Thank you for selecting the payment processing 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 and you. This Agreement addresses important terms such as 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", "your", and "Merchant" collectively refers to you as an individual, together with the business entity on whose behalf you are acting and its designated agents, principals, guarantors, or owners. 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 to receive payments from your customers. In connection with enabling you to receive payments from your customers through the Services, you hereby appoint Intuit as your limited payments agent for the purpose of receiving, holding, and settling payments to you pursuant to this Agreement. You further agree and understand that a payment received by Intuit, on your behalf, satisfies your customer’s obligation to pay you, regardless of whether Intuit actually settles such payment to you. In the event that Intuit does not make any such payment to you as described in this Agreement, you will have recourse against only Intuit and not against your customer. 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 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 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 United States; must not be engaged in any illegal activity or any activity reasonably likely to cause notoriety, harm, or damage to the reputation of Intuit, our sponsor banks, and card or payment networks (such as VISA, MasterCard, American Express, Discover, JCB, NACHA, PayPal, and 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. If previously identified by VISA risk programs, you must self-disclose when the identification occurred and under what specific programs. You may only use the Services for the business and purpose described by you in your Merchant Application (see Section 6 below).
3. Your Responsibility. Intuit requires that a principal or owner of the business accept this Agreement and liability for all obligations of the business under this Agreement. You are confirming that you are either a principal or owner of your business and/or are authorized to act on the business' behalf. You agree and understand that Intuit's decision to enter into this Agreement and provide the Services is conditioned on both the principal or owner's personal financial stability and that of the business, and you hereby authorize us to conduct any necessary identity, credit, and financial status checks at any time, be it during the application process or throughout the term of this Agreement, to determine your and the business’ creditworthiness and/or ability to perform the obligations hereunder. Late payments, missed payments, non-payments, and other defaults on your Merchant Account may be reflected in your business' credit report and/or your 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 and account information, or to determine your current and ongoing creditworthiness, financial status, and/or ability to perform the obligations hereunder. This may include asking you to confirm your email address, mobile/phone numbers, or 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 account information for underwriting, identity verification, or fraud analysis purposes. 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, any third party to the extent such parties provide Services to you or us, or to comply with applicable law or investigation, including, without limitation, the USA 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; utility bills; or your personal or business tax returns. You consent to us updating your account information from time to time based on information provided by you, your bank, other payments services providers, or other reliable data sources used to evaluate the current status of the business and/or its owners.
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 Agreement") with one or more of our sponsor banks or card networks if your processing volume exceeds certain threshold amounts. A copy of the Commercial Entity Agreement can be found in our Legal Documents page which shall be in effect, and considered accepted by you, upon your exceeding such threshold amounts. 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 payment processing services application ("Merchant Application") and be approved by our underwriting system prior to your use of the Services. Once approved, you will be issued a Merchant Account (see Section 11 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. You agree to update us on an ongoing basis with: a list of principals, owners, or officers for your business including their home addresses, personal and business telephone numbers, and email addresses; all “Doing Business As” (DBA) names used by you; your business address and telephone number; the URL (web address) for your business; and a complete description of goods and services provided by your 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 such 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. In the event of any conflict between the terms of this Agreement and the Pricing Schedule, this Agreement shall control. All rates and fees are in U.S. dollars and subject to change; where you may become subject to any increase in rates or fees, we will provide thirty (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 posted terms. By continuing to access and use the Services after we have provided you any price changes, you are agreeing to such changes. 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 may incur price increases should you request changes to Service offerings, including, without limitation, moving Services from QuickBooks Online to QuickBooks Desktop, and you agree to pay the increased fee starting on the date of confirmation of your Service offering change. You agree to immediately pay us all fees set forth in your Merchant Application, the applicable Pricing Schedule, and/or in other provisions of this Agreement. 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 by different means, including but not limited to: netting against the proceeds of your processing activity; 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. If you wish to dispute payment to, or collection by Intuit of any fee, you must provide written notice of such dispute within forty-five (45) days after you received a statement containing the fee, as described in Section 15 below.
8. Limits. We may 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). 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 transaction limits, and/or to suspend or terminate your Merchant Account in the event of over-limit transactions.
10. Bank Account. You will need to establish and maintain a debit-enabled account ("Bank Account") at a U.S. depository financial institution to facilitate payment of fees to Intuit and the transfer of amounts due to you from your Merchant Account. 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 may take reasonable steps to verify your Bank Account information, for example, by requiring you to provide us a cancelled check or by debiting and crediting 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. Following approval of your Merchant Application, you must open a merchant service account with us ("Merchant Account") to use the Services. The proceeds from your card and other payment transactions processed using the Services ("Settlement Funds") will be recorded in your Merchant Account and we will 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 ("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 Commercial Code (and, to the extent applicable, the Commercial Code or laws of any other jurisdiction). If you owe a debt to us, either now or in the future, you grant a security interest in all of your various accounts (standing in the name of Merchant alone or in a joint account, including any affiliated companies of Merchant, whether established or maintained pursuant to this Agreement or not) to us to secure any such debt. You agree that we may use funds in any of your accounts to pay all or part of any debt you owe to 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 to you at any time under this Agreement or any other agreement between us from your Merchant Account, regardless of the source of such funds; (b) all funds at any time in the Reserve Account, 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 amounts that may be due to you, or that may become due to you, under this Agreement or any other agreement between us, including, without limitation all rights to receive any payments or credits under this Agreement (collectively (a) – (f), the "Secured Assets"). Upon our request, you agree to provide additional security interests and liens to us 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 and enforce these security interests and liens without notice or demand of any kind to you, including but not limited to, by making immediate withdrawals from, 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 interests and liens, and agree that we may file or record any such financing statements or related documents. You represent and warrant that no other person or entity has any security interest in any of the Secured Assets. With respect to our security interests and liens, we will have all rights afforded under the California Commercial Code and, to the extent applicable, the Commercial Code or laws of any other jurisdiction, or in equity. You must obtain written consent from us prior to granting a security interest of any kind in any of the Secured Assets to any third party. You authorize and appoint us as your attorney-in-fact to sign your name to any financing statements used in connection with any security interests and liens 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 we 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 two hundred and seventy (270) days or longer after the termination date or after the date of your last transaction, depending on your product and business practices. After such time, any balance that remains in the Reserve Account will be returned to you unless the funds are subject to an investigation related to potential fraudulent transactions, or if such funds are subject to Commercial Code lien demands, tax levies, enforcement of judgment proceedings, restraining notices, or other legal process or demands made or known to us. Unless expressly agreed 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 the Merchant to establish, increase, or maintain funds in the Reserve Account. We may deposit into the Reserve Account funds we otherwise would be obligated to pay you, for the purpose of establishing, increasing, or maintaining the Reserve Account in accordance with this Section 13, 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 any actual or potential losses resulting from any payment transactions initiated by you, from any claims asserted against you, your Merchant Account, or your Reserve Account, and from any claims asserted against us based on your conduct related to this Agreement. We may, without notice to you, apply funds deposited in your Reserve Account against any outstanding amounts you owe to us under this Agreement or under 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 recoupment and set-off.
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 otherwise would 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 and/or your bankruptcy estate to provide adequate protection under Bankruptcy Code Sections 362, 363, and 364, or otherwise to us, you must create, maintain, or increase the amounts in a Reserve Account as required by us, and we will have the right to offset and recoup against the Reserve Account for any and all obligations which you may owe to us, without regard to whether the obligations relate to payment transactions initiated or created before or after the filing of the bankruptcy petition, to the fullest extent permitted by law.
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 forty-five (45) days after you received a statement containing the asserted error. If you fail to notify us within forty-five (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 if we conduct one, 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.
16. Chargebacks. Customers may 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 determine the ultimate resolution of a Chargeback. Your customers may be able to successfully charge back a transaction even though you have provided your goods or services to the 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, including VISA and MasterCard chargeback arbitration fees. You authorize us to offset from incoming transactions and to debit your Merchant Account, Bank Account, and/or the Reserve Account to recover any Chargebacks plus any applicable Chargeback fees imposed by us or a third party, including VISA and MasterCard chargeback arbitration fees. You agree to fully cooperate with us in complying with the Rules (as said term is defined in Section 20 below) regarding Chargebacks, including any request for documentation. We may suspend the Services and stop releasing funds 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 of the Services, as well as additional excess Chargeback fees that might be imposed by our sponsor banks and card or payment network. "Excessive Chargebacks" means chargebacks during any monthly period and for any one of your terminal identification numbers or merchant identification numbers, including: (a) Chargebacks and/or retrieval requests in excess of 1% of the average monthly dollar amount of transactions; (b) ACH unauthorized returns in excess of 0.5% or returns in excess of 3% of the average monthly dollar amount of transactions; or (c) processing an average transaction above the processing limits or amount approved by us. You authorize us, upon the occurrence of Excessive Chargebacks, 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 law enforcement and any other third party including but not limited to the card or payment networks, such as for inclusion into VISA Terminated Merchant File, MasterCard MATCH, or any other prohibited merchant list in the event of fraud, counterfeit, unauthorized transactions, highly suspect activity, Chargebacks, Excessive Chargebacks, or if we terminate your access to Services. You agree to such reporting and waive any claims against Intuit as a result of such reporting.
18. Unusual Activity; Holds; Risk Reviews. If we believe there is unusual activity on your Merchant Account, we may, in our sole discretion, temporarily suspend your access to Services, move your Settlement Funds into a Reserve Account, place holds on your Settlement Funds that delay or suspend disbursement, and/or terminate Services. Unusual activity includes, but is not limited to: (a) changes in your average transaction amount or processing pattern; (b) monthly percentage of different transaction types; or (c) Excessive Chargebacks. We may, in our sole discretion, place holds on your transactions or Merchant Account to otherwise protect against potential risk or fraud. Reasons for holds are proprietary to Intuit and may be based on multiple factors, including, but not limited to: (i) no or limited payments processing history with Intuit; (ii) past performance or standing of your Merchant Account, including return or dispute rates; or (iii) sales of higher risk goods or services. You understand and agree that our evaluation of risk may result in your ineligibility for certain Services, such as those enabling faster funding than standard deposit timing. We will notify you in the event that you do not qualify for these Services and/or if you later become eligible. Intuit also reserves the right, in its sole discretion, to review and either clear or cancel each transaction. If a transaction is cleared after review, we will provide notice to you. Otherwise, we 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 hold, review, or other delay or suspension of funds disbursement. If we hold or review a transaction, you acknowledge that your customer's product or service must be delivered just as if you have been paid. Further, if a transaction is subject to a hold or review, you acknowledge that fees associated with the transaction will be charged.
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 restricts use of the Services in connection with certain types of prohibited merchants, activities and business types, and transactions. If you are engaged in any of the prohibited merchant categories, activities and business types, or transactions described in our Acceptable Use Policy, you are not eligible (or may become ineligible) to use the 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 apply to you, you agree to use the Services in a manner consistent with such policies and to provide any information we deem necessary to verify your compliance with such 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: (a) 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 (b) you are not listed on any U.S. government list of prohibited or restricted parties. 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 applies to transactions processed using Automatic Clearing House ("ACH") (collectively, "Rules"). The Rules are incorporated into this Agreement by reference. The current versions of the Rules may be viewed on Legal Documents page. 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"). Specific to NACHA Rules, you agree to obtain customer consent to debit or credit their bank account and initiate a transaction over the ACH network. Such consent must be in a form and manner that complies with NACHA Rules and the documentation for ACH transactions.
21. Prohibited Processing Practices. 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 a prepayment in a card transaction completed in accordance with Section 23 of this Agreement and any applicable Rules.
- You may not separate goods and services purchased in a single transaction at one time on different transactions or payment receipts, except: (a) for purchases in separate departments of a multiple department store; (b) for installment payments; or (c) for delayed or amended charges governed by Rules for travel and entertainment merchants and transactions.
- You may not use the Services to accept amounts representing the refinancing of an existing uncollectible obligation, debt, or dishonored check of a customer.
- You may not 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 may not present for processing or credit any transaction you know, or should know, to be fraudulent or not authorized by a cardholder, payor, or customer.
- You may not receive 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 may not 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 may not deposit duplicate transactions and will be solely responsible for the full amount of any duplicate transactions.
- You may not 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.
- You may not disburse funds in the form of traveler’s checks, if the purpose is to allow the payor or customer to make a cash purchase of goods or services rendered back to the issuer.
- You may not add any tax or surcharge to transactions, unless applicable law expressly allows or requires you to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount must be included in the transaction amount and shall not be collected separately.
22. Web, Phone, and Mail-Based Processing and Recurring Payments; Lodging and Vehicle Rental Transactions. If you accept payment by web ("IO"), phone ("TO"), mail ("MO"), or pre-authorized ("PO") order, a transaction receipt may be completed without the cardholder's or payor’s 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 "IO","TO", "MO", or "PO" as appropriate. Your name and the city and state of your business must also be included. Receiving an electronic authorization shall not relieve you of liability for Chargebacks on any transaction for which you did not obtain an imprint and the cardholder's signature. You agree to use reasonable procedures to mitigate payment card and identity fraud. 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 request either written or in another form, from a customer for such goods and services to be charged to the customer's account, and such 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 to obtain sufficient authorization from your customers under the applicable rules of any card or payment network, including NACHA Rules, before storing their payment instrument or account details. 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 the written request to a cardholder's issuing bank upon request and must retain a copy of written request for one (1) year after the agreement between you and the payor is terminated. For multi-year agreements, you shall renew written request with the cardholder annually during the 12th month of the current agreement. For lodging or vehicle rental transactions, you must estimate and obtain an electronic authorization for the amount of the transaction based upon the cardholder's intended length of stay or rental. Additional electronic authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount.
23. Prepayments. You agree that a transaction shall be presented to us for processing prior to delivery of goods or services, only where, at the time of the transaction, the cardholder agrees. Where customized, special order customers must agree to a properly disclosed delayed delivery terms for the goods or services. You agree that when authorization for delayed presentment is provided, the word “Prepayment” or something substantially similar must be disclosed to the cardholder. Additionally, you agree to provide and obtain consent to all of the following in writing at the time of the first, or only, partial prepayment, or at the time of full prepayment:
- Description of promised merchandise or services;
- Terms of service;
- Timing of delivery to cardholder;
- Transaction amount;
- Full cancellation and refund policy including date and time that any cancellation privileges expire (partial) or refund (full prepayment) without prepayment forfeiture;
- Total purchase price; and
- Any other charges (e.g., taxes).
Furthermore, the transaction receipt must include all required receipt elements plus the following prepayment content:
- Prepayment amount;
- For cancellations, the cancellation confirmation;
- For partial payments, the word “Deposit” or “Partial Payment”;
- For balance payments, the word “Balance”; and
- For full prepayment, the word “Prepayment” and the scheduled start date or delivery date of merchandise or services.
24. Use of Card Network Trademarks and Other Payment Program Marks. You must prominently display the promotional materials provided by us at your place(s) 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 but 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 their applicable Rules.
25. 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 whether the card is valid; (b) obtain an electronic approval or authorization (see Section 27 below) before completing a sale, 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 a web, phone, mail, or preauthorized order; (c) have reasonable practices in place to verify the cardholder's or payor's identity; (d) 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 (e) be able to reproduce without alteration a legible receipt containing the cardholder's name, account number, expiration date, and your business name and location. You may establish a minimum transaction amount for accepting credit card transactions so long as such amount does not exceed U.S. $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.
26. Your Return Policy; Adjustments, Credit Vouchers. You agree to post your exchange or return policy in accordance with applicable Rules. If any of the following are applicable when merchandise is returned, you must disclose it to your customers before a payment transaction is processed: (a) no refund, or less than a full refund, will be given; (b) returned merchandise will only be exchanged for similar merchandise of comparable value; (c) 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's 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's 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 to cover the amount of the transaction and any related fees.
27. 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 must request a voice authorization from a designated authorization center, and legibly print the authorization number on the customer receipt and on your copy of the receipt. 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 will be 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's 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 have warranted 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 and information security and confidentiality requirements for at least three (3) years following the date of completion of a card or other payment transaction (or a longer period if the Rules require).
28. 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 our 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 timeframe may result in the transaction in question being charged back or us refusing to process said transaction.
29. Policy Violations; Action Upon Termination for Cause. If Intuit incurs any damages because you violate our policies, this Agreement, the Rules, any applicable laws, or otherwise cause Intuit to incur any expenses, we may terminate this Agreement and: (a) hold your funds up to two hundred and seventy (270) days; (b) fine you for each such violation; and (c) 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 U.S. $2,500.00 ("Set Damages") for violations of our Agreement is presently a reasonable minimum estimate of Intuit's damages. This Set Damages amount 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 U.S. $500 per fine or penalty. Intuit may deduct the Set Damages and any fines, penalties, and fees directly from any existing balance in your Merchant Account, Bank Account, or Reserve Account.
30. Data Security (PCI Compliance); Payor/Cardholder Personal Information. The card networks (such as VISA and MasterCard) and the payment networks (such as the 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") define 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 require a cardholder to complete a postcard or similar document that includes the cardholder’s account number, card expiration date, signature, or any other cardholder account data in plain view when mailed. 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 will immediately notify us and provide us with detailed information relating to the breach or compromise. You may not request or use a cardholder or payor account number for any purpose other than as payment for its good or services rendered. 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. You agree that any service providers you may use for accessing, storing, transmitting, and processing cardholder data on behalf of Intuit, or any service provider you may use that controls or could impact the security of cardholder data, must be registered as authorized agents and Intuit must be notified of them. Furthermore, all agents must acknowledge compliance with PCI DSS.
Additionally, if you receive a user identification name or password from us to access our database or use the Services (the "Account Access Password"), you will: (a) keep the Account Access Password confidential; (b) not allow any other entity or person to use the Account Access Password or gain access to our database; (c) be liable for all action taken by any user of the Account Access Password; and (d) promptly notify us if you believe the Account Access Password has 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 our 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 Account Access Password) shall be your responsibility.
31. Your Insolvency; Bankruptcy. You must immediately notify us of your insolvency or of any bankruptcy, receivership, assignment for the benefit of creditors, or similar action or proceeding initiated by or against you, whether or not such action or proceeding is under court supervision. Unless prohibited by applicable law, we have the right to terminate this Agreement upon the commencement of any such of these actions or proceedings, or upon your insolvency. You will include us on the list and matrix of creditors as filed with the Bankruptcy Court or as filed or submitted in any other insolvency-related action or proceeding, whether or not a claim by us may exist at the time of filing or commencement of such proceeding; failure to do so will also be cause for immediate termination of this Agreement or for any other action available to us under this Agreement, under applicable Rules, or under 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 or any other insolvency-related proceeding or otherwise, without our expressed written consent.
32. Taxes. You are responsible for all taxes and other charges imposed by any governmental authority in connection with your use of the Services. You are solely responsible for determining any and all taxes assessed or required to be collected, and/or paid by you in connection with your use of our Services. Intuit may be required by law to report certain transactions that meet certain Internal Revenue Service ("IRS") requirements.
33. 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, also known as the MSC. We will communicate with you mainly through the MSC 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 via the MSC, SMS/text, and email, and/or may make communications available to you by posting them at one or more of our websites. If you decide that you do not want to receive future communications electronically, write to us at Intuit Payment Solutions, 21650 Oxnard St., Suite 2200, Woodland Hills, CA 91367, Attn: Customer Care Director or by contacting customer care. If you do not provide your consent to receive electronic communications, other than tax statements, Intuit reserves the right to discontinue the Services or close your account. 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. If you have consented to receive electronic communications but also wish to receive paper copies of any communication (except communications relating to chargebacks), you may request such copies, which will be sent via U.S. mail.
34. Intuit's Use of Your Information. You agree that Intuit may maintain and use your information in accordance with Intuit's Privacy Statement posted on the Service’s website. 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 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, or card or payment networks if we suspect fraud or unusual activity, for any debt collection purpose, or as otherwise specified in this Agreement. Intuit may provide merchants with optional recommendations or tips intended to help optimize their businesses, which may be based on transaction history and performance. You agree that Intuit may use your transaction history and performance data for this purpose. For merchants processing American Express, you agree that we may provide American Express with your information for marketing purposes. For merchants using PayPal, we may use your information to create an account on your behalf, solely for the purposes of enabling you to receive payments from PayPal.
35. Unclaimed Property; Compliance; Inactive Accounts. Any funds in your Merchant Account that we are unable to clear and/or settle to you for any reason, including your abandonment of your account or your failure to remedy any deficiencies in the information we are required to collect for anti-money laundering purposes, for (a) the applicable time period as mandated or allowed by applicable law, or (b) twenty-four (24) months, whichever is less, may be remitted to your state of residency or otherwise in accordance with applicable unclaimed property laws. We may also unwind transactions or direct funds to specially designated accounts pursuant to anti-money laundering, sanctions or other compliance requirements. 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.
36. Your Representation and Warranties. Without limiting any other warranties under this Agreement, you represent and warrant that: (a) you have the right, power, and ability to enter into this Agreement on your behalf and the business entity on whose behalf you are acting; (b) that all information you provide to us is current and accurate; (c) all transactions submitted by you are bona fide transactions and in compliance with the Rules, this Agreement, and applicable law; (d) you will fulfill all your obligations to your customers and will resolve any customer disputes or complaints directly; (e) 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 (f) your use of Services is in compliance with this Agreement. You agree (i) to comply with all applicable procedures related to accepting credit or debit cards, and (ii) 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.
37. Disclaimer of Warranties. YOUR USE OF THE SERVICES, AND ANY RELATED 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 SIXTY (60) DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. INTUIT AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS, LAWS, OR REGULATIONS.
38. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF INTUIT AND 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 AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; AND (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 AND ITS AFFILIATES AND SUPPLIERS, AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.
39. Use of Services with Your Mobile Device. Mobile access to the Services requires an active subscription, internet access, and may not be available for all mobile devices or telecommunication providers. You will need to check the Services website to ensure your mobile device and telecommunications provider is compatible with the Services. Intuit is not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by Intuit at any time with reasonable notice to you. 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.
40. Indemnity. You agree to indemnify and hold Intuit and 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.
41. Changes to this Agreement. We reserve the right to change this Agreement at any time and the changes will be effective when posted through the Services, on our website for the Services, the MSC, 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.
42. Suspension and Termination, Effect of Termination. Intuit may immediately, in its sole discretion and with or without notice or cause, suspend or terminate your Services and/or Merchant Account under this Agreement, including without limitation, if: (a) we have reason to believe that fraudulent transactions or other activity prohibited by this Agreement has occurred; (b) such action is necessary to prevent loss to us; (c) you violate any portion of this Agreement, including our Acceptable Use Policy; or (d) you appear on any card or payment network or other fraud, prohibited, or security reporting list. We also reserve the right to terminate any free, promotional subscriptions to QuickBooks you may have received in connection with your use of the Services. Additionally, VISA or other card or payment networks may suspend or terminate their Services to you under this Agreement with or without notice. Upon termination by Intuit for any reason, you must immediately stop using the Services. That means, for example, that you must cease requesting electronic authorizations, transmitting transaction receipts to Intuit, and using all card or payment network signage. Upon termination, any outstanding payments will become due. Any termination shall not affect Intuit's rights to any payments due. All Sections of this Agreement that by their nature should survive termination will remain in effect, including without limitation, accrued rights to payments, indemnification, confidentiality, warranty disclaimer, and limitations of liability. Additionally, all of your obligations under this Agreement, which arise or are incurred prior to the effective date of termination, shall survive termination.
43. California Consumer Privacy Act. For the purposes of the California Consumer Privacy Act ("CCPA"), Intuit shall be considered a Business and/or Third Party, as applicable. Where Intuit acts as a Third Party, you represent, warrant and covenant that all Personal Information provided or otherwise made available to Intuit is done so in compliance with applicable law, and that it has provided all necessary and appropriate notices and opt-outs, and otherwise has all necessary and appropriate rights, to enable Intuit to (i) share any and all Personal Information you provided with any Intuit company, including Intuit Inc. and any parent, subsidiary, affiliate, or related company of Intuit Inc. (collectively, the "Intuit Family Companies"), and (ii) use any such Personal Information in connection with any and all Intuit Family Companies' internal operations and functions, including, but not limited to, improving such Intuit Family Companies' products and/or services, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes. Notwithstanding the foregoing, the parties agree that the sharing of Personal Information between Intuit Family Companies does not constitute a "sale" of such Personal Information under the CCPA. Capitalized terms in this paragraph have the meanings given those terms under the CCPA.
44. 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.
45. 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 its reasonable control, including, but not limited to acts of God, power outages, failures of the Internet, or failures of banking or ACH networks.
46. No Assignment. You agree that you will not assign this Agreement or any payments due to you or that may become due to you hereunder to any third party, and that all indebtedness arising from all charges and transactions under this Agreement will be for bona fide sales of goods or services (or both) and free and clear of any liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that 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.
47. 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 this Agreement. The Federal Arbitration Act governs the interpretation and enforcement of this Section 47; the arbitrator shall apply California law to all other matters. All issues are for the arbitrator to decide, including issues related to the scope and enforceability of this arbitration provision. 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 47 shall survive expiration, termination, or recession of this Agreement. INTUIT AND MERCHANT AGREE TO ARBITRATE ALL DISPUTES BETWEEN THE PARTIES AS PROVIDED ABOVE, EXCEPT THAT 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 this 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’s legal address is located.
48. 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 California law, without regard to California's conflict of law principles.
49. General. This Agreement, including the Additional Terms below (to the extent such Additional Terms are applicable) and all documents referenced in Section 1 herein, 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 jurisdiction rules that any part of this Agreement is invalid, that Section will be removed without affecting the remainder of this 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.
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 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 to your use of these supplemental payment processing services.
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, to perform analytics and create reports, to screen and/or monitor your transactions for marketing, for 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 MSC.
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 under this Agreement if you are found in violation of their Rules.
PIN/PINLESS 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 you would receive 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 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 that PIN entries cannot be reasonably viewed 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 checks or electronic images thereof (each an "Item") to a check clearing system and will deliver the collected funds to your Bank Account.
2. Establishing Service. You are responsible for obtaining the necessary hardware and software needed to use our Electronic Check Services, and agree to use 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. If you request software for equipment not provided by us, we at our sole discretion, may elect to fulfill such request. 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. 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 (except as permitted by the Rules): (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; and (f) contain a pre-numbered serial number. 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. You further agree all checks must be in U.S. dollars and drawn on a bank in the United States. For each electronic image of a check, all information from the front and back of the check, including the MICR information and payment amount, must be accurate and legible as of 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 checks are submitted by a specific cut-off time. Settlement of checks 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 your 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 sixty (60) days or more, you may be required to re-qualify for continuation of Electronic Check Services.
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.
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 use the Intuit electronic Gift Card processing system ("Gift Card System") to electronically confirm that a Gift Card presented to you is an active account 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.
2. Your Obligations. You agree to accept for processing any transaction initiated by a customer using a Gift Card without discrimination of the customer or terminal where the transaction was initiated. You agree to exchange Gift Cards for cash when required under applicable law. You agree to obtain, operate, and maintain the Card Terminal at your own expense. 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 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 to promptly notify 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 assume all risk of loss, theft, alteration or damage to, or fraudulent, 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 our consent).
3. No Surcharge. You agree not to charge your customers increased fees, surcharges, or any other premiums for a Gift Card transaction, for a customer's use of a POS terminal, or for 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 determined to be illegal by any applicable judicial or regulatory authority. However, you will not be entitled to a refund of any fees, charges, or other amounts paid to Intuit and any refunds or Chargebacks arising from the unused portion of a Gift Card after termination are your sole and exclusive responsibility. You are also solely responsible for notifying your customers of any balance owed to the customer by you.
5. Gift Card System Downtime. You understand and agree that in the event the Gift Card System is not able to verify transactions, Intuit will not process transactions. You accept sole responsibility for any transactions you authorize under such circumstances. Merchant will indemnify and hold Intuit harmless from and against any and all damages, loss, liability, consequential damage, expense, claim, or obligation arising in connection with unauthorized transactions.
Last updated March 2, 2020