Merchant
Services
Merchant
Processing
Program
Guide
Merchant
Services
Merchant
Processing
Program
Guide
Preface
Thank you for selecting us for your payment processing needs.
Accepting Credit and Debit Cards provides a convenience to your customers, increases your customers’ ability to spend at your establishment, and helps speed payment to your account. Credit and Debit Cards present risks of loss and non-payment that are different than those with other payment systems. In deciding to accept Credit and Debit Cards, you should be aware that you are also accepting these risks.
The majority of this Program Guide presents terms governing the acceptance of MasterCard and Visa Credit Card payments. The Program Guide also includes a separate section containing pro-visions related to the acceptance of Interac Direct Payment transactions.
MasterCard International Incorporated (“MasterCard”) and Visa Canada (“Visa”) are associations of financial institutions that electronically exchange Sales Drafts and Chargebacks for credits and debits. (We will refer to both MasterCard and Visa as “Associations”). Sales Drafts are electronically transferred from financial institutions that acquire them from merchants such as yourself (these financial institutions are referred to as “Acquirers”) through the Association, to the financial institution that issued the Cardholder’s Credit Card (these financial institutions are referred to as “Issuers”). The Issuers then bill their Cardholders for the transactions. The Association charges the Acquirers interchange fees and assessments for submitting transactions into its systems. A substantial portion of the Merchant Discount Rate or Transaction Fees that you pay will go toward these fees and assessments.
In order to speed up the payment process, the Issuer transfers the funds back through the Association to the Acquirer at approximately the same time that the Issuer receives the electronic Sales Drafts. Even though the payments under this system are made simultaneously, all payments made through the Association are conditional and subject to reversals and adjustments. The Associations have developed rules and regulations (the “Association Rules”) that govern their member financial institutions in the procedures, responsibilities and allocation of risk for this process. The Association Rules and applicable laws give Cardholders and Issuers certain rights to dispute transactions, long after payment has been made to the merchant. These disputed transactions are referred to as “Chargebacks.”
We do not decide what transactions are charged back and we do not control the ultimate resolu-tion of the Chargeback. While an attempt can be made to reverse a Chargeback to the Issuer, the Chargeback can be reversed only if the Issuer agrees to accept it or the Association requires the Issuer to do so after a formal appeal process. Sometimes, your customer may be able to successfully charge back a Credit Card transaction even though you have provided your goods or services and are otherwise legally entitled to payment from your customer. While you may still be able to pursue claims directly against that customer, neither we nor the Issuer will participate in, provide information about the customer, or be responsible for such transactions.
You will be responsible for all Chargebacks and adjustments associated with the transactions that you submit for processing.
This Program Guide, together with your Merchant Processing Application (“MPA”) and the Schedules, Exhibits and Annexes thereto and if applicable, the Equipment Agreement con-tained herein (collectively, the “Merchant Agreement”), contains the terms and conditions under which we will provide services for Credit Card and Debit Card transactions. We will not accept any alterations or strike-outs to the Merchant Agreement. Please read this booklet completely as it contains important information.
General Terms
1. SERVICES . . . 3
2. OPERATING PROCEDURES; ASSOCIATION RULES . . . 3
3. CURRENT ACCOUNT . . . 3
4. SETTLEMENT OF CARD TRANSACTIONS . . . 3
5. FEES; ADJUSTMENTS; COLLECTION OF AMOUNTS DUE . . . . 3
6. CHARGEBACKS . . . 4
7. REPRESENTATIONS, WARRANTIES; LIMITATIONS ON LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGE . . . . 4
8. CONFIDENTIALITY . . . 5
9. ASSIGNMENTS . . . 5
10. TERM; EVENTS OF DEFAULT . . . 5
11. RESERVE ACCOUNT; SECURITY INTEREST . . . 6
12. FINANCIAL AND OTHER INFORMATION . . . 7
13. INDEMNIFICATION . . . 8
14. SPECIAL PROVISIONS FOR DEBIT: INTERAC DIRECT PAYMENT . . . 8
15. TERMS OF EQUIPMENT PURCHASE OR RENTAL . . . 11
16. CHOICE OF LAW; VENUE, WAIVER OF JURY TRIAL . . . 13
17. OTHER TERMS . . . 13
18. ADDITIONAL IMPORTANT INFORMATION . . . 15
18.1. Pre-Authorized Payment Plan Automatic Debit Program . . 15
18.2. Additional Fees and Early Termination . . . 15
18.3. Addresses For Notices . . . 15
18.4. Complaints . . . 16
19. DEFINITIONS . . . 17
Exhibit A — Equipment Lease Agreement . . . 19
Exhibit B — Operating Procedures . . . 22
1. MASTERCARD AND VISA ACCEPTANCE . . . 22
1.1. Card Descriptions . . . 22
1.2. Effective/Expiration Dates . . . 22
1.3. Valid Signature . . . 22
1.4. Users Other Than Cardholders . . . 22
1.5. Special Terms . . . 22
1.6. Delayed Delivery or Deposit Balance . . . 22
1.7. Recurring Transaction and Preauthorized Order Regulations . . . 23
1.8. Honouring Cards . . . 23
1.9. Deposits of Principals . . . 23
1.10. Displays and Advertising . . . 23
1.11. Cash Payments by and Cash Disbursements to Cardholders . . . 23
2. SUSPECT TRANSACTIONS . . . 23
3. COMPLETION OF SALES DRAFTS / CREDIT DRAFTS . . . 24
3.1. Information Required . . . 24
3.2. Mail/Telephone/Internet (Ecommerce) Orders . . . 24
3.3. Customer Service Telephone Numbers . . . 25
4. ACCOUNT INFORMATION SECURITY PROGRAM . . . 25
5. AUTHORIZATIONS . . . 26
5.1. Authorization Only via Telephone (Voice/VRU Authorizations) . . . 26
5.2. Electronic Data Capture via Touch Tone Phone (IVR) . . . . 26
5.3. Authorization via Electronic Devices . . . 27
5.4. Third Party Authorization System . . . 27
5.5. Automated Dispensing Machines . . . 27
5.6. Pre-Authorization for T&E (Travel & Entertainment) and Restaurant Merchants . . . 27
6. SUBMISSION/DEPOSIT OF BATCHES . . . 27
6.1. Submission of Sales for Merchants Other Than Your Business . . . 27
6.2. Timeliness . . . 27
7. SETTLEMENT . . . 27
8. REFUNDS/EXCHANGES (CREDITS) . . . 27
8.1. Refunds . . . 27
8.2. Exchanges . . . 28
9. RETENTION OF RECORDS FOR RETRIEVALS AND CHARGEBACKS . . . 28
9.1. Retain Legible Copies . . . 28
9.2. Provide Sales and Credit Drafts . . . 28
9.3. Ensure Proper Retrieval Fulfillment . . . 28
10. CHARGEBACKS AND OTHER DEBITS . . . 28
10.1. Chargebacks . . . 28
10.2. Other Debits . . . 31
10.3. Summary (Deposit) Adjustments/ Electronic Rejects . . . 31
10.4. Disputing Other Debits and Summary Adjustments . . . 31
11. ACCOUNT MAINTENANCE . . . 32
11.1. Change of Current Account . . . 32
11.2. Change in Legal Name or Structure . . . 32
11.3. Change Company DBA Name, Address or Telephone/Facsimile Number . . . 32
12. ASSOCIATION COMPLIANCE . . . 32
13. IMPRINTERS . . . 32
14. SUPPLIES . . . 32
15. DYNAMIC CURRENCY CONVERSION . . . 32
Duplicate Confirmation Page . . . 33
Confirmation Page . . . 34
P r o g r a m G u i d e
GENERAL TERMS
Please note that under this Merchant Agreement, different entities will per-form different functions in processing your Credit Card and Interac Direct Payment (IDP) transactions. Home Trust Company is the Acquirer for your Visa transactions. Home Trust Company is the licensed Member of Visa International. First Data Loan Company Canada (“FDLCC”), Canada is the Acquirer for MasterCard transactions and a licensed Member of MasterCard International. CardSolve International, Inc. (“CardSolve”) is a merchant acquiring financial services corporation and operates as a Visa independent sales organization and MasterCard member services provider with MasterCard. As described in greater detail in the General Terms, Section 14 of this Merchant Agreement, CGI, a member of Interac Association, will be the Acquirer for your Debit Card transactions. In this Agreement, the term “we,” “us” or “our” refers to CardSolve, Home Trust Company, FDLCC and CGI. At times, however, the Program Guide refers more specifically to one of these entities to make it clear which entity is performing certain functions.
Capitalized terms used in this Program Guide are defined in Section 19 unless otherwise specified in the Program Guide. All dollar amounts are expressed in Canadian dollars unless otherwise noted.
In addition to Exhibit B– Operating Procedures, our Merchant Agreement with you includes the following General Terms, which may include an Equipment Agreement (as defined in Section 15) or an Equipment Lease Agreement (See Exhibit A). If you fail to follow any of the provisions of the Operating Procedures or General Terms or any Equipment or Equipment Lease Agreement, you may incur certain liabilities or we may terminate this Merchant Agreement.
1. Ser vices
Subject to Association Rules, Services may be performed by one or more of our Affiliates and third-parties, including the provision of Terminals or other equipment and local support functions in connection with this Merchant Agreement.
2. Operating Procedures; Association Rules You agree to follow all requirements of this Merchant Agreement and in any Schedule hereto in connection with each Card transaction and to comply with all applicable Association Rules as outlined in this Merchant Agree-ment and any subsequent amendAgree-ment. From time to time, we may amend the procedures set out in the Operating Procedures and in any Schedule hereto, by providing you with at least thirty (30) days’ prior written notice, and those provisions will be deemed incorporated into this Merchant Agree-ment. However, for changes in the Association Rules or for security reasons, certain changes in the Operating Procedures may become effective on shorter notice. If there are any inconsistencies between the General Terms and the Operating Procedures or any Schedule, the General Terms will govern.
3. Current Account
3.1. You must open and maintain a Current Account for so long as you obtain services from us.
3.2. The Reserve Account, where applicable, shall be governed by this Merchant Agreement.
3.3. Any amounts maintained in the Reserve Account shall not bear interest.
3.4. We shall pay to your Reserve Account all funds transferred to that account in accordance with Exhibit B, Section 7.
3.5. In addition to our rights under this Merchant Agreement, you shall pay to us, immediately upon demand, any overdraft, indebtedness or liability incurred in connection with or arising out of the operation of any Current Account or Reserve Account.
3.6. We may, to the extent permitted by law and without notice, from time to time set off, apply or transfer any and all sums standing to the credit of the Reserve Account in or towards the satisfaction of any
indebtedness or liability you may incur to us, including any indebted-ness or liability in a different currency, and we are herby authorized to effect any necessary currency conversions for such purposes.
3.7. All information relating to the Reserve Account may be recorded or stored by us in such form and by means of such devices as we may see fit and we are under no obligation to retain original documents, instruments or vouchers other than those belonging to or entrusted to us by you.
3.8. We may use the services of any electronic data processing service bureau or organization in connection with keeping any Reserve Account, and in such case we shall not be liable by reason of any act or omission of such service bureau or organization in the perform-ance of the services required of it.
4. Settlement of Card Transactions
4.1. We will only be required to settle Card transactions for Card types specified in your MPA. Promptly after you submit Batches pursuant to the Operating Procedures, we will initiate a transfer of applicable Settlement funds in accordance with Exhibit B, Operating Proce-dures, Section 7. Any other Cards accepted by you will be settled by that Association / company in accordance with the agreement you signed with them.
4.2. All settlements for MasterCard and Visa Card transactions will be net of credits/refunds, adjustments, applicable Discount Rates, Charge-backs and any other amounts then due from you. We may also set off from any payments otherwise due, any amounts owed to our Affiliates whether or not arising out of or related to this Merchant Agreement.
4.3. All credits to your Current Account or other payments to you are provisional and are subject to, among other things, our final audit, Chargebacks (including our related losses), fees and fines imposed by the Associations. You agree that we may debit or credit your Current Account for any deficiencies, overages, fees and pending Chargebacks, or may deduct such amounts from settlement funds due to you. Alternatively, we may elect to invoice you for any such amounts, which amount shall be due and payable thirty (30) days after the invoice date or on such earlier date as may be specified.
4.4. We will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties including but not limited to any Association or your financial institution.
4.5. In addition to any other remedies available to us under this Merchant Agreement, you agree that should any Event of Default occur (see Section 10.4 in the General Terms), we may, with or without notice, change processing or payment terms and/or suspend Credits or other payments of any and all funds, money and amounts now due or hereafter to become due to you pursuant to the terms of this Merchant Agreement, until such event has been investigated.
5. Fees; Adjustments; Collection of Amounts Due
5.1. You shall be charged fees for the Services, which shall be calculated and payable pursuant to this Merchant Agreement and any addi-tional pricing supplements. You acknowledge that the fees agreed to are based on the assumption that your transactions will qualify for certain reduced interchange levels (your “Anticipated Interchange Levels”), as set by the applicable Association. If a transaction fails to qualify for your Anticipated Interchange Levels, then the Association will downgrade the transaction and process it at the applicable interchange level, which will generally be more costly than your Anticipated Interchange Level. In that event, you shall be charged a Non-Qualified Interchange Fee, which is the difference between the Interchange Fee associated with the Anticipated Interchange Level and the Interchange Fee associated with the interchange level at which the transaction actually was processed; plus any applicable
Non-Qualified Surcharge for each non-qualifying transaction, the amount of which is set forth in the Service Fee Schedule.
5.2. All applicable Transaction Fees and Authorization fees will be charged for each transaction that you attempt to authorize. All applicable capture fees will be charged for each transaction that you transmit to us for Settlement.
5.3. The fees for the Services set forth in this Merchant Agreement are based upon assumptions associated with the anticipated annual volume and average transaction size for all Services as set forth in this Merchant Agreement and your method of doing business. If the actual volume or average transaction size are not as expected or if you significantly alter your method of doing business, we may adjust your Merchant Discount Rate and Transaction Fees without prior notice.
5.4. The fees for the Services set forth in this Merchant Agreement may be also adjusted to reflect increases or decreases by Associations in interchange (in the case of Credit Card transactions), IDP Interchange Fees (in the case of IDP transactions), assessments and other Associ-ation or Interac AssociAssoci-ation fees or to pass through increases charged by third parties for on-line communications and similar items. All such adjustments shall be your responsibility to pay and shall become effective upon the date any such change is implemented by the applicable Association or third party.
5.5. You agree to pay all fees payable in accordance with this Merchant Agreement including without limitation the fees referred to under the heading “Additional Fee Information,” in the General Terms, Section 18.2 and any additional pricing supplements.
5.6. Subject to Section 10.3, we may also increase and/or implement new fees for our Services for any other reason by notifying you thirty (30) days prior to the effective date of any such change.
5.7. To the extent the Automated Funds Transfer Settlement process is used to effect credits to your Current Account, you hereby authorize us (or the Designated Settlement Agent in the case of the IDP Service), to initiate Credit entries to your Current Account through direct instructions to the financial institution where your Current Account is maintained. You hereby authorize the financial institution where your Current Account is maintained to effect all such Credits to your account. This authority will remain in full force and effect until we have given written notice to the financial institution where your Current Account is maintained that all monies due under this Merchant Agreement and under any other agreements with us or our Affiliates for any related services have been paid in full.
5.8. You hereby authorize us, for all amounts due under this Merchant Agreement and under any other agreements with us or our Affiliates for any related services, as well as for any credit entries made in error, to make periodic debits to your Current Account on a regular recurring basis. In connection with such authority to debit your Current Account by way of Pre-Authorized debits, you agree to exe-cute any other documentation, which may be required in connection with such Pre-Authorized debits (the “PAD Authorization”). You agree that the PAD Authorization is to remain in full force and effect at all times unless and until we have consented to its termination or we provide you with notice that all monies due under this Merchant Agreement and any other agreements with us or our Affiliates for any related services have been paid in full.
5.9. You agree to pay any fees, fines and penalties charged by us or im-posed on us by any Association resulting from Chargebacks and any other fees, fines or penalties charged by us or imposed on us by any Association with respect to your acts or omissions in connection with the processing of your transactions including your IDP transactions. You agree that all fines, fees, charges, credits, penalties, adjustments or other amounts that you owe constitute a debt that is payable on demand and that your Current Account and Reserve Account, if applicable, may be debited for these amounts without prior notice. You agree that you are responsible for all costs respecting telecom-munications lines and electricity.
5.10. If your Chargeback percentage for any line of business exceeds the estimated industry Chargeback percentage, you may be subject to,
in addition to the Chargeback fees and any applicable Chargeback handling fees or fines, an excessive Chargeback fee for all Charge-backs occurring in such month in such line(s) of business. Each estimated industry Chargeback percentage is subject to change from time to time by us in order to reflect changes in the industry Charge-back percentages reported by the Associations. Your ChargeCharge-back percentage will be calculated as the larger of (a) the total Chargeback items for Credit transactions in any line of business in any calendar month divided by the number of Credit transactions in that line of business submitted that month, or (b) the total dollar amount of Chargebacks for Credit transactions in any line of business received in any calendar month divided by the total dollar amount of your Credit transactions in that line of business submitted in that month.
5.11. If you believe any adjustments should be made with respect to your Current Account, you must notify us in writing within forty-five (45) days after any debit or credit is or should have been effected. If you notify us after such time period, we may, in our discretion, assist you, at your expense, in investigating whether any adjustments are appropriate and whether any amounts are due to or from other parties, but we shall not have any obligation to investigate or effect any such adjustments. Any voluntary efforts by us to assist you in investigating such matters shall not create any obligation to continue such investigation or any future investigation.
6. Chargebacks
6.1. You shall be responsible for reimbursing us for all transactions you submit that are charged back. See the Operating Procedures for additional information regarding Chargebacks and Chargeback procedures.
6.2. You are responsible for any Chargebacks, return items, or other losses resulting from your failure to produce a Card transaction record requested within the applicable time limits.
7. Representations, Warranties; Limitations on Liability;
Exclusion of Consequential Damages 7.1. Without limiting any other warranties hereunder, you represent and
warrant as to each Card or Debit Card transaction submitted under this Merchant Agreement that:
7.1.1. the Card transaction represents a bona fide sale/rental of merchandise or services not previously submitted;
7.1.2. the Card transaction represents an obligation of the Card-holder for the amount of the Card transaction;
7.1.3. the amount charged for the Card transaction is not subject to any dispute, setoff or counterclaim;
7.1.4. the Card transaction amount is only for the merchandise or services (including taxes, but without any surcharge on Card) sold or rented and, except for any delayed delivery or advance deposit Card transactions expressly authorized by this Merchant Agreement, the merchandise or service was actually delivered to or performed for the person entering into the Card transaction simultaneously upon your accepting and submitting the Card transaction for processing;
7.1.5. the Card transaction does not represent the refinancing of an existing obligation of the Cardholder (including any obligation otherwise owed to you by a Cardholder or arising from the dishonour of a personal cheque);
7.1.6. you have no knowledge or notice of any fact, circumstances or defense which would indicate that the Card transaction was fraudulent or not authorized by the Cardholder or which would otherwise impair the validity or collectability of the Cardholder’s obligation arising from such Card transaction or relieve the Card-holder from liability with respect thereto;
7.1.7. the Card transaction submitted to us was entered into by you and the Cardholder;
7.1.8. the Card transaction was made in accordance with these General Terms, Association Rules or, in the case of IDP transactions, the Interac Requirements, and the Operating Procedures; and
7.1.9.the Card transaction is not a payment for a product or service that violates federal, provincial or local law in any jurisdiction that may be applicable.
7.2. THIS AGREEMENT IS A SERVICE AGREEMENT. WE DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IM-PLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
7.3. IN NO EVENT SHOULD ANY PARTY, OR THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOY-EES, AGENTS OR SUBCONTRACTORS, BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES AND AGREES THAT PAYMENT OF ANY EARLY TERMINATION FEE OR LIQUIDATED DAMAGES AS PROVIDED ELSEWHERE IN THIS AGREEMENT SHALL NOT BE PROHIBITED BY THIS PARAGRAPH.
7.4. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY (INCLUDING BUT NOT LIMITED TO SECTION 13 AND THE PROVISIONS UNDER THE HEADING “INDEMNIFICATION” IN SECTION 14.4), OUR CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL NOT EX-CEED, (I) $50,000; OR (II) THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THIS AGREEMENT FOR SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING 12 MONTHS, WHICHEVER IS LESS.
7.5. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY (INCLUDING BUT NOT LIMITED TO SECTION 13 AND THE PROVISIONS UNDER THE HEADING “INDEMNIFICATION” IN SECTION 14.4), OUR LIABILITY FOR ANY DELAY IN FUNDING TRANSACTIONS TO YOU FOR ANY REASON WILL BE LIMITED TO INTEREST COMPUTED FROM THE DATE THAT YOU SHOULD HAVE RECEIVED FUNDING PURSUANT TO THIS AGREEMENT.
8. Confidentiality
8.1. Unless you obtain consents from us and each applicable Associa-tion, Issuer and Cardholder, you must not use, disclose, sell or disseminate any Cardholder information obtained in connection with a Card transaction (including the names, addresses and Card account numbers of Cardholders) except for purposes of author-izing, completing and settling Card transactions and resolving any Chargebacks, Retrieval Requests or similar issues involving Card transactions, other than pursuant to a court or governmental agency request, subpoena or order. You shall use proper controls for and limit access to, and render unreadable prior to discarding, all records containing Cardholder account numbers and Card imprints. You may not retain or store Magnetic Stripe data after a transaction has been authorized. If you store any electronically captured signature of a Cardholder, you may not reproduce such signature except upon our specific request.
8.2. You acknowledge that you will not obtain ownership rights in any information relating to and derived from Card transactions.
9. Assignments
9.1. Any transfer or assignment of this Merchant Agreement by you, without our prior written consent, by operation of law or otherwise, is voidable by us. Furthermore, you shall indemnify and hold us harmless from all liabilities, Chargebacks, expenses, costs, fees and fines arising from any transferee’s or assignee’s Submission of Card or Debit Card transactions to us for processing. For purposes of this Section 9, any transfer or change of voting control shall be consid-ered an assignment or transfer of this Merchant Agreement.
9.2. The payment services provided by us require access to a single financial institution account in which we may initiate both credits and debits. You may not enter into any agreement that would require, in any circumstance or event, the transfer of any payments or proceeds from Credit Card transactions covered by this Merchant Agreement to the custody or control of any third party. You may not assign any rights, including the right of payment under this Merchant Agreement, to any other person. In the event that you make an assignment (or provide a security interest) of receivables covered by this Merchant Agreement, then we may, at our option, elect to (a) refuse to acknowledge such assignment unless accom-panied by an authorization to both initiate debits or credits to the financial institution account of the assignee, (b) terminate this Merchant Agreement immediately, or (c) charge for any transfers that we are called upon to make manually to fulfill such an assignment at the rate of $100 per transfer.
9.3. Upon notice to you, another MasterCard, Visa or Interac member may be substituted for us under whose sponsorship this Merchant Agreement is performed. Upon substitution, such other MasterCard, Visa or Interac member shall be responsible for all obligations required of us. Subject to Association Rules and Interac Require-ments, we may assign or transfer this Merchant Agreement and our rights and obligations hereunder and/or may delegate our duties hereunder, in whole or in part, to any third party, whether in con-nection with a change in sponsorship, as set forth in the preceding sentence, or otherwise, without notice to you or your consent.
9.4. Except as set forth elsewhere in this Section and as provided in the following sentence, this Merchant Agreement shall inure to the benefit of and be binding upon us and our successors and assigns and you and your permitted successors and assigns. No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession or other person charged with taking custody of a party’s assets or business, shall have any right to continue, assume or assign this Merchant Agreement.
10. Term; Events of Default
10.1. This Merchant Agreement shall become effective upon the date this Merchant Agreement is approved by our credit department.
10.2. The initial term of this Merchant Agreement shall commence and shall continue in full force for three years after it becomes effective. Unless either party provides the other with a written notice of termination at least 30 days prior to the expiration of the then existing term, this Merchant Agreement shall automatically renew for successive one-year terms.
10.3. Notwithstanding the above or any other provisions of this Merchant Agreement, we may terminate this Agreement at any time and for any reason by providing thirty (30) days’ advance notice to you. In the event we provide notice to you of an increase in the fees and/or implementation of new fees for Services, pursuant to Section 5.6, you may terminate this Merchant Agreement without further cause or penalty by providing us thirty (30) days advance written notice of termination. You must terminate within thirty (30) days after we provide notice of the Section 5.6 increase and/or new fees. The Section 5.6 fee increase and/or new fees shall not take effect in the event you provide timely notice of termination. However, your continued use of our Services after the effective date of any increase and/or new fees shall be deemed acceptance of the increased and/or new fees for Services, throughout the term (and any renewal term) of this Merchant Agreement.
10.4. If any of the following events shall occur (each an “Event of Default”):
10.4.1. a material adverse change in your business, financial con-dition, business procedures, prospects, products or services; or
10.4.2. any merger, amalgamation, assignment or transfer of voting control of you or your parent; or
10.4.3. a sale of all or a substantial portion of your assets; or
10.4.4. irregular Card sales by you, excessive Chargebacks or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us; or
10.4.5. any improper use or presentation of MasterCard, Visa or Interac marks; or
10.4.6. any of your representations or warranties in this Merchant Agreement are breached in any material respect or are incorrect in any material respect when made or deemed to be made; or
10.4.7. you shall default in any material respect in the performance or observance of any term, covenant, condition or agreement con-tained in this Merchant Agreement, including, without limitation, the establishment or maintenance of funds in a Reserve Account, as detailed in Section 11 and the confidentiality obligations set forth in Section 8 and Section 14; or
10.4.8. you shall default in any material respect in the performance or observance of any term, covenant or condition contained in any agreement with any of our Affiliates; or
10.4.9. you shall default in the payment when due, of any material indebtedness for borrowed money or any material trade payable; or
10.4.10. you shall engage in any act or omission or any other event shall occur in respect of you or your business behaviour which constitutes “cause for termination” by Visa or MasterCard; or
10.4.11. you shall file a petition, proposal or application or have a petition or application filed by another party under the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrange-ment Act (Canada) or any other laws relating to bankruptcy, insol-vency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, manager, receiver-manager, custodian, trustee or liquidator of yourself or of a substantial part of your property; or you make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or
10.4.12. your independent certified accountants shall refuse to deliver an unqualified opinion with respect to your annual financial statements and your consolidated subsidiaries; or
10.4.13. you cancel or revoke the PAD Authorization for any reason whatsoever;
then, upon the occurrence of (1) an Event of Default specified in subsections 10.4.4 or 10.4.10 above, this Merchant Agreement shall be terminated immediately, without notice, and all amounts payable hereunder and under any other agreement between you and us or any of our Affiliates (including without limitation under any Equipment Lease Agreement or Equipment Agreement, rental or purchase related to a Point of Sale Terminal) shall be immediately due and payable in full without demand or other notice of any kind, all of which are ex-pressly waived by you, (2) any other Event of Default, this Merchant Agreement may be terminated by us giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder and under any other agreement between you and us or any of our Affiliates (including without limitation under any Equipment Lease Agreement or Equipment Agreement, rental or purchase related to a POS Terminal) shall be due and payable on demand.
10.5. Neither the expiration nor termination of this Merchant Agreement shall terminate the obligations and rights of the parties pursuant to the provisions of this Merchant Agreement, which by their terms are
intended to survive or be perpetual or irrevocable. Such provisions shall survive the expiration or termination of this Merchant Agree-ment. All of your payment or reimbursement obligations associated with transactions submitted are intended to survive termination of this Merchant Agreement.
10.6. If any Event of Default shall have occurred and be continuing, we may, in our sole discretion, exercise all of our rights and remedies under applicable law, including, without limitation, exercising our rights under Section 11.
10.7. If this Merchant Agreement is terminated as a result of an Event of Default, you acknowledge that we may be required to report your business name and the names and other information regarding your principals to the combined terminated merchant file maintained by the Association. You expressly agree and consent to such reporting if you are terminated as a result of the occurrence of an Event of Default (or for any reason specified as cause by MasterCard or Visa). Furthermore, you agree to waive and hold us harmless from and against any and all claims, which you may have as a result of such reporting.
10.8. After termination of this Merchant Agreement for any reason whatsoever, you shall continue to bear total responsibility for all Chargebacks, fees, credits and adjustments resulting from Card transactions processed pursuant to this Merchant Agreement and all other amounts then due or which thereafter may become due under this Merchant Agreement.
11. Reser ve Account; Security Interest 11.1. You expressly authorize us to establish a Reserve Account pursuant
to the terms and conditions set forth in this Section 11 to ensure the recovery of such. The amount of such Reserve Account shall be set by us, in our sole discretion, based upon your processing history and the potential risk of loss to us as may be determined from time to time. You acknowledge that the Reserve Account is under the con-trol of First Data Loan Company, Canada and Home Trust Company, the acquirers for your Credit Card transactions.
11.2. You agree that if a Reserve Account is established, it shall be fully funded upon three (3) days’ notice to you, or in instances of fraud or an Event of Default or termination of this Merchant Agreement by any party, funding must be immediate. Such Reserve Account must be funded and/or replenished by all or any combination of the following: (i) debiting your Current Account or any other account accessible to us by virtue of Section 5.8 of this Program Guide and the PAD Authorization; (ii) one or more deductions or offsets by us or our Affiliates to any payments otherwise due to you; (iii) your delivery to us of a letter of credit; or (iv) if we so agree, your pledge to us of a freely transferable and negotiable certificate of deposit. Any such letter of credit or certificate of deposit shall be issued or established by a financial institution acceptable to us and shall be in a form and in an amount satisfactory to us. In the event of termi-nation of this Merchant Agreement by any party, a Reserve Account will be established without notice in the manner provided above. Funds in the Reserve Account will be held by us for the greater of ten (10) months after termination of this Merchant Agreement or for such longer period of time as is consistent with our liability for Card transactions in accordance with Association Rules. Your funds held in a Reserve Account may be held in a commingled Reserve Account for the reserve funds of our Clients, without involvement by an independent escrow agent. Unless specifically agreed in writing by us or specifically required by applicable law, funds held by us in a Reserve Account shall not accrue interest. You shall have no right to withdraw funds from the Reserve Account.
11.3. If your funds in the Reserve Account are not sufficient to cover the Chargebacks, adjustments, fees and other charges due from you under this Merchant Agreement, or if the funds in the Reserve Account have been released, you agree to promptly pay us such sums upon request.
11.4. To secure your obligations to us and our Affiliates under this Merch-ant Agreement and any other agreement for the provision of related equipment or related services (including under any Equipment
Agreement or Equipment Lease, whether now or hereafter due or to become due to you, (collectively, “Obligations”), you hereby grant us a lien and security interest in and to the Reserve Account any of your funds pertaining to the Card transactions contemplated by this Merchant Agreement now or hereafter in our possession, and any other amount owing and payable by us to you, whether now or hereafter due or to become due to you. In addition to any rights granted under applicable law, to the extent not contrary to such law, you hereby authorize us (any related notice and demand are hereby expressly waived), to set off, compensate, recoup and to appropriate and to apply any and all such funds (including in the Reserve Account) against and on account of your Obligations, whether such Obligations are liquidated, unliquidated, fixed, contingent, matured or unmatured. You agree to duly execute and deliver to us such instruments and documents as may be reasonably requested to perfect and confirm the lien, security interest, hypothec, right of set off, compensation, recoupment and appropriation set forth in this Merchant Agreement.
12. Financial and Other Information
12.1. If requested, you will provide us quarterly financial statements within forty-five (45) days after the end of each fiscal quarter and annual audited financial statements within ninety (90) days after the end of each fiscal year. Such financial statements shall be prepared in accordance with generally accepted accounting principles. You will also provide such other financial statements and other informa-tion concerning your business and your compliance with the terms and provisions of this Merchant Agreement as we may reasonably request. Subject to Section 12.2 below, you authorize us to obtain from third parties financial and credit information relating to you in connection with our determination whether to accept this Merchant Agreement and our continuing evaluation of your financial and credit status. We may also access and use information, which you have provided to us (other than personal information) for any other reason. Subject to Section 12.2 below, you also authorize us to share any information concerning you and your business with any of our agents and/or Affiliates in connection with the performance of the Services contemplated hereunder or the provision of any equipment or related services. Upon request, you shall provide to us, or our representatives reasonable access to your facilities and records for the purpose of performing any inspection and/or copying of your books and/or records deemed appropriate.
12.2. Personal Information. For the purposes of this Section 12, the term “personal information” means information about an identi-fiable individual, as more particularly described or limited by the Personal Information Protection and Electronic Documents Act (Canada) or similar applicable provincial privacy legislation. If you have entered into an Equipment Lease Agreement, the terms “we,” “us” and “our” in this Section 12.2 includes First Data Global Leasing. You and each principal, guarantor or other individuals that have signed your MPA consent to the collection, use and disclosure of personal information by us as described below and for the following purposes: (a) We may, from time to time, use your credit, financial and related personal information provided to or otherwise collected by us in connection with your MPA, this Merchant Agreement and any resulting business or other credit arrangements or guarantees, and any update, renewal or extension of those arrangements (collectively, the “Business Arrangements”), for the purposes of: (i) verifying and evaluating your current and ongoing credit-worthiness, your eligibility for the Business Arrangements and other information provided to us in connection with the Business Arrangements; (ii) establishing, administering, servicing, collect-ing and enforccollect-ing your account and the Business Arrangements; (iii) registering and enforcing security on the Business Arrange-ments; and (iv) generally providing the products and services you have requested. Birth dates, Social Insurance Numbers or other personal identification, if provided, may be used by us for the purpose of verifying your identity, including matching records or credit information.
(b) For the above purposes and for providing credit information to your potential creditors, we may exchange personal information between us and disclose credit, financial, insurance and related personal information from time to time to, and collect such information from: (i) our Affiliates, agents and representatives; (ii) credit bureaus and reporting agencies; and (iii) businesses and financial institutions with whom you have had or may have a financial relationship, including references you have provided in support of the Business Arrangements. You consent to the disclosure of such information by these parties to us.
(c) Banking details and related personal information in connection with your PAD Authorization (and for the Equipment Lease in connection with your Authorization) may be disclosed to our bank for the purposes of administering the Automatic Debit Program as described in this Merchant Agreement. Relevant personal information may be disclosed to card associations as necessary to process, authorize and authenticate transactions, in order to comply with regulations of these card associations. We may use and disclose personal information (including your date of birth and relevant account information) to third parties as necessary to register a security interest as contemplated in this Merchant Agreement, for the purposes of enforcing such security or otherwise in connection with collection of amounts owing to us, for the purposes of detecting and preventing fraud, and complying with money laundering, terrorist financing or similar laws in Canada and foreign countries (including the United States), including checking your identity against watch lists established by regulatory agencies or similar bodies in Canada and in foreign countries.
(d) Personal information may be used by us and disclosed to parties connected with the proposed or actual financing, insuring, securitization, sale, assignment or other disposal of all or part of us or our business or assets (including, without limitation, your account or amounts owing to us), for the purposes relating to the evaluation and/or performance of these transactions. Successors and assignees of our business or assets may collect, use and disclose your personal information as described in this consent. (e) We may use agents and service providers, including our Affiliates, to collect, use, store or process personal information on its behalf. Some of these service providers or Affiliates may be located out-side of Canada, and your personal information may be transferred or processed outside of Canada for the purposes described in this consent. Contractual or other means used by us to protect your personal information are subject to legal requirements in foreign jurisdictions applicable to us and our service providers and Affiliates (for example, lawful requirements to disclose personal information to government authorities in those countries). (f) We may generally collect, use and disclose personal information
for the purposes of meeting legal, regulatory, audit, processing and security requirements. We may otherwise collect, use and disclose personal information as described elsewhere in your MPA or this Merchant Agreement, as further described in our “Privacy Principles” publication (see below), and as permitted or required by law (including as required by applicable foreign laws).
(g) Marketing and Solicitation: In addition to the above purposes, we may use your personal information (including contact and account information) from time to time in order to determine your eligibility for and occasionally communicate with you re-garding additional products, services or business opportunities of us or our Affiliates that may be relevant to you. Individuals may withdraw consent for this purpose by contacting us at 1-800-886-9134.
This consent will be valid for so long as required to fulfill the pur-poses described above. You represent and warrant that you have the necessary consent of your principals, guarantors or other individuals whose personal information we have obtained in connection with
this Merchant Agreement for the purposes described above. For fur-ther information about our personal information practices, you may obtain a copy of our “Privacy Principles” publication by contacting us toll free at 1-888-263-9134. Authorized employees and agents of Cardsolve that require access to your personal information will have access to your file, which will be accessible at CardSolve Interna-tional, Inc. at 380 Wellington Street, 15th Floor, London, Ontario, N6A 5B5. If you wish to access or make corrections to your personal information in the possession of Cardsolve, you may write to the address noted above.
12.3. You will provide us with written notice of any judgment, writ, war-rant of attachment, execution or levy against any substantial part (25% or more in value) of your total assets not later than three (3) days after you become aware of same.
13. Indemnification
13.1. You agree to indemnify and hold us harmless from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions, fines or penalties (including legal fees on a solicitor and client basis) arising from;
(a) any breach of any warranty, covenant or agreement or any mis-representation by you under this Merchant Agreement; (b) you or your employees’ or your agents’ failure to comply with
the terms of this Merchant Agreement or any requirements of which you are advised from time to time including requirements of MasterCard International Incorporated and Visa Canada/or Visa International or of Credit Card Issuers;
(c) you or your employees’ or your agents’ fraud, negligence or willful misconduct, in connection with Credit Card transactions or otherwise arising from your provision of goods and services to cardholders;
(d) Credit Card transactions or the settlement of funds from trans-actions or your use of our Service;
(e) any third party indemnifications we are obligated to make as a result of your actions (including indemnification of any Associ-ation or Issuer). This clause will survive terminAssoci-ation of this Merchant Agreement.
13.2. We agree to indemnify and hold you harmless from and against all losses, liabilities, damages and expenses resulting from any breach of any warranty, covenant or agreement or any misrepresentation by us under this Merchant Agreement or arising out of our or our employees’ gross negligence or willful misconduct in connection with this Merchant Agreement.
13.3. You agree that you will have no recourse against us, our agents, and our service providers for any losses, claims or damages, including any indirect, special, incidental or consequential damages or lost profits even if informed of the possibility of such damages (however arising, including negligence), arising out of or related to Credit Card transactions, the POS Terminal, or settlement funds. This clause will survive termination of this Merchant Agreement.
14. Special Provisions for Interac Direct Payment (“IDP”) (Debit)
This Section of the Merchant Agreement provides the terms and conditions for processing IDP transactions. The IDP Service enables customers to pay for goods and services by debiting money directly from their accounts using a POS Terminal with PIN verification. As is the case with your Credit Card transactions, different entities will perform different functions in processing your IDP transactions. Certain functions involved in the IDP Service may be performed by one or more of our agents, service providers or Affiliates.
While this Section deals specifically with processing of IDP transactions, there are other provisions in this Merchant Agreement that also relate to and govern the processing of your IDP transactions. In order to understand all of your rights and obligations in respect of the processing of IDP trans-actions, you must carefully read the entire Merchant Agreement.
14.1. Honouring Debit Cards.You agree to honour any Debit Card tendered by any Debit Cardholder for use in purchasing goods or services and to process all IDP transactions in accordance with this Merchant Agreement and with any rules, instructions, manuals and procedures which we may issue from time to time in accordance with this Merchant Agreement, including, but not limited to, the Interac Requirements.
14.2. Processing IDP Transactions.
14.2.1. When a Debit Cardholder presents a Debit Card for IDP, you agree to:
• Sell goods and/or services at the ticketed or posted price; • Process a refund, if you agree to accept a return of merchandise; • Swipe, or have the Debit Cardholder swipe, the Debit Card only
for purposes of completing the Debit Card transaction and not for any other purpose;
• Notify the Debit Cardholder if you require a minimum or maxi-mum purchase amount before you will accept the Debit Card for payment;
• Not to impose any fees, other charges or other conditions of sale for the use of a Debit Card as a means of payment; and
• Not to pay any form of rebate or benefit of any kind to Debit Card-holders that discriminates among Debit Card Issuers.
14.2.2. You agree to follow the following steps to complete the IDP transaction:
• Enter the information for the transaction into the POS Terminal; • Ask the Debit Cardholder to enter his or her PIN and verify the
amount of the transaction by using the PIN pad;
• Act on the instructions displayed by the POS Terminal (for exam-ple, an Authorization number, a decline, a message to try again, or other similar instructions);
• If an incorrect or unauthorized PIN is entered, the POS Terminal will indicate a message that the PIN is incorrect or unauthorized. The Debit Cardholder must be permitted at least three (3) consec-utive attempts to enter the correct PIN for one (1) IDP transaction. You may decline a transaction after any three (3) consecutive PIN failures;
• Provide the Debit Cardholder with the transaction record (regard-less of whether the transaction was approved or declined); and • Respond to any tracing requests (that is, a request for information
about the nature or disposition of an IDP transaction) in accor-dance with the Interac Requirements and any instructions from us.
14.2.3. You agree to promptly advise us if a POS Terminal is not working.
14.2.4. You agree that we may assume that all debits to your accounts initiated at a POS Terminal were authorized by you.
14.2.5. You agree that you are responsible for the validity and integrity of all Data that you submit in the context of a Debit Card transaction, and that in no event will we be responsible for any acts or omissions by you that cause such Data to be entered or submitted for processing in a manner that does not meet such reasonable tech-nical requirements as we may prescribe.
14.3. Record-Keeping. You agree to maintain evidence of each Debit Card transaction and the settlement thereof for a period of one (1) year after the date of settlement of such transactions. You agree to make available such records for examination as we or our agents may reasonably request from time to time. This clause survives termina-tion of this Merchant Agreement.
14.4. Return of Debit Cards. In the event that a Debit Card is inadver-tently left by a Debit Cardholder at your premises, you may return the Debit Card to the Debit Cardholder upon request, subject to satisfactory identification of the Debit Cardholder. If the Debit Card remains unclaimed after twenty-four (24) hours, you should cut the
Debit Card into two (2) pieces and return it to us within twenty-four (24) hours to the following address:
CardSolve International, Inc. 380 Wellington Street
15th Floor London, Ontario N6A 5B5
14.5. Disputed Debit Transactions.
14.5.1. You agree not to refund any Debit Card transactions that are under dispute as to whether funds were or were not debited cor-rectly to the account of a Debit Cardholder. You agree to inform the Debit Cardholder that he or she must contact their own financial institution with respect to such disputes. You agree to be liable for any attempts by you or your employees or agents to correct such disputes in the event of any incorrect debit, including, without limitation, a double debit of the Debit Cardholder’s account or a cash refund.
14.5.2. Your ability to complete refunds or reversal transactions may be restricted or disabled in certain circumstances, including, but not limited to, suspected fraudulent activity. When possible, you will be given advance notice in such cases.
14.6. Failure to Comply. Your access to the IDP Service may be ter-minated if you fail to comply with any terms of this Merchant Agreement or instructions from us.
14.7. Cardholder Confidentiality.
14.7.1. You acknowledge that you will not obtain ownership rights in any information relating to or derived from Debit Card transac-tions. Unless you obtain consents from us, Interac Association, and each applicable Issuer and Debit Cardholder, you must not use, dis-close, sell or disseminate any Debit Cardholder information obtained in connection with a Debit Card transaction (including the names, addresses and Debit Card account numbers of Debit Cardholders) except for purposes of authorizing, completing and settling Debit Card transactions and resolving any tracing requests, Retrieval Requests or similar issues involving Debit Card transactions, other than pursuant to a court or governmental agency request, subpoena or order. You shall use proper controls for and limit access to, and render unreadable prior to discarding, all records containing Debit Cardholder account numbers. You may not retain or store Magnetic Stripe data after a transaction has been authorized.
14.7.2. You agree to take all reasonable precautions to protect information encoded on Debit Cards while the Debit Card is being used for an IDP transaction.
14.7.3. The Debit Cardholder’s PIN is confidential to the Debit Cardholder, and you agree not to require the Debit Cardholder to divulge or disclose in any manner his or her PIN or allow the PIN to be displayed in clear text form.
14.7.4. You agree to situate the POS Terminal or PIN pad in such a manner as to minimize potential disclosure of the PIN during its entry by the Debit Cardholder.
14.7.5. You agree to comply with any and all applicable federal and provincial laws and regulations dealing with the protection and disclo-sure of private information about or belonging to Debit Cardholders.
14.8. Authorization. All IDP transactions must be authorized via the POS Terminal.
14.8.1. You agree that you will not attempt to obtain Authorization for an IDP transaction from another Authorization system.
14.8.2. You agree that you will not attempt to obtain multiple Authorizations for a single transaction. If a sale is declined, do not take alternative measures with the same Debit Card to obtain an approval of the sale from other Authorization sources. Instead, request another form of payment.
14.8.3. If your POS Terminal malfunctions, refer to your POS Quick Reference Guide or call the Customer Service number in the General Terms, Section 18.3 of this Merchant Agreement and select Option 3 for Technical Assistance.
14.8.4. During any period in which your POS Terminal is not functioning, remember to check it periodically since most POS Ter-minal problems are temporary in nature and are quickly corrected.
14.8.5. If a POS Terminal is moved or if wires are disconnected causing a malfunction, call the Customer Service number in the General Terms, Section 18.3 of this Merchant Agreement imme-diately and select Option 3 for Technical Assistance. You may be responsible for any service charges incurred for reactivation of the POS Terminal.
14.9. Submission / Deposit of Batches.
14.9.1. You may present for payment only valid debits that arise from a transaction between a bona fide Debit Cardholder and your business. If you deposit or attempt to deposit sales between Debit Cardholders and any business other than your business, you will be subject to all costs associated therewith and to immediate termina-tion of your Merchant Agreement and/or legal actermina-tion.
14.9.2. All Batches must be properly completed and submitted daily. Instructions for closing and submitting Batches are provided in your POS Quick Reference Guide. Late Submission may result in a delay in funding and/or increased IDP Interchange Fees, or rates or charges.
14.9.3. Batches must be transmitted to us by 9:00 PM EST in order to be processed on the date of transmission.
14.10. Settlement.
14.10.1. You agree that the Current Account that you will establish in accordance with this Merchant Agreement will be used for Settlement of funds from Debit Card transactions.
14.10.2. You authorize us, our agents, and our service providers to draw on and deposit to your Current Account for Settlement of funds from Debit Card transactions.
14.10.3. If you maintain a Current Account at a financial institu-tion with which the Designated Settlement Agent has arrangements permitting direct payment of settlement funds, settlement funds will be credited to your Current Account. This will generally occur by the second Business Day after the applicable Batch has been received. If you elect to use for receipt of settlement funds a financial institution which does not have arrangements for direct payment of settlement funds with the Designated Settlement Agent, settlement may be delayed one additional day.
14.10.4. If you receive payment of settlement funds through auto-mated funds transfer by electronic Media, settlement by electronic funds transfer will generally take place the second Business Day after the applicable Batch has been received and processed, unless a different time is specified.
14.10.5. You agree to maintain appropriate reporting and opera-tional processes to reconcile on a daily basis settlement totals posted to your Current Account.
14.10.6. An out-of-balance situation is a situation where there is a discrepancy between what you would have expected to receive as a result of settlement and what you actually received. You agree to notify the POS Technical Help Desk for MasterCard and Visa (as noted in Section 18.3 of the General Terms) immediately of any out-of-balance situations or other discrepancies, and to take all measures necessary to resolve such situations. If a Terminal displays an “out of balance” message, you agree to immediately call the Customer Service number in the General Terms, Section 18.3 of this Merchant Agreement and select Option 3 for Technical Assistance. In the event that you fail to respond in a timely manner to such situations or discrepancies, you shall be responsible for any liability or losses resulting from such failure.
14.10.7. We do not determine which Debit Card transactions are subject to being dishonoured or reversed. This is determined by the relevant Interac Requirements. You agree that in the event that any Debit Card transaction is dishonoured, you will be fully responsible for and shall indemnify us for any claims arising from such transaction.
14.10.8. All credits to your Current Account or other payments to you in respect of IDP transactions are provisional and are subject to final audit, and you agree that your Current Account shall be debited or credited, without notice, for any deficiencies, overages, or fines, penalties or fees imposed by any third party, including Interac Association. Alternatively, such amounts may be deducted from settlement funds due to you or you may be invoiced for any such amounts, which, in such case, such amounts will be due and payable thirty (30) days after the invoice date or on such earlier date as may be specified.
14.10.9. You agree to perform and comply with all responsibilities and requirements relating to the settlement process set out in the Interac Requirements, as updated from time to time, and any requirements of which we advise from time to time, including, with-out limitation, responding to tracing requests, adjustments through debit or credit letters, problem escalation, and disputes relating to the settlement process.
14.10.10. All settlements for Interac Debit Card transactions may be net of credits/refunds, adjustments, applicable discount fees when due, and any other amounts then due from you. We may also set off from any payments otherwise due, any amounts owed to our Affiliates whether or not arising out of or related to this Merchant Agreement.
14.10.11. We will not be liable for any delays in receipt of funds or errors in debit and credit entries caused by third parties. In addition to any other remedies available to us under this Merchant Agree-ment, you agree that should any Event of Default occur, then, we may, without notice, change processing or payment terms and/or suspend credits or other payments of any and all funds, money and amounts then due or thereafter to become due to you pursuant to the terms of this Merchant Agreement, until such event has been investigated. In cases where we, in our discretion, have reason to believe that there is fraudulent activity relating to one or more trans-actions that you submit, no prior notice shall be required, but you shall be notified in writing within three Business Days after effectu-ation of a suspension of credits or other payments, which shall state the reason for the belief that such fraud or similar cause exists.
14.10.12. All obligations set out in this Section 14 of the Merchant Agreement under the heading “Settlement” shall survive termination of this Merchant Agreement until they have been fully satisfied.
14.11. Displays and Trademarks.
14.11.1. You agree to prominently display standard decals, signs, service marks and promotional materials provided by us to show that you accept IDP for transactions.
14.11.2. You agree to obtain our prior approval for any advertising using the Interac name, its distinctive gold and black logo with service description box, the IDP service or any representation of any kind of them.
14.11.3. You agree not to alter the trademarks, trade names, design, marks, or logos of Interac Association in any manner. These include the word mark Interac, the Interac design/logo, and the IDP logo (which takes the Interac logo and attaches a service description).
14.11.4. Any use of any trademarks of Interac Association related to transactions and/or the POS Terminal will comply with the Interac Requirements. If you use or permit any other party to use such trade-marks other than in accordance with the Interac Requirements, permission to use such trademarks may be withdrawn.
14.12. Security.
14.12.1. You agree to follow security procedures as advised by us, and to ensure that your employees are familiar with them.
14.12.2. You will not allow any device to be connected to a POS Terminal, or any part of it, without our written permission.
14.12.3. You are responsible for the security of all equipment that you may use to process IDP transactions and are liable for any unau-thorized use of it, regardless of whether such unauunau-thorized use was
made by you, your employees, agents or customers. You are also responsible for security measures to protect your customers’ PINs and the cryptographic keys loaded on your POS Terminal.
14.12.4. You agree to take all reasonable precautions to ensure that all POS Terminals are closed and unavailable for use after business hours. You also agree to advise us immediately if you suspect that any POS Terminal has been tampered with or if any PIN pad has been lost or stolen.
14.12.5. You agree to maintain accurate logs of employee shifts and provide these logs to us within twenty-four (24) hours of a request to do so as part of an investigation of a Debit Card fraud incident. In the case of a suspected fraud, you agree to provide all necessary assistance and information to us, Interac Association, and/or the Debit Card Issuer by providing POS Terminal information, and pro-viding logs (shift logs and receipts) necessary to investigate security incidents.
14.13. Fees / Charges. You shall be charged a fee for the IDP Service, which shall be calculated and payable pursuant to this Merchant Agreement, the MPA and any additional pricing supplements. Fur-ther detail regarding these fees is provided in Section 5 of the Pro-gram Guide.
14.14. Indemnification.
14.14.1. You agree to indemnify and hold us harmless from and against any losses, actions, causes of action, claims, demands, costs, liabilities, expenses, damages, sanctions, fines or penalties (including legal fees on a solicitor and client basis) arising from:
(a) any breach of any warranty, covenant or agreement or any mis-representation by you under this Merchant Agreement; (b) you or your employees’ or your agents’ failure to comply with
the terms of this Merchant Agreement, or any requirements of which you are advised from time to time, including Interac Requirements and requirements of Debit Card Issuers; (c) you or your employees’ or your agents’ fraud, negligence or
willful misconduct in connection with Debit Card transactions or otherwise arising from your provision of goods and services to Cardholders;
(d) Debit Card transactions or the settlement of funds from trans-actions or your use of our Service;
(e) any third party indemnifications we are obligated to make as a result of your actions (including indemnification of any associ-ation or Issuer).
14.14.2. This clause will survive termination of this Merchant Agreement.
14.14.3. You agree that you will have no recourse against us, our agents and our service providers for any losses, claims or damages, including any indirect, special, incidental or consequential damages or lost profits even if informed of the possibility of such damages (however arising, including negligence), arising out of or related to Debit Card transactions, the POS Terminal, or settlement of funds. This clause will survive termination of this Merchant Agreement.
14.15. Procedure and Compliance.
14.15.1. We may, from time to time, issue directions in writing regarding procedures to be followed and prescribe forms to be used in connection with the processing of Debit Card transactions under this Merchant Agreement, and such directions and the terms of such forms shall be binding upon you upon receipt thereof.
14.15.2. You agree to comply, and take all necessary and advisable measures to ensure that your personnel comply, with all the terms of this Merchant Agreement and with all the rules, instructions, manuals, and procedures which we may issue from time to time in connection with this Merchant Agreement, and with all applicable Interac Requirements.
14.15.3. In order for us to verify that you are in compliance with your obligations under this Merchant Agreement or Interac Requirements,
