiring you to provide us a cancelled check or by debiting and credit micro-deposits into your Bank Account, including on a recurring basis. You agree that you will not change your Bank Account without our prior consent, which will not be unreasonably withheld. If you do not obtain such prior consent, Intuit may immediately terminate this Agreement.
11. Your Merchant Account. You must open a merchant service account with us ("Merchant Account") to use the Services. The proceeds from your card and other payment transactions ("Settlement Funds") processed using the Services will be recorded in your Merchant Account before we transfer funds to your Bank Account. Settlement Funds do not constitute a deposit you have with us, will bear no interest and are not eligible for insurance with the Federal Deposit Insurance Corporation (the "FDIC"). As permitted by law, we may consolidate any or all funds payable to you and offset any outstanding/uncollected amounts owed by you to us (pursuant to this Agreement or any other agreement between you and Intuit) from any funds we are obligated to deposit into your Bank Account.
12. Intuit Security Interest. This Agreement will constitute a security agreement under the California Uniform Commercial Code. If you owe a debt to us (either now or in the future), you grant us a security interest in all of your various accounts (standing in the name of Merchant and Guarantor alone or in a joint account, including any affiliated companies of Merchant and Guarantor, whether established or maintained pursuant to this Agreement or not) to secure any debt. You agree that we may use funds in any of your accounts to pay all or part of any debt you owe us. You irrevocably consent to Intuit using any means available to locate any such accounts until such time all amounts due have been paid. You grant to us a security interest in and lien upon: (a) all funds representing amounts owing you under this Agreement at any time in your Merchant Account, regardless of the source of such funds; (b) all funds at any time in the Reserve Account (as defined below), regardless of the source of such funds; (c) present and future card or other payment transactions; (d) all funds at any time in your Bank Account, regardless of the source of such funds; (e) your electronic terminal, printer, imprinter and imprinter plate; and (f) any amount which may be due to you under this Agreement, including, without limitation all rights to receive any payments or credits under this Agreement (collectively (a) – (f), the "Secured Assets"). You agree to provide additional security interest to us upon request to secure your obligations under this Agreement. These security interests and liens will secure all of your obligations under this Agreement and any other agreements now existing or later entered into between you and us including, but not limited to, your obligation to pay any amounts due and owing to us. We may exercise this security interest without notice or demand of any kind by making an immediate withdrawal or freezing of your Secured Assets. Upon our request, you agree to execute one or more financing statements or other documents to evidence our security interest. You represent and warrant that no other person or entity has a security interest in the Secured Assets. With respect to our security interests and liens, we will have all rights afforded under the California Uniform Commercial Code, other applicable law or in equity. You must obtain from us written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You authorize us and appoint us your attorney in fact to sign your name to any financing statement used for any security interest or lien granted hereunder.
13. Reserve Account. Upon our request and for the purpose of providing a source of funds to pay us for amounts you owe, you agree that we may place in an account maintained and solely controlled by us, initially or at any time in the future, sums sufficient to satisfy your current and/or future obligations ("Reserve Account"). You agree that we shall have the right to hold funds in such Reserve Account as long as we deem necessary. We may, at any time, require that the amount on deposit in the Reserve Account be increased and shall have sole discretion as to the amount needed in the Reserve Account. Your obligation to maintain a Reserve Account shall survive termination of this Agreement for a minimum period of 270 days or longer after the termination date, or the date of your last transaction depending on your product and business practices. Any balance that remains in the Reserve Account period will be returned to you unless the funds are subject to an investigation or from fraudulent transactions. Unless expressly agreed to in writing, the Reserve Account will not bear interest. Intuit shall have the right to debit funds in the Merchant Account, Bank Account or any other deposit account maintained by you (Merchant or Guarantor) to establish, increase, or maintain funds in the Reserve Account. We may deposit into the Reserve Account funds we would otherwise be obligated to pay you, for the purpose of establishing, increasing, or maintaining the Reserve Account in accordance with this section, if we determine such action is reasonably necessary to protect our interests. You understand and agree that if you are required to establish a Reserve Account, you have an obligation under this Agreement to maintain at all times a balance in the Reserve Account sufficient to protect us against losses resulting from any payment transactions initiated by you. We may, without notice to you, apply funds deposited in your Reserve Account against any outstanding amounts you owe us under this Agreement or any other agreement between you and us. Also, we may debit your Reserve Account to exercise our rights under this Agreement to collect any amounts due to us including, without limitation, rights of set-off and recoupment.
14. Intuit Right of Recoupment and Set-off. Intuit shall have the right of recoupment and set-off under this Agreement. This means that we may offset any outstanding or uncollected amounts owed to us from: (a) any amounts owed to you that we would otherwise be obligated to deposit into your Merchant Account, (b) any other amounts we may owe you under this Agreement or any other agreement, (c) the Bank Account which you may have associated with your Merchant Account, and (d) the Reserve Account. You acknowledge that in the event of a bankruptcy proceeding, in order for you to provide adequate protection under Bankruptcy Code § 362 to us, you must create or maintain a Reserve Account as required by us, and we will have the right to offset against the Reserve Account for any and all obligations which you may owe to us, without regard to whether the obligations relate to a payment transactions initiated or created before or after the filing of the bankruptcy petition.
15. Billing Errors; Your Right to Request Investigation. If you suspect an error in your payment transaction statement or history, you must notify us in writing. You must include in your written request for investigation: (a) your name: (b) business name; (c) Bank Account number; (d) the dollar amount of the asserted error; (e) a description of the asserted error; and (f) an explanation of why you believe an error exists and the cause of it, if known. Intuit must receive your written notice within 45 days after you received a statement containing the asserted error. If you fail to notify us within 45 days, you will be deemed to have accepted the fees and charges as set forth in the applicable statement and we will have no obligation to investigate the error or refund any such amounts to you. We will advise you of the results of our investigation and if we have made an error, we will correct it promptly. If we determine that there was no error, we will send you an explanation of the determination. You may ask for copies of the documents that we used in our investigation, subject to any applicable fees.
16. Chargebacks. You customers sometimes dispute transactions, which may lead to a payment transaction being reversed or returned, otherwise known as a "Chargeback."" Intuit does not decide what transactions are charged back and Intuit does not control the ultimate resolution of a Chargeback. Sometimes your customer may be able to successfully charge back a transaction even though you have provided your goods or services and are otherwise entitled to payment from your customer. You are responsible for all Chargebacks and will be liable to us for the total amount of any sale for which a customer disputes the validity of the sale, plus any applicable Chargeback fees imposed by us or a third party. You authorize us to offset from incoming transactions and to debit your Merchant Account, Bank Account, and/or the Reserve Account to recover any Chargeback plus any applicable Chargeback fees imposed by us or a third party. You agree to fully cooperate with us in complying with the Rules regarding chargebacks, including any request for documentation. We may suspend the Services and stop releasing funds represented by payment transactions to you until you reimburse us for all unpaid Chargebacks. You must not re-enter or reprocess any payment transaction that has been charged back.
17. Excessive Chargebacks. Excessive Chargebacks are a breach of this Agreement and cause for immediate termination and assessment of an additional Excess Chargeback fee. "Excessive Chargebacks" means: chargebacks during any monthly period and for any one of your terminal identification numbers or merchant identification numbers, Chargebacks and/or retrieval requests in excess of 1% of the average monthly dollar amount of transactions, or ACH unauthorized returns in excess of 0.5% or returns in excess of 3% of the average monthly dollar amount of transactions or processing an average transaction above the processing limits or amount approved by us. You authorize us, upon the occurrence of Excessive Chargeback, to take additional actions we may deem necessary, including, but not limited to, suspension of Services or creation or maintenance of a Reserve Account in accordance with this Agreement. You acknowledge and agree that Intuit may be required to report your name to one or more card or payment associations for inclusion into VISA Terminated Merchant File, MasterCard MATCH, or any other prohibited merchant list in the event of fraud, Chargebacks, Excessive Chargeback, or if we terminate your access to Services. You agree to such reporting and waive any claims, which you may raise against Intuit as a result of such reporting. Intuit, at its sole discretion may report incidents of fraud, counterfeit paper, unauthorized transactions, Chargebacks, Excessive Chargebacks or highly suspect activity to law enforcement and any other third party, including but not limited to the card or payment networks.
18. Risk Monitoring; Unusual or Suspicious Transactions. In an effort to manage our risk, we will monitor your transactions and processing activity for high-risk processing practices, compliance with our Acceptable Use Policy or for fraudulent transactions. If we believe there is suspicious or unusual activity, we may temporality suspend your access to Services or move your Settlement Funds into a Reserve Account. Suspicious or unusual activity includes, but is not limited to: changes in your average transaction amount or processing pattern; monthly percentage of different transaction types; or Excessive Chargebacks. We may report suspicious or unusual activities to our sponsoring bank or payment processors and if required by law, to law enforcement agencies. You agree that your activity will remain consistent with approved processing limits. Intuit may require additional documentation if you exceed your approved processing limits and you agree to promptly provide such documentation upon request. You agree that Intuit may, in its sole discretion, elect not to process transactions over your approved aggregate processing volume or per transactions limits, and/or to close your Merchant Account for cause in the event of over-limit or Excessive Chargebacks. You further agree that Intuit may, in its sole discretion, suspend the disbursement of Settlement Funds to you for any reasonable period of time required to investigate suspicious or unusual deposit or processing activity and that such suspension may subject you to additional suspension fees. If a transaction is subject to an investigation, Intuit will conduct a review and either clear or cancel the transaction. If a transaction is cleared, Intuit will provide notice to you. Otherwise, Intuit will cancel the transaction and Settlement Funds may be returned. Intuit will have no liability for any losses, either direct or indirect, which you may attribute to any suspension of fund disbursement. In the event of fund suspension arising from suspicious or unusual transactions, you agree that you may be charged a security-processing fee for each suspended transaction, and, if the suspended transaction or unusual or suspicious activity exceeds $3,000, an additional investigative fee may be assessed for each such event. If we suspend a batch transaction, you acknowledge that the consumer's product or service must be delivered just as if you have been paid. Further, if a batch or a transaction is suspended, you acknowledge that fees associated with the transactions will be charged including a security processing fees.
19. Acceptable Use Policy; Other Intuit Policies. The Acceptable Use Policy and any updates thereto, apply to your use of the Services. The Acceptable Use Policy, and any updates we make, will restrict you from using our Services in connection with certain types of prohibited products and services, including but not limited to the sale of adult-oriented products, drug paraphernalia; or betting, credit repair or debt collection services. If you are engaged in any of the prohibited activities described in our Acceptable Use Policy, you are not eligible (or will become ineligible) to use our Services. From time to time, Intuit may publish additional guidelines, policies and rules (collectively "Intuit Policies") governing your use of the Services. To the extent Intuit Policies applies to you, you agree to use the Services in a manner consistent with such policy and to provide any information we deem necessary to verify your compliance with said Intuit Policies.
20. Compliance with Law, Card Network and NACHA Rules. In connection with your use of Services or in the course of your interaction with your customers, or us, you agree to comply with all laws and regulations applicable to you, your business, and the Services. By using the Services, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. governmental embargo, or that has been designated by the U.S. government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. You further agree not to breach this Agreement, any Intuit Policies, procedures or any instructions provided by us. You further agree to use Services in a manner that is consistent with all rules and operating regulations issued from time to time by: the credit card networks (i.e. VISA, MasterCard, American Express, JCB, Discover, PayPal, Apple Pay, etc.); the Payment Card Industry, including but not limited to the Payment Card Industry Data Security Standards ("PCI DSS") and Payment Application Data Security Standard ("PA-DSS"); and the National Automated Clearing House Association ("NACHA"), which that applies to transactions processed using Automatic Clearing House ("ACH") (collectively, "Rules"). The Rules are incorporated into this Agreement by reference as if they were fully set forth in this Agreement. The current versions of the Rules may be viewed on the website at: http://quickbooks.intuit.com/legal/payments/overview/
You also agree not to request an ACH or card transaction that violates the laws of the United States, which include, but are not limited to, sanctions enforced by the Office of Foreign Assets Control ("OFAC").
21. Prohibited Processing Practices; Fraudulent Transactions. The following payment processing practices are prohibited under this Agreement:
- You may not split transactions on multiple cards or other payment transactions except where: (a) partial payment is entered on a transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or (b) the amount represents an advance deposit in a card transaction completed in accordance with this Agreement, any applicable card or payment network rules.
- You agree to include all goods and services purchased in a single transaction at one time on a single transaction or payment receipt, except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payments; or (iii) for delayed or amended charges governed by rules for travel and entertainment merchants and transactions.
- You will not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt, or dishonored check of a customer.
- You agree not to present for processing or credit, directly or indirectly, any transaction not originated as a result of a payment transaction directly between you and a payor.
- You agree not to present for processing or credit any transaction you know, or should know, to be fraudulent or not authorized by a cardholder, payor or customer. We will refer perpetrators of fraudulent transactions, in our discretion, to the appropriate law enforcement agency and/or report these matters to the card or payment networks or other third parties.
- You are prohibited from receiving any cash payments from a customer for charges included in any card processing transaction, resulting from the use of a credit or debit card.
- You may not receive any payment from a payor or customer to prepare and present a transaction for the purpose of affecting a deposit to that customer or payor's account.
- You agree not to deposit any transaction for the purpose of obtaining or providing a cash advance either on a card or other payment instrument owned by you or any other party. You agree that any such deposit or any use of the Services to process your own cards shall result in immediate termination of this Agreement.
- You agree not to deposit duplicate transactions and will be solely responsible for the full amount of any duplicate transactions. You agree not to accept or deposit any fraudulent transaction and may not present for processing or credit, directly or indirectly, a transaction, which originated with any other merchant or any other source. If you deposit any such transactions we may hold funds and/or demand a Reserve Account.
22. Preapproval Required for Web, Phone, Mail Based Processing and Recurring Payments; Lodging and Vehicle Rental Transactions. You must be pre-approved by us in order use the Services in connection with web, mail and phone based orders of certain business activities or to charge customers on an automatic recurring payment plan. Any transactions related to a web, mail, phone order or recurring basis will be subject to reversal or will not be processed unless pre-approved by us. If you are authorized to accept payment by web ("IO), mail ("MO), phone ("TO") or pre- authorized ("PO") order, a transaction receipt may be completed without the cardholder's or payor signature or an imprint, but in such case you agree to create a receipt containing the card number, expiration date, transaction date, an authorization number, the sale amount and the letters "MO", "TO", "PO" or "IO" as appropriate. Your name, city and state of the business must also be included. Receiving an electronic authorization shall not relieve you of liability for Chargeback on any transaction for which you did not obtain an imprint and the cardholder's signature. If you have been approved for MO, TO, PO and IOs, you agree to use reasonable procedures to mitigate payment card and identity fraud. Unless approved in writing us, you agree not process sales prior to delivery of product or service. If a product is being shipped, your customer must be given the shipping date of the product once the sale is processed. If you prohibit refunds in certain circumstances, you may still receive a Chargeback fee relating to such sales pursuant to applicable Rules. You agree not to accept credit card sales via email. For any recurring transactions, you must obtain a written, or other form of request from a customer for such goods and services to be charged to the customer' account, which request must specify the transaction amounts to be charged to the cardholder's account, the frequency of the recurring charge and the duration of time during which such charges may be made. You agree not to complete any recurring transaction after receiving a cancellation notice from the cardholder, Intuit, or in response to an electronic authorization request, which indicates that the card will not be honored. You agree to include "Recurring Transaction" on the signature line of the receipt. You agree to provide a copy of written request to a cardholder's issuing upon request, and shall retain a copy of written request for one year after the agreement between Merchant and payor is terminated. For multi-year agreements, you shall renew written request with cardholder annually during the 12th month of the current agreement. You must estimate and obtain an electronic authorization for the amount of a lodging transaction based upon the cardholder's intended length of stay. Additional electronic authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount.
23. Use of Card Network Trademarks and Other Payment Program Marks. You must prominently display the promotional materials provided by us at your place of business. Use of promotional materials and use of any trade name, trademark, service mark or logo type ("Marks") associated with various card or payment networks shall be limited to informing the public and your customers that certain card types are accepted at your place(s) of business. You may use promotional materials and Marks during the term of this Agreement and shall immediately cease their use and return any inventory to us upon termination of this Agreement. You agree not to use any promotional materials or Marks in any way that implies that a card or payment network or Intuit endorses any goods or services that your business provides to customers or payors. Your use of VISA, MasterCard, American Express, Discover, Diner's, PayPal, Apple Pay and debit card network Marks will fully comply with applicable Rules.
24. Accepting Credit and Debit Cards; Minimum Credit or Debit Transaction Amount. You agree to accept all valid credit and debit card types and brands properly presented by a payor or cardholder for payment for goods or services without discrimination. When accepting a credit or debit card, you agree to: (a) determine in good faith whether the card is valid; (b) obtain an electronic approval or authorization (see Section X below) before completing a sale; (c) or obtain an imprint of the card (including cardholder's signature) unless a receipt is electronically generated from a swiped transaction or is the result of an web, mail, phone or preauthorized order; (d) have reasonable practices in place to verify the cardholder's or payor's identity; (e) deliver a copy of the customer receipt to the cardholder or payor at the time of delivery of the goods or performance of the Services or point of sale; and (f) be able to reproduce without alteration a legible merchant receipt, containing the cardholder's name, account number, expiration date, the Merchant name and place of business. You may establish a minimum transaction amount for accepting credit card transactions so long as such amount does not exceed US $10.00, or other amount established by law, and such minimum transaction size requirement does not discriminate between card networks. You may not require a minimum transaction amount for debit card transactions. You may offer discounts or in-kind incentives for payment by the use of cash, checks, debit cards, or credit cards, provided that the terms of the discount or in-kind incentives do not differentiate on the basis of the issuer of the card or payment network. You shall not accept a card as payment (other than for a mail order, telephone order, or preauthorized sale to the extent permitted under this Agreement), if the cardholder seeking to use the card does not present the card to permit you to examine it and obtain an imprint or otherwise use the physical card to complete the transaction.
25. Your Return Policy; Adjustments, Credit Vouchers. You agree to post your exchange or return policy in accordance with applicable Rules. If applicable, you must disclose to you customers before a payment transaction is processed, that if merchandise are returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g., late delivery, charges, or other noncredit terms). Disclosures must be made on all receipt copies in letters approximately 1/4" high in close proximity to the space provided for the customer or payor's signature on the sales or transaction receipt and issued at the time of sale. If you do not make these disclosures, a full refund in the form of a credit to the customer or payor's account must be given. You agree not to refund cash to a customer or payor who paid for the item by card. You must provide a credit to the same card on which the original transaction was processed. If you accept any goods for return or terminate or cancel any Services, in conjunction with each such transaction, you agree to have sufficient funds in your Merchant, Reserve or Bank Accounts to which we have access over the amount of the transaction and any related fees.
26. Proper Electronic and Customer Authorization; Customer Receipts. You must obtain electronic authorization for all credit and debit card transactions. If you cannot, for any reason, obtain an electronic authorization, you will request a voice authorization from a designated authorization center, and will legibly print the authorization number on the customer receipt and merchant copy of the receipt. A processing fee will be charged for voice authorization services. You understand and agree that an electronic authorization is not a guarantee of payment. You may not attempt to obtain an electronic authorization on an expired credit or debit card. All transactions using an expired or otherwise invalid card may not be processed and the transaction deemed invalid. You agree to use reasonable efforts to retain or recover a card when receiving instructions upon making a request for an electronic authorization to retain a customer's card. In carrying out such obligation, you agree not to breach the peace or cause any injury to any cardholder, person or property. You must also obtain a customer or payor's authorization via methods acceptable to us and in accordance with the Rules prior to completing any card or payment transaction. You must follow any instructions received during the authorization process. Upon receipt of authorization, you may consummate only the transaction authorized. Where authorization is obtained, you will be deemed to warrant the true identity of the customer as the cardholder, check writer or payor. Transactions will be deemed invalid on cards that are expired, whether or not an authorization has been obtained. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired card or other payment instrument. We may refuse to authorize any transaction, and we are not liable to you if authorization for a transaction is not given. You will not have any claim against, or right to receive payment from, a cardholder, payor or customer in any payment transaction if we refuse to authorize the transaction for any reason. You further agree to deliver to a customer, cardholder or payor at the time of the transaction a complete and legible receipt from a payment transaction or refund. You must retain the merchant copy of the receipt in accordance with the applicable Rules, information security and confidentiality requirements for at least three (3) years following the date of completion of the a card or other payment transaction (or such longer period as the Rules may require).
27. Records; Requests for Copies. You must retain a copy of all customer receipts and return/credit receipts, for at least three (3) years after the date of a payment transaction. Within three (3) business days of your receipt of any written or verbal request by sponsor bank, our card or payment network, or us you agree to provide a copy of any requested transaction receipt. Your failure to deliver the requested documentation in the required time frame may result in a transaction in question being charged back or us refusing to process said transaction.
28. Policy Violations; Action Upon Termination for Cause. If Intuit incurs any damages because you violate our policies, this Agreement, the Rules, break any laws, or otherwise cause Intuit to incur any expenses, then we may hold your funds up to 270 days, fine you for each such violation and take legal action against you to recover additional losses, investigation costs, fines, or legal fees we may incur. You acknowledge and agree that a fine of US $2,500.00("Set Damages") for violations of our Agreement is presently a reasonable minimum estimate of Intuit's damages, considering the harm to Intuit that could reasonably be anticipated. This Set Damages is only applicable where Intuit is not fined or charged a penalty or fine by a third party for your violations. Where Intuit is fined or charged a penalty or fine by a third party, Intuit may pass on those fines or penalties to you plus an administrative fee of $500 per fine or penalty. Intuit may deduct the Set Damages and any fines, penalties and fee directly from any existing balance in any account you control.
29. Data Security (PCI Compliance); Payor/Cardholder Personal Information. The card networks (such as VISA, MasterCard) and the payment networks (such as National Automated Clearing House Association or "NACHA") have similar standards for protecting sensitive payment information and cardholder or payor data. For example, the Payment Cards Industry Data Security Standards (PCI DSS) defines the requirements that all entities that store, process or transmit payment card data must comply with. You must ensure you have data security policies and processes in place to protect cardholder and payor payment and personal data in compliance with PCI DSS and NACHA security requirements. You must keep all systems and media containing account, customer, or transaction information (physical or electronic, including but not limited to account numbers and card imprints) in a secure manner, to prevent access by or disclosure to anyone other than your authorized personnel. You must destroy in a manner that will render the data unreadable all such media that you no longer deem necessary or appropriate to store (except for receipts maintained in accordance with this Agreement, laws, Rules, and policies). Further, you must take all steps reasonably necessary to ensure cardholder or payor payment information is not disclosed or otherwise misused. You may not retain or store magnetic stripe or CVV2, CVC2, or CID data after authorization. You agree that in the event of a breach, unauthorized access or compromise of payor or cardholder data, you agree to immediately notify us and provide us with detailed information relating to the breach or compromise. You may not require cardholders to provide any personal information as a condition of honoring a card unless such information is required for delivery of the goods or services or you have reason to believe that the person presenting a card may not be the actual cardholder.
Additionally, the following terms apply regarding your Account Access Password:
If you receive a user identification name or password from IPS to access IPS' database or use services offered by IPS, you will: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to IPS' database; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify IPS if you believe the user identification name or password have been used inappropriately or the confidentiality of the information made available through such use has been compromised.
You agree that any loss incurred as a result of any party gaining access to your bank account or IPS' website using information which that party was not authorized to obtain or using such information in a manner not permitted by this Agreement (including but not limited to improper or unauthorized use of the your ID number and PIN) shall be your responsibility.
30. Your Insolvency; Bankruptcy. You must immediately notify us of any bankruptcy, receivership, insolvency or similar action or proceeding initiated by or against you. You will include us on the list and matrix of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the time of filing, and failure to do so will be cause for immediate termination or any other action available to us under this Agreement, applicable credit card or payment network rules or applicable law. You acknowledge that this Agreement constitutes an executory contract to make a loan, or extend other debt financing or financial accommodations to or for the benefit of you, and, as such, cannot be assumed or assigned in the event of your bankruptcy, without our expressed written consent.
31. Taxes. You are responsible for all taxes and other charges imposed by any governmental authority. You are solely responsible for determining any and all taxes assessed or required to be collected, and/or paid by you in connection to your use of our Services. Intuit may be required by law to report certain transactions that meet certain Internal Revenue Service ("IRS") requirements.
32. Merchant Service Center ("MSC"); Your Consent to Electronic Communication. Upon approval of your Merchant Application, we will provide you a user ID and password and you will be able to access our customer service portal, the Online Service Center. We will communicate with you mainly through the OSC or via email. As part of the Services, or as required by law, Intuit may send communications to you that pertain to the service. You agree that Intuit and others who may administer such services (as applicable), may send communications to you by OSC, sms/text, email and/or may make communications available to you by posting them at one or more of our sponsored websites, such as https://merchantcenter.intuit.com. If you decide that you do not want to receive future Communications electronically, write to us at Intuit Payment Solutions, 21215 Burbank Blvd., Suite 100, Woodland Hills, CA 91367, Attn: Customer Care Director or by contacting customer care through https://merchantcenter.intuit.com. If you do not provide your consent to receive electronic communications, other than tax statements, Intuit reserves the right to discontinue the Services, close your account, or charge you additional fees for paper copies. You may withdraw your consent to receive tax statements electronically, including IRS Form 1099-K, at any time by contacting us as described above. In such case we will send your Form 1099-Ks to you by U.S. mail, subject to an additional fee. If you have consented to receive electronic communications but also wish to receive paper copies of any communication, you may request such copies, which will be sent via U.S. mail. A Documentation Fee may apply, however. No fee will apply to required tax disclosures, including Form 1099-K disclosures.
33. Intuit's Use of Your Information. You agree that Intuit may maintain and use your information in accordance with Intuit's Privacy Statement. Intuit, at its sole discretion, may report information about you and your account to credit reporting agencies, fraud monitoring services, and other third party vendors to the extent necessary to provide the Services or any Intuit service to you, or to manage our risk. Intuit, at our sole discretion, may share your information with law enforcement, government agencies, attorneys, credit bureaus, fraud detection and monitoring services, card or payment networks if we suspect fraud, suspicious activity (including identity fraud) or for any debt collection purpose. For merchants processing American Express, you agree that we may provide American Express with your information for marketing purposes.
34. Inactive Accounts; Unclaimed Property. Failure to present any transaction for clearing and settlement or failure to add funds or access funds in your Merchant Account, for the (1) the applicable time period as mandated or allowed by state law, or (2) twenty-four (24) months, whichever is less, may result in your Merchant Account being terminated and your funds (less a processing fee) remitted to your state of residency. At our sole discretion, we may suspend your access to the Services in the event your Merchant Account has been inactive for six (6) months or longer.
35. Your Representation and Warranties. Without limiting any other warranties under this Agreement, you represent and warrant that: (1) you have the right, power, and ability to enter into this Agreement; (2) that all information you provide to us is correct and accurate; (3) all transactions submitted by you are bona fide transactions; (4) you will fulfill all your obligations to your customers and will resolve any customer disputes or complaints directly; (5) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (6) your use of Services is in compliance with this Agreement. You further hereby represent and warrant that each payment transaction you present to us for processing is genuine and is not the result of any fraudulent transaction and is not being deposited on behalf of any business other than yours. You warrant that each transaction is the result of a bona fide purchase of goods or services by your customer in the total amount stated on a transaction or customer receipt. You agree to perform or will perform all of your obligations to your customer in connection with the transaction evidenced by a transaction (or customer) receipt. You agree to comply with all applicable procedures related to accepting credit or debit cards, and the card payment transaction itself shall not involve any element of credit for any other purposes other than as set forth in this Agreement and shall not be subject to any defense, dispute, offset or counter claim which may be raised by any payor or cardholder under any applicable laws or Rules. You agree that any reversal of a transaction initiated by you represents a bona fide refund or adjustment on a payment transaction.
36. Disclaimer of Warranties. YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. INTUIT, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY,"SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. INTUIT AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. INTUIT, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
37. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF INTUIT, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, INTUIT, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET INTUIT SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF INTUIT AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF INTUIT, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.
38. Use of Services With Your Mobile Device. Use of these Services may be available through a compatible mobile device, Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. INTUIT MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
39. Indemnity. You agree to indemnify and hold Intuit, its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). Intuit reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Intuit in the defense of any Claims.
40. Changes to this Agreement. We reserve the right to change this Agreement or Pricing Schedule at any time, and the changes will be effective when posted through the Services, on our website for the Services, the OSC or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your acceptance and agreement to the changes.
41. Termination, Effect of Termination. Intuit may immediately, in its sole discretion and without notice, terminate this Agreement or suspend Services with or without cause. Upon termination for any reason, you will immediately cease requesting electronic authorizations and will cease transmitting transaction receipts to us. Upon termination, you must immediately stop using the Services, must cease use of all card or other payment network signage, and any outstanding payments will become due. Any termination of this Agreement shall not affect Intuit's rights to any payments due. All sections of this Agreement that by their nature should survive termination or expiration will remain in effect, including without limitation, accrued rights to payments, indemnification, confidentiality, warranty disclaimer and limitations of liability, even if the Agreement is terminated. All of Merchant's obligations under this Agreement, which arise or are incurred prior to the effective date of termination, shall survive the expiration or termination of this Agreement. You may be required to pay termination fees as set forth in your Merchant Application. If your Merchant Application references a "standard termination fee," a fee of $295 dollars may apply upon your termination of Services.
42. Termination for Merchant Misconduct. We may terminate this Agreement without prior notice if: (i) we have reason to believe that fraudulent transactions or other activity prohibited by this Agreement is occurring; (ii) such action is necessary to prevent loss to us, (iii) violate any portion of this Agreement, including our Acceptable Use Policy; or (iv) you appear on any card or payment network or other fraud, prohibited, or security reporting list. An administrative account closure fee of $500 may be charged to you if we terminate for the reasons set forth in this section. Additionally, we reserve the right to terminate any free, promotional subscription to QuickBooks you may have received in connection with your use of the Services. All rights and obligations of the parties existing hereunder as of the effective time of termination shall survive the termination of this Agreement.
43. Export Restrictions. You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.
44. Force Majeure. Any delay in or failure of performance by Intuit under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond their reasonable control, including, but not limited to, acts of God, power outages, failures of the Internet, failures of banking or ACH networks.
45. No Assignment. You agree that you will not assign to any third party any payments due, and all indebtedness arising from charges will be for bona fide sales of goods or services (or both) and free of any liens, claims, and encumbrances other than ordinary sales taxes; provided, however, you may sell and assign future transaction receivables to Intuit, Intuit's affiliates, and any other cash advance funding source that works with Intuit or Intuit's affiliates.
46. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that either party may: 1) assert claims in small claims court if the parties claims qualify or 2) assert claims limited strictly to collection of past due amounts and any interest or cost of collection (including attorney's fees) permitted by law or the Agreement. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES WHETHER PURSUED IN COURT OR ARBITRATION MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT YOU AND INTUIT ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to Intuit Inc., in care of our registered agent Corporation Service Company, 2711 Centerville Road, Wilmington, DE 19808. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA's rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules, but if you are unable to pay any of them, Intuit will pay them for you. In addition, Intuit will reimburse all such fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, Intuit will not seek its attorneys' fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 41 shall survive expiration, termination or recession of this Agreement. INTUIT AND MERCHANT AGREE TO ARBITRATE ALL DISPUTES BETWEEN THE PARTIES AS PROVIDED ABOVE, EXCEPT, INTUIT AND MERCHANT MAY CHOOSE TO PURSUE A CLAIM IN COURT AND NOT BY ARBITRATION IF MERCHANT FAILS TO TIMELY PAY AMOUNTS DUE. Intuit may assign Merchant's account for collection, and the collection agency may pursue claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or the Agreement in any court of competent jurisdiction. For the purposes of bringing a claim in small claims court, the proceedings shall be held in the county and state in which the Merchant legal address is located.
47. Choice of Law. You agree that all performances and transactions under this Agreement will be deemed to have occurred in California and that your entry into and performance of this Agreement will be deemed to be "transaction of business" within the State of California. This Agreement will be governed by the California law, without regard to conflict of law principles.
48. General. This Agreement, including the Additional Terms below (to the extent such Additional Terms are applicable), is the entire agreement between you and Intuit and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of Intuit. However, Intuit may assign or transfer it without your consent. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact Intuit via to the Online Service Center: merchantcenter.intuit.com.
B. ADDITIONAL TERMS FOR SUPPLEMENTAL PAYMENT PROCESSING SERVICES
Your use of the Services is subject to the General Terms of Service above and these Additional Terms below where applicable for supplemental payment processing services. These Additional Terms shall prevail over any conflict or inconsistency with the General Terms of Service. Additional fees may apply.
AMERICAN EXPRESS CARD PROCESSING
1. Processing of American Express Transactions. Depending on the specific American Express program (PSP, One Point or ESA) through which you process American Express cards, Intuit or American Express may be responsible for providing processing, settlement and billing of your American Express transactions. Under the PSP and One Point programs, processing, settlement and billing activities will be Intuit's sole responsibility unless you have entered into a Commercial Entity Agreement directly with American Express. Under the ESA program, processing, settlement and billing activities will be American Express' sole responsibility. You agree that at any time now or in the future, we may convert merchants processing under the ESA program to any American Express program wherein Intuit manages and retains control of all processing, settlement and billing functions for all American Express card transactions you process.
2. American Express's Use of Your Personal Information. You acknowledge and agree that American Express (including its affiliates, agents, subcontractors and employees) may use your information to perform their obligations under this Agreement, to promote or market their brand and/or services, perform analytics and create reports, screen and/or monitor your transactions for marketing, compliance and administrative purposes, or for any other lawful business purpose. You may opt out of certain marketing communications at any time through the privacy link in the Online Service Center.
3. American Express's Independent Right to Termination. You acknowledge and agree that in addition to Intuit, American Express retains a right, in their sole discretion, to terminate your right to accept and process American Express cards pursuant if you are found in violation of their Rules.
PIN DEBIT CARD PROCESSING
1. Network. We reserve the right to determine which network we use to process all your transactions. Depending on the network that we select, any rewards, points or benefits associated with a particular card or network may vary. We are not responsible for providing you or your customers with any rewards, points or benefits from any transaction.
2. Your Obligations for PIN Debit. Unless otherwise authorized by Intuit, you agree to use Intuit system compatible terminals, PIN pads or systems capable of processing all ACH debit card transactions as well as online debit card transactions. You are solely responsible for all paper copies of debit card transactions, in accordance with the applicable debit card network rules. Within one (1) business day of the transaction date you agree to balance each location to the system for each business day that such location is open. You agree you are solely responsible for all telephone costs, if any, which may be incurred by you for the debit card services as well as expenses related to installation of and training in the use of terminals. You agree that you are responsible for entering data correctly. If an entry is made incorrectly, we will use reasonable efforts to assist you in correcting the entry, but cannot guarantee it will be corrected.
3. PIN Security. You are prohibited from requesting PIN numbers verbally or in writing as a condition of a sale. You may not document or retain PIN numbers. You agree to position POS terminals so as to be PIN entries cannot be reasonably viewed observed by third parties. You may use Pin Entry shielding devices. You are prohibited from using security cameras to view the PIN pad. The operational placement and use of the Tamper Resistant Security Module (TRSM) must be within its intended physical and logical environment. POS terminals designed for indoor use are not suitable for outdoor use. The modification of TRSMs from their original manufactured specifications must be restrained.
ELECTRONIC CHECK SERVICES/CHECK PROCESSING
1. Service Description. You may use the Electronic Check Services to automate the processing of original paper checks you receive from your customers (i.e. payors) for payment of goods or services sold or provided by you. Intuit will submit such the checks or electronic images thereof (each an "Item") to a check clearing system and will deliver the collected funds to your Bank Account. Separate Electronic Check Services fees as set forth in the Merchant Application and/or the Pricing Schedule apply to your use of the Electronic Check Services.
2. Establishing Service. You are responsible for obtaining the necessary hardware and software need to use our Electronic Check Services, and agree to only such hardware and software approved by Intuit. We will provide you with the software you will need to process checks using our Electronic Check Services. You agree that we are not responsible for any damages incurred by you or any third party as a result of any failure of electronic check processing equipment or hardware. If you request software for equipment not provided by us, we at our sole discretion may elect to fulfill such request and you agrees to pay Intuit a reprogramming charge in an amount determined by us. You agree to comply with customer notifications regarding electronic check processing by complying with our policies and any instructions provided in customer welcome kits, including posting of notification decals, etc.
3. Eligible Checks; Restrictions. You agree only to submit "Eligible Checks" to us for processing. To be an "Eligible Check", a check submitted to us for processing must: (a) be drawn on a payor or check writer's personal or business account (and must not be drawn on your named account or an account otherwise controlled by you or an affiliate); (b) be drawn on a U.S. financial institution in U.S. currency;(c) be a first-party check made payable to you;(d) not have been previously negotiated; (e) not have been previously voided;(f) contain a pre-numbered serial number, except in the case of permitted check writer not present transactions processed via the ACH network in compliance with all other authorization and other requirements. You acknowledge and agree that credit card convenience checks, starter checks, traveler's checks, payroll checks and third party checks are not "Eligible Checks." Even if a check is an Eligible Check, we may, at our sole discretion, decline to accept a check for processing. Before submitting a check for processing using Electronic Check Services, you agree to endorse the check with the legend "For Deposit Only." You agree you will only create check images and submit Items from locations in the United States or United States territories, and all checks must be in U.S. dollars and drawn on a bank in the United States. For each electronic image of an check, all information from the front and back of the check, including the MICR information and payment amount, must be accurate and legible and must accurately represent all information on the front and back of the check at the time of conversion to an electronic image. You agree to use key entry, as necessary, to correct any errors so that the electronic information submitted is accurate. You agree you will not redeposit any Item previously transmitted by you with Intuit or any other bank and will employ commercially reasonable security measures and firewalls sufficient to protect data transmissions and storage to ensure no unauthorized access or duplicate presentment of checks.
4. Settlement. Intuit will credit your Merchant Account for cleared checks, generally within two (2) business days of our receipt of payment, if check is submitted by a certain cut-off time. Settlement of check using Electronic Check Services may take longer, for example, due to operational and clearing system delays, risk investigations and other factors. You authorize us to submit ACH debits against you Merchant Account for any Item that was previously paid and later returned or dishonored, plus any fees or other amounts owed by you under this Agreement.
5. Your Rights to Additional Representations and Warranties for Electronic Check Services. You agree that once an electronic image of a check is transferred to us, you will no longer have any rights with regard to the check, provided however that if a check for which you have been paid is subsequently dishonored or reversed, you will then retain the rights to the original check. You represent and warrant that no person will receive a transfer, presentment, or return of, or otherwise be charged for, a check (either the original check, or electronic or other representation of the original check) such that a payor will be asked to make payment based on a check that has already been paid. You agree to waive all rights to bring a claim, including without limitation a claim of conversion, against Intuit, our sponsor bank, or third party agents, for checks submitted for processing.
7. Implied Termination of Electronic Check Services. If you do not use the Electronic Check Services for a period of 60 days or more, you may be required to re-qualify for the continuation of Electronic Check Services.
CHECK VERIFICATION SERVICES
1. Service Description; No Guarantee. Intuit uses the National Check Network® database and/or other risk management systems to provide you Check Verification Services and information that will help you decide whether or not to accept a check. To use the Check Verification Service you will need to provide the check MICR information, and if requested by us, the payor or a check writer's drivers license number. Intuit does not guarantee the accuracy or completeness of the information and we disclaim all representations and warranties, expressed or implied, regarding the information you receive under the Check Verification Service. You agree that there will be no payment to you by Intuit for any loss from a check payment transactions processed using the Check Verification Service. You acknowledge and agree that you assume all risk that checks accepted by you may be dishonored.
2. You Refusal to Accept a Check. If you decline to accept a payor's check based on information you receive using the Check Verification Service, you agree to provide a payor a denial notice, substantially similar to our model forms. Any denial notice must include our contract information so that a payor can submit inquiries relative to the nature of their information in our database.
3. Use of Verification Information; FTC Notice. You agree to use the Check Verification Service in conjunction with a legitimate payment transaction and that the information we provide you will be used for no other purpose. You acknowledge and agree that you have received and read the information prepared by the Federal Trade Commission located at http://www.ftc.gov/os/2004/11/041119factaapph.pdf, which describes your obligations under law regarding the safeguarding and use of a payor's checking information.
4. Use of Check Writer Information. To enhance the effectiveness of the Check Verification service, Intuit continuously collects and enhances information regarding check-writing activity. As a condition of using the Check Verification Service, you agree and authorize Intuit to update the data sources used by us with a check writer's information. You agree and acknowledge that other merchants also using the Check Verification Services may utilize check writer's information.
5. Special Indemnification Applicable to the Check Verification Service. You agree to indemnify, defend, and hold Intuit and harmless from any and all claims, complaints, damages, court costs and related expenses, including attorney's fees, arising out of or related to: (1) inaccurate check writer information provided by you to us; and (2) any acts or omissions of or failure to comply with applicable law by you, your employees and agents in connection with the Check Verification Service.
6. Posting of NCN Decal. You agree to conspicuously post an NCN decal at each of your point of sale locations indicating that you are using the NCN database for check verification.
CHECK GUARANTEE SERVICE
1. Description of Services; Guarantee Limits. Intuit will purchase 100% of the face value of a check processed using our Check Guarantee Services up to a designated amount ("Check Limit"), provided that your payment transaction meets the qualifying requirements below ("Guarantee Conditions"). Separate Check Guarantee Services fees as set forth in the Merchant Application and/or the Pricing Schedule apply for your use of the Check Guarantee Services. You acknowledge and agree that we may, at our sole discretion, increase or decrease your "Check Limit" upon notice to you.
2. Guarantee Conditions. For checks to qualify for processing, you must comply with the following Guarantee Conditions: Merchant must process check transactions electronically and comply with the Additional Terms for our Electronic Check Services and Check Verification Services (see above).
- You must submit all eligible personal and business checks submitted to you by a check writer for processing using the Check Guarantee Services.
- The check writer's name and complete MICR line information must be pre-printed on the check using a check printer.
- The numerical dollar amount and the written dollar amount on the check must be identical.
- The date written on the check must be the same as the date on which the Transaction occurred;
- Check writer must sign the check and the signature in the signature block must be substantially the same as the name imprinted on the check.
- The signature on the check must reasonably correspond to the signature on check writer's driver's license.
- Any alterations of a check must be initialed by the check writer.
- The check writer must have its complete residence address and residence phone number (including area code) preprinted or legibly printed on the check. The residence address must be within the United States. If the preprinted address is a P.O. Box, general delivery, APO, FPO, etc., the street address from the check writer's driver's license must be legibly printed on the check by Merchant.
- You must verify the check writer identity and ensure that the check writer's physical appearance reasonably corresponds to the image and physical description of check writer on his or her driver's license.
- You must submit the check for approval on the date that the transaction occurs. You may not use the Check Verification Services to process pre-dated and post-dated checks.
- Merchant must collect and electronically submit to us (by either swiping or keying) the check writers driver's license or information during authorization.
- The check and required check writer information must be read electronically in a manner approved by us and submitted electronically to us as an electronic Check Guarantee transaction for approval and must receive an approved authorization response for us prior to accepting a check.
- A check transaction that is otherwise eligible for a Check Guarantee may become ineligible for a number of reasons related to the transaction. For example, the following matters will disqualify an otherwise eligible check guarantee transaction:
- You do not deliver the goods or services;
- A check writer's return of goods or services;
- A check writer's claim that your goods or services are defective or otherwise unsatisfactory, including a check placed on stop payment;
- Check writer claims that the check was negotiated, in full or in part, for cash or cash equivalent (i.e. money order, travelers check, etc.), payment on an open account, as a replacement for a check or debt already owed to the Merchant;
- Your breach of this Agreement
- You acknowledge and agree that you will strictly comply with all Guarantee Conditions and you understand that strict adherence to this Agreement is essential to avoid Chargebacks of checks processed using the Check Verification Services.
3. No Attempted Circumvention. You agree not to take any action to circumvent our ability to assess the risk of a check transaction you submit for Check Guarantee Services, such as by submitting multiple small check amounts in lieu of a single check with a large dollar amount.
4. Assignment of Ownership for Returned Check Transactions. You assign to Intuit all of its rights and interests for check transactions you have processed and received payment for using our Check Guarantee Services. You acknowledge and agree that Intuit shall have the right to forward any returned checks to a collection agency or legal service for collection and to collect any Return Check Service charges. You further agree to execute all documents reasonably required by Intuit to evidence the transfer of such interests.
5. Chargeback of Guarantee Amount. If we determine that we paid you for a transaction that was subsequently shown to be ineligible for a guarantee payment, you agree that we may initiate a debit to your Merchant, Bank or other accounts in the amount of such ineligible payment. In addition to the conditions under which a check may become ineligible for guarantee payment as set forth above, the following additional conditions may result in a reversal of a guarantee payment: your error in processing the check, including but not limited to key-entry error of the check amount or the check writer driver's license information; your Merchant Account not being current; or not delivering to us a legible copy of the signed check writer receipt within five (5) business days of our request for evidence of the check writers signed authorization.
6. Merchant Bears Payment Risk for Transactions that are Not Eligible Check Guarantee Transactions. You acknowledge and agree that you bear the risk of non-payment for transactions that are not eligible for guarantee payments initially, or that become ineligible. An authorization response provided by us is not guarantee that you will receive payment.
7. Forwarding of Ineligible Returns. We will automatically provide ACH or Agency Collection Services, as applicable, (together "Collection Services") for returns that are not eligible for Check Guarantee Services. You agree to comply with the Collection Services terms, including the obligation to post notice of returned check service charge that a check writer may incur.
8. Risk Management Settings. You acknowledge that we maintain a proprietary risk management system for our Check Guarantee Services. We do not represent that a check is "good" or "bad" nor do we make a credit decision or assessment of a particular check writer's creditworthiness. You hereby acknowledge and agree that we may make adjustments to the risk management settings, without prior notice to you and as we deem necessary. You agree to indemnify us for any claim by a third party as a result of such adjustments.
9. Compliance with Guarantee Conditions. Merchant further acknowledges and agrees that Merchant's strict compliance with all Guarantee Conditions is material to Merchant avoiding Chargebacks under this Agreement.
ACH REPRESENTMENT SERVICES
1. Service Description. Intuit will resubmit for payment to you all returns or reversals that result from insufficient funds or uncollected funds. If we successfully collect on a re-initiated check transaction, we will remit the face amount of the collected check transaction to you within five (5) days of re-initiation. If an ACH Representment Service transaction that we have funded is subsequently reversed, we will reverse any payment we previously made to you and you will be liable to us for such amount.
2. Not a Guarantee of Payment. You understand and agree that payment of returns does not constitute a guarantee and that the check writer has the right to contest the check transaction.
1. Description of Services. You acknowledge and agree that we are acting on your behalf to collect payment for transactions not successfully processed. The Collection Services are provided by Intuit and third party licensed collection agencies acting on our behalf. You are eligible to use Collection Services in combination with another Electronic Check services. We will automatically provide Collection Services for ineligible guarantee returns. If you subscribe to the Electronic Check Guarantee Services, separate Collection Services fees as set forth in the Merchant Application and/or the Pricing Schedule shall apply.
2. Checks Eligible for Collection Services. We will attempt to collect ineligible checks returned for a reason code other than for stolen or forged checks, or checks for which numeric and written amounts differ. Checks will be automatically submitted for collection by our check systems. You acknowledge that we have the right to seek collection of a check for a minimum of 90 days from the date of our receipt of a check transaction. This right shall survive termination of the Collection Services, or the term of this Agreement.
3. No Independent Collection of Checks Submitted for Collection Services. You agree not to seek collection of payments for unpaid checks that have been submitted to us for collection. If a check writer made a payment directly to you after you submitted their check for collection, you agree to promptly pay Intuit all fees we would have been entitled.
4. Merchant Cooperation in Collection Activities. Merchant agrees to cooperate fully with Intuit in obtaining payment for checks submitted to Intuit for collection, including providing transaction documentation, providing documentation of the products or services rendered, and supplying any other reasonably required information.
5. Assignment of Collection Activities. You acknowledges and agrees that we may assign accounts to another collection service or legal service without obtaining your prior written consent.
6. Special Indemnification Applicable to Collection Services. You agree to indemnify, defend and hold Intuit and its affiliates harmless from any damages, court costs and related expenses, including attorney's fees, if you accept payment or returned check service charges for an outstanding, unpaid check you submitted to us for collection without obtaining instructions or authorization from us prior to doing accepting payment.
7. Right to Cease Collection Activity. Intuit retains the right, in its sole discretion, to cease or stop all collection activity for any reason.
GIFT CARD SERVICES
1. Description of Service. The Gift Card Service enables electronic processing of gift card transactions and purchases made by a payor who holds an approved gift card ("Gift Card"). We will electronically confirm that a Gift Card presented to you is an active account using the Intuit electronic Gift Card processing system ("Gift Card System") and has sufficient funds to pay for a purchase. You understand and agree that an electronic authorization by us indicates only the availability of sufficient value on a Gift Card at the time of authorization and does not guarantee payment. Intuit will enable electronic debiting and crediting of a payor's Gift Card account when value is added or deleted to the payor's Gift Card account. Intuit will maintain an accessible electronic record of transactions. We will provide to and accept from you all information and data reasonably required from time to time in connection with the Gift Card Services. Separate Gift Card Services fees as set forth in the Merchant Application and/or the Pricing Schedule that apply to your use of the Account Updater Services. To be eligible to use the Account Updater Service, you must meet the following requirements.
2. Your Obligations. You agree to accept for processing any transaction initiated by a customer using a Gift Card without discrimination or regard to the customer who initiated the transaction or the terminal at which a transaction was initiated. You agree to exchange Gift Cards for cash, when required under applicable law. You agree to obtain, operate, and maintain at your own expense the Card Terminal and you are solely responsible for the accuracy and adequacy of all data transmitted by it or on its behalf for processing by or storage of information on IPS the Gift Card System. You agree to maintain sufficient "back-up" information and data to reconstruct any information or data loss due to any system malfunction and for reconciling your records with our reports and promptly notifying us of any discrepancies. You are responsible for all costs relating to the sale and distribution of Gift Cards and for associated marketing or advertising. You agree to bear all risk of loss, theft, alteration or damage to, or fraudulent or improper or unauthorized use of any Gift Card terminal upon the time of delivery of Gift Cards ordered through us or if ordered through a third party (with consent our consent).
3. No Surcharge. You agree not to charge your customers increased fees, surcharges, or any other premiums for a Gift Card transaction, or for a customer's use of a POS terminal, or the operation of the system unless such surcharges are permitted by applicable laws or regulations.
4. Your Right to Termination. You may terminate the Gift Card Services if the operation and administration of the Gift Card System is held to be illegal by any applicable judicial or regulatory authority. You will however not be entitled to a refund of any fees, charges, or other amounts paid to Intuit. You are solely responsible to notify your customers of any balance owed to the customer by you. Any refunds or Chargebacks arising from the unused portion of a Gift Card after termination are your sole and exclusive responsibility.
5. Gift Card System Downtime. You understand and agree that in the event that the Gift Card System is not able to verify transactions, Intuit will not process Transactions. You accept sole responsibility for any Transactions you authorizes under such circumstances. Merchant will indemnify and hold harmless Intuit from and against any and all damages, loss, liability, consequential damage, expense, claim or obligation arising in connection with unauthorized transactions.