HomeMy WebLinkAboutCity Council Committees - Operations Committee - 07/05/2017 (2)
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 Fourth Ave S, Kent, WA
98032.
For additional information please contact Jennifer Hays at 253-856-5700, or via email at
jhays@KentWA.gov.
Any person requiring a disability accommodation should contact the City Clerk’s
Office at 253-856-5725 in advance. For TDD relay service call Washington
Telecommunications Relay Service at 1-800-833-6388.
Operations Committee Agenda
Councilmembers: Bill Boyce – Les Thomas – Dana Ralph, Chair
July 5, 2017
4 p.m.
Item Description Action Speaker Time Page
1. Call to order Chair Ralph 1
2. Roll Call Chair Ralph 1
3. Changes to the Agenda Chair Ralph 1
4. Approval of Check Summary Report
dated 6/01/17-6/15/17
YES Chair Ralph
5. Approval of Minutes dated June 20,
2017
YES Chair Ralph 2 1
6. ShoWare Europay, MasterCard and Visa
(EMV) Chip Card Readers - Recommend
YES Mike Carrington 15 5
7. May Financial Report – Information Only NO Aaron BeMiller 5 275
8. Director’s Report – Information Only NO Aaron BeMiller 10 291
This page intentionally left blank
Operations Committee
Minutes
Approval Pending
Page 1 of 3
Date: June 20, 2017
Time: 4:00 p.m.
Place: Chambers East
Attending: Les Thomas and Dana Ralph, Chair; Bill Boyce had an excused absence
Agenda:
1. Call to Order.
2. Roll Call.
3. Changes to the Agenda.
There were no changes to the agenda.
4. Approval of Check Summary Reports dated 5/16/2017 thru
5/31/2017.
L. Thomas moved to approve the check summary report dated 5/16/2017
thru 5/31/2017. D. Ralph seconded the motion, which passed 2-0.
5. Approval of Meeting Minutes dated June 6, 2017.
L. Thomas moved to approve the Operations Committee meeting minutes
dated June 6, 2017. D. Ralph seconded the motion, which passed 2-0.
6. ShoWare Point of Sale Replacement Project - Recommend.
Information Technology (IT) Director Mike Carrington and IT Business and
Occupation Project Manager/Business Analyst Annette Pape made a request to
replace existing micros equipment with a new Point of Sale (POS) system that
will improve the ability to process purchases onsite and over the internet for
the ShoWare Event Center Arena. SMG is contracted to manage and operate
the city-owned arena.
On behalf of the City and after vetting all potential vendors, SMG selected
Accesso Siriusware as the preferred vendor. SMG made the choice for several
features including quality and reliability of software program, ease of use for
operator and purchaser, interoperability with the online ticketing system, and
cost. Updates to the event center that patrons can look forward to consist of:
the main level will stay as is with the exception of upgrading current
relocatable kiosks to have wireless mobile devises that will be connected
to the City’s wireless network, and
second level suites will have POS hand-held mobile devises for food and
beverage quick orders to pre-order and pick-up.
1
Operations Committee
Minutes
Approval Pending
Page 2 of 3
Funding for this system has been approved in the City’s 2017 capital budget
and will exclusively come from SMG’s capital loan facility and/or combined with
ShoWare’s operating lifecycle fund to cover the $400,000 cost. Mr. Carrington
also stated that if there are any future adjustments to be made, those
requests would come back to committee.
L. Thomas moved to recommend Council to authorize the Mayor to sign all
necessary documents to enter into an agreement with Siriusware/Accesso to
replace the existing Point of Sale system, subject to final terms and
conditions acceptable to the Information Technology Director, and the City
Attorney, for a total amount not to exceed $455,000. D. Ralph seconded the
motion, which passed 2-0.
7. Community Engagement Coordinator Position – Information Only.
Communications and Public Affairs Manager Michelle Wilmot provided an
update to this new position that will supplement the City’s communication and
outreach efforts. Last year’s survey findings shows that 44 percent of those
polled believe the City is doing a good to excellent job of keeping the public
informed but diverse audiences require additional efforts.
The candidate will work with all city departments’ existing programs to fill-in
gaps, overlaps, and to leverage other programs to provide superior services to
our diverse communities. Job responsibilities include but are not limited to:
build upon existing social media strategies,
serve on the City’s Communications team,
assist with diversity engagement with the Neighborhood Programs
Coordinator as well as the 32 existing Neighborhood Councils,
staff the Cultural Communities Board,
support the Public Works grant for the Metro Transit Alternative Services
Demonstration Program,
city representative to the Kent Sister Cities Association,
assist HR with employment outreach, job fairs, and internship
opportunities, and
provide information/training to city employees as well as the community
to improve cultural understanding.
The job announcement was released to several outlets mid-June; if all goes as
planned the new hire will start mid-August 2017. This position was previously
approved in the 2017-2018 biennium adopted budget.
8. City Investment Report – Information Only.
Finance Director Aaron BeMiller and Senior Financial Analyst Joe Bartlemay
supplied information to the City’s first quarter investment report ending March
2
Operations Committee
Minutes
Approval Pending
Page 3 of 3
2017. This new format is unique to past reports as there are two investment
firms the City advises with, they are PFM and TVI. Each firm handles different
portfolios and supply separate reports, which are:
PFM managed portfolio: the City’s total investments were $24,881,448
with a market value of $24,879,643; the average yield is 1.570 percent,
and; the average days to maturity is 1002 days.
TVI managed portfolio: the City’s total investments were $10,000,143
with a market value of $9,979,551; the average yield is 1.480 percent,
and; the average days to maturity is 967 days.
Per policy, once a quarter the finance director shall submit a report to the
Committee that summarizes the City’s investment portfolio.
9. Director’s Report – Information Only.
Mr. BeMiller and Accounting and Reporting Manager Lavina Brennecke walked
members through the newly created 2017 Debt Manual. The comprehensive
manual was created as a central location of information that finance staff,
councilmembers and the public ca n utilize easily and will be updated every
year. The team that compiled the manual is Senior Accountant Dan Leahy,
Senior Financial Analyst Cheryl Lopez, and Financial Analyst Angella Fealy.
Committee members thanked all involved and noted how important and useful
the manual will be.
10. Adjournment.
The meeting was adjourned at 4:34 p.m. by D. Ralph.
J. Hays
Jennifer Hays
Operations Committee Secretary
3
This page intentionally left blank
4
INFORMATION TECHNOLOGY DEPARTMENT
Mike Carrington, Director
Phone: 253-856-4607
Fax: 253-856-4700
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: July 5, 2017
TO: Operations Committee
FROM: Mike Carrington, Information Technology Director
SUBJECT: ShoWare Europay, MasterCard and Visa (EMV) Chip Card
Readers - Recommend
MOTION: Authorize the Mayor to sign all necessary documents to enter an
agreement with Elavon to provide EMV chip card readers related to
bankcard transactions, subject to final terms and conditions acceptable to
the Information Technology Director and the City Attorney.
SUMMARY: SMG, partnering with the City of Kent, will be replacing the existing
POS system, including the primary POS application, POS hardware, credit card EMV
chip card readers and mobile devices with the addition of server/storage/database
solutions. The Elavon hardware required for the project will ensure regulatory
compliance, and meet the City of Kent’s Finance Department’s compliance
requirements for all devices taking bankcard transactions.
Because of time constraints to install the software systems, and hardware in time
for the fall season at ShoWare, staff has asked and the Council President has
authorized placement of this item on consent the same day it is passed out of
committee, on the condition that it is first unanimously approved by the Operations
Committee.
EXHIBITS:
A) Vendor Proposal
B) Terms of Service (TOS)
C) SAFE-T Services addendum to TOS
D) Service Website Addendum to TOS
E) Operating Guide
BUDGET IMPACT: In the current budget; cost is based on the type of credit card
used per transaction and the amount of each transaction. For these reasons total
annual cost cannot be exact, but total annual contract cost is expected to exceed
$65,000 per annum, so council approval is requested.
5
This page intentionally left blank
6
KENT
CITY OF KENT
INFORMATION TECHNOLOGY
220 4th Avenue South
Kent, WA 98032
Fax: 253-856-4700
PHONE: 253-856-4600WA5HINGTON
Memo
To:
From:
CC:
Date:
Re:
Suzette Cooke, Mayor
Annette Pape, Project Manager/Business Analyst
Mike Carrington, Information Technology Director
June 26, 20t7
Request for Waiver of competitive bid requirement for purchases under KCC
3.70.110(A) for Elavon EMV Credit Card Chip Readers
The ShoWare Center operator, SMG, needs a new Point of Sale (POS) system to update
and improve its ability to process purchases onsite and over the internet. An integral paft
to all POS systems are electronic chip card Readers. The readers are supplied to the City
of Kent's Finance, Parks, Coufts and PD by Elavon in order to meet regulatory compliance.
SMG, on our behalf, has surveyed the potential vendors available to offer new compliant
EMV Chip Card Readers, and has selected Elavon as its preferred vendor. SMG made this
choice on several factors including quality and reliability of the hardware/software of the
readers, ease of use by operator, interoperability with Heritage Banks payment
processing, and price.
In addition, Elavon will upgrade to new compliances as mandated, provide robust repofting
and insure the safety of transaction data to the banking institution, Heritage. Consistency
within the ShoWare operations and familiarity across product lines is a distinct benefìt to
SMG and hence, to the city, as the ShoWare Center owner.
For all these reasons, and after discussions with the city attorney, we feel that negotiation
of a direct purchase with Elavon meets the city's standards to waive competitive bidding
for the new chip card readers because the purchase is subject to special market conditions
(unique relationship between the city and Accesso/ShoWare/Siriusware), involves special
facilities (ShoWare Center), and is otherwise not in the city's best interests to go out to
bid underthese circumstances. See Kent City Code 5 3,70.110 (AX2) & (AX3).
Thank you very much for your time and consideration on this matter, If you concur with
this recommendation, please indicate your approval by signing below.
CITY OF KE
ate
ayor
7
This page intentionally left blank
8
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
1
AMENDMENT TO THE COMPANY APPLICATION
This Amendment to the Company Application (the “Amendment”) is entered into and effective
as of the Amendment Effective Date (defined below) by and between Elavon, Inc. (“Elavon”)
and City of Kent d/b/a ShoWare Center (Merchant Identification Number 8030203700),
(“Company”). This Amendment modifies and amends certain terms of the current Company
Application dated June 24, 2016 (the “Application”) as further set forth below and, except as
expressly agreed by the parties in writing, any successor or subsequent version of the
Application then-in-effect as periodically updated by Elavon. The Company Application, the
TOS and the Operating Guide, as well as all attachments, schedules and exhibits to any of the
foregoing, are collectively referred to herein as the (“Agreement”). Capitalized terms used and
not otherwise defined in this Amendment shall have the meanings ascribed to them elsewhere in
the Agreement.
NOW THEREFORE, in consideration of the mutual benefits accruing to the Parties hereto and
other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the Parties agree as follows:
ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL
COMPANIES
Section A – General Provisions
1) The following provisions hereby replace the like-numbered provisions of the Terms of
Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies
operating under the Agreement.
a) Section (A)(4)(d) Chargebacks is revised to read as follows:
“d. Chargebacks. Company is responsible to Elavon and Member for all Transactions
returned to Elavon or Member for whatever reason, including all Chargebacks. Company
will pay Elavon and Member for all Chargebacks. Company agrees to accept for
Chargeback, and will be liable to Elavon and Member in the amount of any Transaction
for which the Customer or Issuer disputes the validity of the Transaction for any reason
under the Payment Network Regulations. Company authorizes Elavon and Member to
offset from funds due Company for Transaction activity or to debit the DDA or the
Reserve Account for the amount of all Chargebacks including, as applicable, any
currency fluctuations. Company will fully cooperate with Elavon and Member in
complying with the Payment Network Regulations regarding all Chargebacks.”
b) Section (A)(5)(d) Indemnity is deleted.
c) Section (A)(6)(a)(i) Security Agreement is deleted.
d) Section (A)(6)(a)(ii) Perfection is deleted.
e) Section (A)(8)(a) Accuracy of Information is revised to read as follows:
9
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
2
“a. Accuracy of Information. Company represents and warrants to Member and Elavon
that all information provided to Elavon in the Company Application, in the bid process if
applicable, or otherwise in the Agreement is correct and complete. Company must
promptly notify Elavon in writing of any material changes to such information, including,
without limitation, any additional location or new facility at which Company desires to
use the Processing Services provided under this Addendum, the form of entity, change in
control, material changes to the type of goods and services provided and/or payments
accepted, and how Transactions are completed (e.g., by telephone, mail, electronic
commerce, or in person at Company’s place of business). The notice must be received by
Elavon at least ten (10) business days prior to the change. Company will promptly
provide any additional information reasonably requested by Elavon. Elavon has the right
to rely upon written instructions submitted by Company to request changes to Company’s
business information. Company may request written confirmation of Elavon’s consent to
the changes to the Company’s business information. Company will be responsible for all
losses and expenses incurred by Elavon or Member arising out of Company’s failure to
provide proper notice or requested information for any such change, and will not make
any claims against Elavon or Member for any losses sustained by Company as a result of
such failure. Elavon may immediately terminate the Agreement upon a material change
to the information in the Company Application if such change is not approved by
Elavon.”
f) Section (A)(8)(b) Indemnification is deleted and replaced with the following two
sections:
“i. Company Responsibilities. As between Company, Elavon and Member, Company
will be responsible for, and at its own expense, defend itself against any suits, claims,
losses, demands or damages arising out of or in connection with (A) any dispute with a
Customer, Cardholder or any third party relating to any Transaction, (B) any action taken
by Elavon or Member with respect to the DDA or Reserve Account in accordance with
the Agreement, or (C) any breach by Company of any obligation under this Agreement.
Company will not make any claims against Elavon or Member for any liabilities, claims
losses, costs, expenses and demands of any kind or nature, arising out of or in connection
with any of the foregoing suits, claims, losses, demands or damages.”
“ii. Elavon Responsibilities. Elavon will be responsible for and will at its own expense
defend itself against any suits, claims, losses, demands or damages arising out of (A)
Elavon’s breach of the Agreement, or (B) Elavon’s negligence, gross negligence or
willful misconduct.”
g) Section (A)(9)(a) Organization is revised to read as follows:
“a. Organization. Company is validly existing and duly organized under the laws of the
jurisdiction in which it was formed with all necessary authority, qualifications, licenses
and registrations necessary to conduct its business, in all jurisdictions where Company
conducts business.”
h) Section (A)(10)(a) Audit is revised to read as follows:
10
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
3
“a. Audit. In the event that Elavon or Member reasonably suspects that they are subject
to a financial or reputational risk due to Company’s actions or omissions, Company
authorizes Elavon and Member to perform an audit or inspection of Company’s
operations to confirm compliance with the Agreement upon reasonable advance notice
and at Elavon’s or Member’s expense. Company agrees to cooperate, in good faith, with
any such audit conducted by Elavon or Member. Further, Company acknowledges and
agrees that the Payment Networks have the right to audit Company’s business to confirm
compliance with the Payment Network Regulations.”
i) Section (A)(10)(b)(i) Authorizations is revised to read as follows:
“i. Authorizations. Company authorizes Elavon and Member to make, from time to
time, any business credit or other inquiries they consider necessary to review the
Company Application or continue to provide services under the Agreement. Company
also authorizes any person or credit reporting agency to compile information to answer
those credit inquiries and to furnish that information to Elavon.”
j) Section (A)(10)(b)(ii) Financial Information is revised to read as follows:
“ii. Financial Information. Upon the request of either Elavon or Member, Company
will provide Elavon and Member audited financial statements prepared by an
independent certified public accountant selected by Company, or if Company is audited
by a governmental authority, then Company will provide financial statements from such
governmental authority. Within one hundred twenty (120) days after the end of each
fiscal year (or in the case of a government entity, when available), Company will furnish
Elavon and Member, as requested, a financial statement of profit and loss for the fiscal
year and a balance sheet as of the end of the fiscal year, each audited as provided above.
Company shall also provide Elavon and Member such interim financial statements and
other information as Elavon or Member may request from time to time.”
k) Section (A)(13) Personal Guaranty is deleted.
l) Section (A)(14)(a) Products or Services is revised to read as follows:
“a. Products or Services. Company may desire to use a Value Added Servicer to assist
Company with its Transactions. Company shall not utilize any such third parties unless
Company has disclosed such use to Elavon previously in writing, and unless such Value
Added Servicer is fully compliant with all Laws and Payment Network Regulations. Any
Value Added Servicer used by Company must be registered with the Payment Networks
prior to the performance of any contracted services on behalf of Company. Further, as
between the parties to this Agreement, Company will be bound by the acts and omissions
of its Value Added Servicer and Company will be responsible for compliance by such
Value Added Servicer with all Laws and Payment Network Regulations. Company will
be responsible for any loss, cost, or expense incurred in connection with or by reason of
Company’s use of any third parties, including Value Added Servicers. Neither Elavon nor
Member is responsible for any Value Added Servicer or for the products or services
offered by such Value Added Servicer, nor are they responsible for any Transaction until
Elavon receives data for the Transaction in the format required by Elavon. A Value
11
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
4
Added Servicer’s access to or ability to integrate with the products, services and systems
of Elavon may terminate at any time and Elavon shall have no obligation to advise
Company of such termination.”
m) Section (A)(15)(b)(i) Termination, Company, the following is added as Section
(A)(15)(b)(i)(cc):
“cc. The Agreement may be terminated by Company in the event that sufficient
legislative appropriation is not available, provided that Company gives Elavon and
Member sixty (60) days’ notice prior to termination.”
n) Section (A)(15)(c)(iii) Return to Elavon is revised to read as follows:
“iii. Return to Elavon. All Confidential Information, promotional materials, advertising
displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms
supplied to Company and not purchased by Company or consumed in use will remain the
property of Elavon and must be returned to Elavon or destroyed within thirty (30) days
after termination of the Agreement.”
o) Section (A)(16)(d) MATCHTM and Consortium Company Negative File is revised to
read as follows:
“d. MATCHTM and Consortium Company Negative File. Company acknowledges
that Member and/or Elavon is required to report Company’s business name and the name
of Company’s principals to the MATCHTM listing maintained by MasterCard and
accessed and updated by Visa and American Express, to the Consortium Company
Negative File maintained by Discover, or to any other negative or terminated merchant
file of any other Payment Network, if applicable, pursuant to the requirements of the
Payment Network Regulations. Company specifically consents to the fulfillment of the
obligations related to the listing by Elavon and Member, the listing itself, and Company
waives all claims and liabilities Company hay have as a result of such reporting.”
p) Section (A)(16)(e) Security Program Compliance is revised to read as follows:
“e. Security Program Compliance. Company must comply with the requirements of the
Payment Card Industry (PCI) Data Security Standard (PCI DSS) including the
Cardholder Information Security Program (CISP) of Visa, the Site Data Protection
Program (SDP) of MasterCard, the Data Security DISC Program and the PCI DSS
regulations of Discover Network, and the security programs of any other Payment
Network or Issuer regarding which Company accepts a Payment Device, as applicable,
and any modifications to, or replacements of such programs that may occur from time to
time (collectively, “Security Programs”). Company shall also ensure that all Value Added
Servicers from whom Company procures services or third party POS Devices comply
with the requirements of the Security Programs. Upon request, Elavon will provide
Company with the respective website links to obtain the current requirements of the Visa,
MasterCard, and Discover Network Security Programs. Company is responsible for
Company’s own actions or inactions, those of Company’s officers, directors,
shareholders, employees and agents, including any Value Added Servicer (collectively,
“Company’s Agents”). Company shall be responsible for any liability, loss, cost, or
12
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
5
expense resulting from the violation of any of the Security Program requirements by
Company or any of Company’s Agents.”
q) Section (A)(17)(a) Use of Trademarks is revised to read as follows:
“a. Use of Trademarks. Company may use and display the promotional materials
provided by Elavon on Company’s premises as may be required or requested by the
Payment Networks. Company’s use of Visa, MasterCard and Discover Network marks,
as well as marks of other Payment Networks, will fully comply with the Payment
Network Regulations. Company’s right to use all such marks will terminated upon
termination of the Agreement or upon notice by a Payment Network to discontinue such
use. Company’s use of promotional materials provided by Visa, MasterCard, Discover
Network, and/or other Payment Networks will not indicate, directly or indirectly, that
Visa, MasterCard, Discover Network, or such other Payment Networks endorse any
goods or services other than their own and Company may not refer to Visa, MasterCard,
Discover Network or any other Payment Networks in stating eligibility for Company’s
products or services.”
r) Section (A)(17)(c) Passwords is revised to read as follows:
“c. Passwords. If Company receives a password from Elavon to access any of Elavon’s
databases or services Company will: (i) keep the password confidential; (ii) not allow any
other entity or person to use the password or gain access to Elavon’s databases or
services; (iii) be responsible for all action taken by any user of the password that obtained
access to the password from Company; and (iv) promptly notify Elavon if Company
believes Elavon’s databases or services or Company’s information has been
compromised by use of the password. If Company receives passwords from a third party
for products or services related to Transaction processing, Company must protect such
passwords in the manner required by such third party and be responsible any losses,
costs, or expenses that arise from Company’s use or misuse of such third party
passwords.”
s) Section (A)(18)(b) Governing Law in the United States is deleted.
t) Section (A)(18)(c) Jurisdiction and Venue; Governing Law in Canada is deleted.
u) Section (A)(18)(d) Exclusivity is deleted.
v) Section (A)(18)(f) Assignability is revised as follows:
“f. Assignability. The Agreement may not be assigned by Company, directly or by
operation of law, without the prior written consent of Elavon. If Company, nevertheless,
assigns the Agreement without Elavon’s consent, the Agreement will be binding on the
assignee as well as Company. Elavon will not transfer or assign the Agreement without
the prior written consent of Company, provided that such consent shall not be required
for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or
delegation to any Person into or with which Elavon shall merge or consolidate, or who
may acquire substantially all of Elavon’s stock or assets.”
13
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
6
w) Section (A)(18)(g) Arbitration is deleted.
x) Section (A)(18)(k) Attorney’s Fees is deleted.
y) Section (A)(18)(p) Amendments is revised as follows:
“p. Amendments. Except as otherwise provided in the Agreement, amendments to the
Agreement shall be in writing and signed by the parties. Notwithstanding the foregoing,
Elavon and Member may amend or modify the Agreement, to the extent such changes are
required by or attributable to changes in the Payment Network Regulations or other
Laws, upon written notice to Company. Elavon or Member will inform Company of such
a change in a periodic statement or other written notice, and such change will become
effective not less than thirty (30) days following the issuance of the notice.
Notwithstanding the previous sentence, changes to fees authorized by the Agreement will
be effective upon notice to Company, unless a later effective date is provided.”
z) Section (A)(19) Provisions Applicable to Company’s Acceptance of Transactions in
Canada is deleted but only if Company is not accepting transactions in Canada.
aa) Sections (A)(20)(h) Title; Quiet Enjoyment is replaced as follows:
“h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased
Equipment. All documents of title and evidence of delivery shall be delivered to Lessor.
Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement
or other instrument in respect to the lease showing the interest of Lessor in the Leased
Equipment including Uniform Commercial Code Financing Statements, to be filed or
recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s
name thereto. Lessee agrees to execute and deliver any statement or instrument requested
by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing,
recording or stamp fees or taxes arising from the filing or recording of any such
instrument or statement. Lessee shall at its expense, protect and defend Lessor’s title
against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever and, shall give Lessor
immediate notice thereof and shall be responsible for any loss caused thereby. Lessee
agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver
or other similar documents as Lessor may reasonably request. Provided Lessee is not in
default hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the
terms hereof.”
bb) Section (A)(20)(j) Net Lease; Taxes is replaced as follows:
“j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor,
and Lessee agrees to pay any applicable sales, use, excise, personal equipment, stamp,
documentary and ad valorem taxes, license and registration fees, assessment, fines,
penalties and similar charges imposed on the ownership, possession or use of the Leased
Equipment during the term of the lease. Lessee shall pay all applicable taxes (except
Lessor’s federal or state net income taxes) which may be imposed on Lessor or Lessee
with respect to the lease payments hereunder or the ownership of the Leased Equipment.
14
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
7
Lessee shall pay as additional rent, any applicable taxes documented as paid or advanced
by Lessor on behalf of Lessee. Lessee shall file personal equipment tax returns with
respect to the Leased Equipment.”
cc) Section (A)(20)(k) Indemnity is replaced as follows:
“k. Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible
for, and at its own expense, defend itself against any and all liability, damage or loss,
arising out of the ownership, selection, possession, leasing, operation, control, use,
condition, maintenance, delivery and return of the Leased Equipment. The obligations
herein provided shall continue in full force and effect notwithstanding the termination of
the lease.”
dd) Section (A)(20)(p) Remedies is replaced as follows:
“p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time
(i) declare immediately due and payable and recover from Lessee, as liquidated damages
for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid
rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided,
however, that if an Event of Default shall occur as described in Section (A)(20)(o)(iv)
through (vi) above, Lessor without any notice or action shall be deemed to have made
such a declaration; (ii) automatically charge the DDA for all money amounts owed; (iii)
to the extent permitted by applicable Law, without demand or legal process, enter into the
premises where the Leased Equipment may be found and take possession of and remove
the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or
otherwise dispose of any such Leased Equipment at a private or public sale; or (v)
exercise any other remedies available under applicable Law. In the event Lessor takes
possession of the Leased Equipment, Lessor shall give Lessee credit for any sums
received by Lessor from the sale or rental of the Leased Equipment after deduction of the
expenses of sale or rental and Lessee shall remain liable to Lessor for any deficiency.
Notwithstanding the foregoing, to the extent any software included with the Leased
Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or
the licensor of such software shall have no duty to remarket or otherwise mitigate any
damages relating to such software.
Lessee shall also be responsible for all expenses incurred by Lessor in connection with
the enforcement of any of Lessor’s remedies including all expenses of repossessing,
storing, shipping, repairing and selling the Leased Equipment. Lessor and Lessee
acknowledge the difficulty in establishing a value for the unexpired lease term and,
owing to such difficulty, agree that the provisions of this Section represent an agreed
measure of damages and are not to be deemed a forfeiture or penalty. All remedies of
Lessor hereunder are cumulative, are in addition to any other remedies provided for by
Law, and may, to the extent permitted by Law, be exercised concurrently or separately.
The exercise of any one remedy shall not be deemed to be an election of such remedy or
to preclude the exercise of any other remedy. No failure on the part of the Lessor to
exercise and no delay in exercising any right to remedy shall operate as a waiver thereof
or modify the terms of the lease.”
15
Showare Center Amendment 8030203700 (v.6.23.17) FINAL
8
ee) Section (A)(20)(s) Miscellaneous is replaced as follows:
“s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be
paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition
to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each
late payment. Each month the past due payment remains unpaid, an additional late fee in
the amount defined will be assessed. Payments are applied to late fees and service
charges first and then to the lease obligation. Amounts shall be payable in addition to all
amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein
provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an
applicable fee for delivery of such services. Lessee shall inform Lessor of any change in
Lessee’s name, address, billing address, telephone numbers, location of the Leased
Equipment, or DDA. In the event Lessee fails to comply with any provision of the lease,
Lessor shall have the right, but not be obligated, to affect such compliance on behalf of
Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies
expended by, and all expenses of Lessor in effecting such compliance, shall be deemed to
be additional rental, and shall be paid by Lessee at the time of the next monthly payment
of rent. All notices under the lease shall be sufficient if given personally or mailed
postage prepaid to the party intended at the respective address set forth herein, or at such
other address as said party may provide in writing from time to time. The lease inures to
the benefit of and is binding upon the personal representatives, successors and assigns of
the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease
to be a valid and subsisting legal instrument, and agree that no provision of the lease that
may be deemed unenforceable shall in any way invalidate any other provision or
provisions of the lease, all of which shall remain in full force and effect. The lease shall
be binding when accepted in writing by Lessor and shall be governed by the laws of the
state where the Leased Equipment is located.”
ff) Section (A)(20)(t) Important Information about Credit Reporting is deleted.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment.
CITY OF KENT d/b/a ShoWare Center
(MID 8030203668)
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
ELAVON, INC.
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
(the “Amendment Effective Date”)
16
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
1
AMENDMENT TO THE COMPANY APPLICATION
This Amendment to the Company Application (the “Amendment”) is entered into and effective
as of the Amendment Effective Date (defined below) by and between Elavon, Inc. (“Elavon”)
and City of Kent d/b/a ShoWare Center Box Office (Merchant Identification Number
8030203668), (“Company”). This Amendment modifies and amends certain terms of the
current Company Application dated June 24, 2016 (the “Application”) as further set forth below
and, except as expressly agreed by the parties in writing, any successor or subsequent version of
the Application then-in-effect as periodically updated by Elavon. The Company Application, the
TOS and the Operating Guide, as well as all attachments, schedules and exhibits to any of the
foregoing, are collectively referred to herein as the (“Agreement”). Capitalized terms used and
not otherwise defined in this Amendment shall have the meanings ascribed to them elsewhere in
the Agreement.
NOW THEREFORE, in consideration of the mutual benefits accruing to the Parties hereto and
other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the Parties agree as follows:
ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL
COMPANIES
Section A – General Provisions
1) The following provisions hereby replace the like-numbered provisions of the Terms of
Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies
operating under the Agreement.
a) Section (A)(4)(d) Chargebacks is revised to read as follows:
“d. Chargebacks. Company is responsible to Elavon and Member for all Transactions
returned to Elavon or Member for whatever reason, including all Chargebacks. Company
will pay Elavon and Member for all Chargebacks. Company agrees to accept for
Chargeback, and will be liable to Elavon and Member in the amount of any Transaction
for which the Customer or Issuer disputes the validity of the Transaction for any reason
under the Payment Network Regulations. Company authorizes Elavon and Member to
offset from funds due Company for Transaction activity or to debit the DDA or the
Reserve Account for the amount of all Chargebacks including, as applicable, any
currency fluctuations. Company will fully cooperate with Elavon and Member in
complying with the Payment Network Regulations regarding all Chargebacks.”
b) Section (A)(5)(d) Indemnity is deleted.
c) Section (A)(6)(a)(i) Security Agreement is deleted.
d) Section (A)(6)(a)(ii) Perfection is deleted.
e) Section (A)(8)(a) Accuracy of Information is revised to read as follows:
17
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
2
“a. Accuracy of Information. Company represents and warrants to Member and Elavon
that all information provided to Elavon in the Company Application, in the bid process if
applicable, or otherwise in the Agreement is correct and complete. Company must
promptly notify Elavon in writing of any material changes to such information, including,
without limitation, any additional location or new facility at which Company desires to
use the Processing Services provided under this Addendum, the form of entity, change in
control, material changes to the type of goods and services provided and/or payments
accepted, and how Transactions are completed (e.g., by telephone, mail, electronic
commerce, or in person at Company’s place of business). The notice must be received by
Elavon at least ten (10) business days prior to the change. Company will promptly
provide any additional information reasonably requested by Elavon. Elavon has the right
to rely upon written instructions submitted by Company to request changes to Company’s
business information. Company may request written confirmation of Elavon’s consent to
the changes to the Company’s business information. Company will be responsible for all
losses and expenses incurred by Elavon or Member arising out of Company’s failure to
provide proper notice or requested information for any such change, and will not make
any claims against Elavon or Member for any losses sustained by Company as a result of
such failure. Elavon may immediately terminate the Agreement upon a material change
to the information in the Company Application if such change is not approved by
Elavon.”
f) Section (A)(8)(b) Indemnification is deleted and replaced with the following two
sections:
“i. Company Responsibilities. As between Company, Elavon and Member, Company
will be responsible for, and at its own expense, defend itself against any suits, claims,
losses, demands or damages arising out of or in connection with (A) any dispute with a
Customer, Cardholder or any third party relating to any Transaction, (B) any action taken
by Elavon or Member with respect to the DDA or Reserve Account in accordance with
the Agreement, or (C) any breach by Company of any obligation under this Agreement.
Company will not make any claims against Elavon or Member for any liabilities, claims
losses, costs, expenses and demands of any kind or nature, arising out of or in connection
with any of the foregoing suits, claims, losses, demands or damages.”
“ii. Elavon Responsibilities. Elavon will be responsible for and will at its own expense
defend itself against any suits, claims, losses, demands or damages arising out of (A)
Elavon’s breach of the Agreement, or (B) Elavon’s negligence, gross negligence or
willful misconduct.”
g) Section (A)(9)(a) Organization is revised to read as follows:
“a. Organization. Company is validly existing and duly organized under the laws of the
jurisdiction in which it was formed with all necessary authority, qualifications, licenses
and registrations necessary to conduct its business, in all jurisdictions where Company
conducts business.”
h) Section (A)(10)(a) Audit is revised to read as follows:
18
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
3
“a. Audit. In the event that Elavon or Member reasonably suspects that they are subject
to a financial or reputational risk due to Company’s actions or omissions, Company
authorizes Elavon and Member to perform an audit or inspection of Company’s
operations to confirm compliance with the Agreement upon reasonable advance notice
and at Elavon’s or Member’s expense. Company agrees to cooperate, in good faith, with
any such audit conducted by Elavon or Member. Further, Company acknowledges and
agrees that the Payment Networks have the right to audit Company’s business to confirm
compliance with the Payment Network Regulations.”
i) Section (A)(10)(b)(i) Authorizations is revised to read as follows:
“i. Authorizations. Company authorizes Elavon and Member to make, from time to time,
any business credit or other inquiries they consider necessary to review the Company
Application or continue to provide services under the Agreement. Company also
authorizes any person or credit reporting agency to compile information to answer those
credit inquiries and to furnish that information to Elavon.”
j) Section (A)(10)(b)(ii) Financial Information is revised to read as follows:
“ii. Financial Information. Upon the request of either Elavon or Member, Company
will provide Elavon and Member audited financial statements prepared by an
independent certified public accountant selected by Company, or if Company is audited
by a governmental authority, then Company will provide financial statements from such
governmental authority. Within one hundred twenty (120) days after the end of each
fiscal year (or in the case of a government entity, when available), Company will furnish
Elavon and Member, as requested, a financial statement of profit and loss for the fiscal
year and a balance sheet as of the end of the fiscal year, each audited as provided above.
Company shall also provide Elavon and Member such interim financial statements and
other information as Elavon or Member may request from time to time.”
k) Section (A)(13) Personal Guaranty is deleted.
l) Section (A)(14)(a) Products or Services is revised to read as follows:
“a. Products or Services. Company may desire to use a Value Added Servicer to assist
Company with its Transactions. Company shall not utilize any such third parties unless
Company has disclosed such use to Elavon previously in writing, and unless such Value
Added Servicer is fully compliant with all Laws and Payment Network Regulations. Any
Value Added Servicer used by Company must be registered with the Payment Networks
prior to the performance of any contracted services on behalf of Company. Further, as
between the parties to this Agreement, Company will be bound by the acts and omissions
of its Value Added Servicer and Company will be responsible for compliance by such
Value Added Servicer with all Laws and Payment Network Regulations. Company will
be responsible for any loss, cost, or expense incurred in connection with or by reason of
Company’s use of any third parties, including Value Added Servicers. Neither Elavon nor
Member is responsible for any Value Added Servicer or for the products or services
offered by such Value Added Servicer, nor are they responsible for any Transaction until
Elavon receives data for the Transaction in the format required by Elavon. A Value
19
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
4
Added Servicer’s access to or ability to integrate with the products, services and systems
of Elavon may terminate at any time and Elavon shall have no obligation to advise
Company of such termination.”
m) Section (A)(15)(b)(i) Termination, Company, the following is added as Section
(A)(15)(b)(i)(cc):
“cc. The Agreement may be terminated by Company in the event that sufficient
legislative appropriation is not available, provided that Company gives Elavon and
Member sixty (60) days’ notice prior to termination.”
n) Section (A)(15)(c)(iii) Return to Elavon is revised to read as follows:
“iii. Return to Elavon. All Confidential Information, promotional materials, advertising
displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms
supplied to Company and not purchased by Company or consumed in use will remain the
property of Elavon and must be returned to Elavon or destroyed within thirty (30) days
after termination of the Agreement.”
o) Section (A)(16)(d) MATCHTM and Consortium Company Negative File is revised to
read as follows:
“d. MATCHTM and Consortium Company Negative File. Company acknowledges
that Member and/or Elavon is required to report Company’s business name and the name
of Company’s principals to the MATCHTM listing maintained by MasterCard and
accessed and updated by Visa and American Express, to the Consortium Company
Negative File maintained by Discover, or to any other negative or terminated merchant
file of any other Payment Network, if applicable, pursuant to the requirements of the
Payment Network Regulations. Company specifically consents to the fulfillment of the
obligations related to the listing by Elavon and Member, the listing itself, and Company
waives all claims and liabilities Company hay have as a result of such reporting.”
p) Section (A)(16)(e) Security Program Compliance is revised to read as follows:
“e. Security Program Compliance. Company must comply with the requirements of the
Payment Card Industry (PCI) Data Security Standard (PCI DSS) including the
Cardholder Information Security Program (CISP) of Visa, the Site Data Protection
Program (SDP) of MasterCard, the Data Security DISC Program and the PCI DSS
regulations of Discover Network, and the security programs of any other Payment
Network or Issuer regarding which Company accepts a Payment Device, as applicable,
and any modifications to, or replacements of such programs that may occur from time to
time (collectively, “Security Programs”). Company shall also ensure that all Value Added
Servicers from whom Company procures services or third party POS Devices comply
with the requirements of the Security Programs. Upon request, Elavon will provide
Company with the respective website links to obtain the current requirements of the Visa,
MasterCard, and Discover Network Security Programs. Company is responsible for
Company’s own actions or inactions, those of Company’s officers, directors,
shareholders, employees and agents, including any Value Added Servicer (collectively,
“Company’s Agents”). Company shall be responsible for any liability, loss, cost, or
20
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
5
expense resulting from the violation of any of the Security Program requirements by
Company or any of Company’s Agents.”
q) Section (A)(17)(a) Use of Trademarks is revised to read as follows:
“a. Use of Trademarks. Company may use and display the promotional materials
provided by Elavon on Company’s premises as may be required or requested by the
Payment Networks. Company’s use of Visa, MasterCard and Discover Network marks,
as well as marks of other Payment Networks, will fully comply with the Payment
Network Regulations. Company’s right to use all such marks will terminated upon
termination of the Agreement or upon notice by a Payment Network to discontinue such
use. Company’s use of promotional materials provided by Visa, MasterCard, Discover
Network, and/or other Payment Networks will not indicate, directly or indirectly, that
Visa, MasterCard, Discover Network, or such other Payment Networks endorse any
goods or services other than their own and Company may not refer to Visa, MasterCard,
Discover Network or any other Payment Networks in stating eligibility for Company’s
products or services.”
r) Section (A)(17)(c) Passwords is revised to read as follows:
“c. Passwords. If Company receives a password from Elavon to access any of Elavon’s
databases or services Company will: (i) keep the password confidential; (ii) not allow any
other entity or person to use the password or gain access to Elavon’s databases or
services; (iii) be responsible for all action taken by any user of the password that obtained
access to the password from Company; and (iv) promptly notify Elavon if Company
believes Elavon’s databases or services or Company’s information has been
compromised by use of the password. If Company receives passwords from a third party
for products or services related to Transaction processing, Company must protect such
passwords in the manner required by such third party and be responsible any losses,
costs, or expenses that arise from Company’s use or misuse of such third party
passwords.”
s) Section (A)(18)(b) Governing Law in the United States is deleted.
t) Section (A)(18)(c) Jurisdiction and Venue; Governing Law in Canada is deleted.
u) Section (A)(18)(d) Exclusivity is deleted.
v) Section (A)(18)(f) Assignability is revised as follows:
“f. Assignability. The Agreement may not be assigned by Company, directly or by
operation of law, without the prior written consent of Elavon. If Company, nevertheless,
assigns the Agreement without Elavon’s consent, the Agreement will be binding on the
assignee as well as Company. Elavon will not transfer or assign the Agreement without
the prior written consent of Company, provided that such consent shall not be required
for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or
delegation to any Person into or with which Elavon shall merge or consolidate, or who
may acquire substantially all of Elavon’s stock or assets.”
21
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
6
w) Section (A)(18)(g) Arbitration is deleted.
x) Section (A)(18)(k) Attorney’s Fees is deleted.
y) Section (A)(18)(p) Amendments is revised as follows:
“p. Amendments. Except as otherwise provided in the Agreement, amendments to the
Agreement shall be in writing and signed by the parties. Notwithstanding the foregoing,
Elavon and Member may amend or modify the Agreement, to the extent such changes are
required by or attributable to changes in the Payment Network Regulations or other
Laws, upon written notice to Company. Elavon or Member will inform Company of such
a change in a periodic statement or other written notice, and such change will become
effective not less than thirty (30) days following the issuance of the notice.
Notwithstanding the previous sentence, changes to fees authorized by the Agreement will
be effective upon notice to Company, unless a later effective date is provided.”
z) Section (A)(19) Provisions Applicable to Company’s Acceptance of Transactions in
Canada is deleted but only if Company is not accepting transactions in Canada.
aa) Sections (A)(20)(h) Title; Quiet Enjoyment is replaced as follows:
“h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased
Equipment. All documents of title and evidence of delivery shall be delivered to Lessor.
Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement
or other instrument in respect to the lease showing the interest of Lessor in the Leased
Equipment including Uniform Commercial Code Financing Statements, to be filed or
recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s
name thereto. Lessee agrees to execute and deliver any statement or instrument requested
by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing,
recording or stamp fees or taxes arising from the filing or recording of any such
instrument or statement. Lessee shall at its expense, protect and defend Lessor’s title
against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever and, shall give Lessor
immediate notice thereof and shall be responsible for any loss caused thereby. Lessee
agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver
or other similar documents as Lessor may reasonably request. Provided Lessee is not in
default hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the
terms hereof.”
bb) Section (A)(20)(j) Net Lease; Taxes is replaced as follows:
“j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor,
and Lessee agrees to pay any applicable sales, use, excise, personal equipment, stamp,
documentary and ad valorem taxes, license and registration fees, assessment, fines,
penalties and similar charges imposed on the ownership, possession or use of the Leased
Equipment during the term of the lease. Lessee shall pay all applicable taxes (except
Lessor’s federal or state net income taxes) which may be imposed on Lessor or Lessee
with respect to the lease payments hereunder or the ownership of the Leased Equipment.
22
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
7
Lessee shall pay as additional rent, any applicable taxes documented as paid or advanced
by Lessor on behalf of Lessee. Lessee shall file personal equipment tax returns with
respect to the Leased Equipment.”
cc) Section (A)(20)(k) Indemnity is replaced as follows:
“k. Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible
for, and at its own expense, defend itself against any and all liability, damage or loss,
arising out of the ownership, selection, possession, leasing, operation, control, use,
condition, maintenance, delivery and return of the Leased Equipment. The obligations
herein provided shall continue in full force and effect notwithstanding the termination of
the lease.”
dd) Section (A)(20)(p) Remedies is replaced as follows:
“p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time
(i) declare immediately due and payable and recover from Lessee, as liquidated damages
for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid
rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided,
however, that if an Event of Default shall occur as described in Section (A)(20)(o)(iv)
through (vi) above, Lessor without any notice or action shall be deemed to have made
such a declaration; (ii) automatically charge the DDA for all money amounts owed; (iii)
to the extent permitted by applicable Law, without demand or legal process, enter into the
premises where the Leased Equipment may be found and take possession of and remove
the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or
otherwise dispose of any such Leased Equipment at a private or public sale; or (v)
exercise any other remedies available under applicable Law. In the event Lessor takes
possession of the Leased Equipment, Lessor shall give Lessee credit for any sums
received by Lessor from the sale or rental of the Leased Equipment after deduction of the
expenses of sale or rental and Lessee shall remain liable to Lessor for any deficiency.
Notwithstanding the foregoing, to the extent any software included with the Leased
Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or
the licensor of such software shall have no duty to remarket or otherwise mitigate any
damages relating to such software.
Lessee shall also be responsible for all expenses incurred by Lessor in connection with
the enforcement of any of Lessor’s remedies including all expenses of repossessing,
storing, shipping, repairing and selling the Leased Equipment. Lessor and Lessee
acknowledge the difficulty in establishing a value for the unexpired lease term and,
owing to such difficulty, agree that the provisions of this Section represent an agreed
measure of damages and are not to be deemed a forfeiture or penalty. All remedies of
Lessor hereunder are cumulative, are in addition to any other remedies provided for by
Law, and may, to the extent permitted by Law, be exercised concurrently or separately.
The exercise of any one remedy shall not be deemed to be an election of such remedy or
to preclude the exercise of any other remedy. No failure on the part of the Lessor to
exercise and no delay in exercising any right to remedy shall operate as a waiver thereof
or modify the terms of the lease.”
ee) Section (A)(20)(s) Miscellaneous is replaced as follows:
23
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
8
“s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be
paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition
to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each
late payment. Each month the past due payment remains unpaid, an additional late fee in
the amount defined will be assessed. Payments are applied to late fees and service
charges first and then to the lease obligation. Amounts shall be payable in addition to all
amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein
provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an
applicable fee for delivery of such services. Lessee shall inform Lessor of any change in
Lessee’s name, address, billing address, telephone numbers, location of the Leased
Equipment, or DDA. In the event Lessee fails to comply with any provision of the lease,
Lessor shall have the right, but not be obligated, to affect such compliance on behalf of
Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies
expended by, and all expenses of Lessor in effecting such compliance, shall be deemed to
be additional rental, and shall be paid by Lessee at the time of the next monthly payment
of rent. All notices under the lease shall be sufficient if given personally or mailed
postage prepaid to the party intended at the respective address set forth herein, or at such
other address as said party may provide in writing from time to time. The lease inures to
the benefit of and is binding upon the personal representatives, successors and assigns of
the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease
to be a valid and subsisting legal instrument, and agree that no provision of the lease that
may be deemed unenforceable shall in any way invalidate any other provision or
provisions of the lease, all of which shall remain in full force and effect. The lease shall
be binding when accepted in writing by Lessor and shall be governed by the laws of the
state where the Leased Equipment is located.”
ff) Section (A)(20)(t) Important Information about Credit Reporting is deleted.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment.
CITY OF KENT d/b/a ShoWare Center
Box Office (MID 8030203668)
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
ELAVON, INC.
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
(the “Amendment Effective Date”)
24
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
1
AMENDMENT TO THE COMPANY APPLICATION
This Amendment to the Company Application (the “Amendment”) is entered into and effective
as of the Amendment Effective Date (defined below) by and between Elavon, Inc. (“Elavon”)
and City of Kent d/b/a ShoWare Center Box Office (Merchant Identification Number
8030203668), (“Company”). This Amendment modifies and amends certain terms of the
current Company Application dated June 24, 2016 (the “Application”) as further set forth below
and, except as expressly agreed by the parties in writing, any successor or subsequent version of
the Application then-in-effect as periodically updated by Elavon. The Company Application, the
TOS and the Operating Guide, as well as all attachments, schedules and exhibits to any of the
foregoing, are collectively referred to herein as the (“Agreement”). Capitalized terms used and
not otherwise defined in this Amendment shall have the meanings ascribed to them elsewhere in
the Agreement.
NOW THEREFORE, in consideration of the mutual benefits accruing to the Parties hereto and
other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the Parties agree as follows:
ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL
COMPANIES
Section A – General Provisions
1) The following provisions hereby replace the like-numbered provisions of the Terms of
Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies
operating under the Agreement.
a) Section (A)(4)(d) Chargebacks is revised to read as follows:
“d. Chargebacks. Company is responsible to Elavon and Member for all Transactions
returned to Elavon or Member for whatever reason, including all Chargebacks. Company
will pay Elavon and Member for all Chargebacks. Company agrees to accept for
Chargeback, and will be liable to Elavon and Member in the amount of any Transaction
for which the Customer or Issuer disputes the validity of the Transaction for any reason
under the Payment Network Regulations. Company authorizes Elavon and Member to
offset from funds due Company for Transaction activity or to debit the DDA or the
Reserve Account for the amount of all Chargebacks including, as applicable, any
currency fluctuations. Company will fully cooperate with Elavon and Member in
complying with the Payment Network Regulations regarding all Chargebacks.”
b) Section (A)(5)(d) Indemnity is deleted.
c) Section (A)(6)(a)(i) Security Agreement is deleted.
d) Section (A)(6)(a)(ii) Perfection is deleted.
e) Section (A)(8)(a) Accuracy of Information is revised to read as follows:
25
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
2
“a. Accuracy of Information. Company represents and warrants to Member and Elavon
that all information provided to Elavon in the Company Application, in the bid process if
applicable, or otherwise in the Agreement is correct and complete. Company must
promptly notify Elavon in writing of any material changes to such information, including,
without limitation, any additional location or new facility at which Company desires to
use the Processing Services provided under this Addendum, the form of entity, change in
control, material changes to the type of goods and services provided and/or payments
accepted, and how Transactions are completed (e.g., by telephone, mail, electronic
commerce, or in person at Company’s place of business). The notice must be received by
Elavon at least ten (10) business days prior to the change. Company will promptly
provide any additional information reasonably requested by Elavon. Elavon has the right
to rely upon written instructions submitted by Company to request changes to Company’s
business information. Company may request written confirmation of Elavon’s consent to
the changes to the Company’s business information. Company will be responsible for all
losses and expenses incurred by Elavon or Member arising out of Company’s failure to
provide proper notice or requested information for any such change, and will not make
any claims against Elavon or Member for any losses sustained by Company as a result of
such failure. Elavon may immediately terminate the Agreement upon a material change
to the information in the Company Application if such change is not approved by
Elavon.”
f) Section (A)(8)(b) Indemnification is deleted and replaced with the following two
sections:
“i. Company Responsibilities. As between Company, Elavon and Member, Company
will be responsible for, and at its own expense, defend itself against any suits, claims,
losses, demands or damages arising out of or in connection with (A) any dispute with a
Customer, Cardholder or any third party relating to any Transaction, (B) any action taken
by Elavon or Member with respect to the DDA or Reserve Account in accordance with
the Agreement, or (C) any breach by Company of any obligation under this Agreement.
Company will not make any claims against Elavon or Member for any liabilities, claims
losses, costs, expenses and demands of any kind or nature, arising out of or in connection
with any of the foregoing suits, claims, losses, demands or damages.”
“ii. Elavon Responsibilities. Elavon will be responsible for and will at its own expense
defend itself against any suits, claims, losses, demands or damages arising out of (A)
Elavon’s breach of the Agreement, or (B) Elavon’s negligence, gross negligence or
willful misconduct.”
g) Section (A)(9)(a) Organization is revised to read as follows:
“a. Organization. Company is validly existing and duly organized under the laws of the
jurisdiction in which it was formed with all necessary authority, qualifications, licenses
and registrations necessary to conduct its business, in all jurisdictions where Company
conducts business.”
h) Section (A)(10)(a) Audit is revised to read as follows:
26
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
3
“a. Audit. In the event that Elavon or Member reasonably suspects that they are subject
to a financial or reputational risk due to Company’s actions or omissions, Company
authorizes Elavon and Member to perform an audit or inspection of Company’s
operations to confirm compliance with the Agreement upon reasonable advance notice
and at Elavon’s or Member’s expense. Company agrees to cooperate, in good faith, with
any such audit conducted by Elavon or Member. Further, Company acknowledges and
agrees that the Payment Networks have the right to audit Company’s business to confirm
compliance with the Payment Network Regulations.”
i) Section (A)(10)(b)(i) Authorizations is revised to read as follows:
“i. Authorizations. Company authorizes Elavon and Member to make, from time to time,
any business credit or other inquiries they consider necessary to review the Company
Application or continue to provide services under the Agreement. Company also
authorizes any person or credit reporting agency to compile information to answer those
credit inquiries and to furnish that information to Elavon.”
j) Section (A)(10)(b)(ii) Financial Information is revised to read as follows:
“ii. Financial Information. Upon the request of either Elavon or Member, Company
will provide Elavon and Member audited financial statements prepared by an
independent certified public accountant selected by Company, or if Company is audited
by a governmental authority, then Company will provide financial statements from such
governmental authority. Within one hundred twenty (120) days after the end of each
fiscal year (or in the case of a government entity, when available), Company will furnish
Elavon and Member, as requested, a financial statement of profit and loss for the fiscal
year and a balance sheet as of the end of the fiscal year, each audited as provided above.
Company shall also provide Elavon and Member such interim financial statements and
other information as Elavon or Member may request from time to time.”
k) Section (A)(13) Personal Guaranty is deleted.
l) Section (A)(14)(a) Products or Services is revised to read as follows:
“a. Products or Services. Company may desire to use a Value Added Servicer to assist
Company with its Transactions. Company shall not utilize any such third parties unless
Company has disclosed such use to Elavon previously in writing, and unless such Value
Added Servicer is fully compliant with all Laws and Payment Network Regulations. Any
Value Added Servicer used by Company must be registered with the Payment Networks
prior to the performance of any contracted services on behalf of Company. Further, as
between the parties to this Agreement, Company will be bound by the acts and omissions
of its Value Added Servicer and Company will be responsible for compliance by such
Value Added Servicer with all Laws and Payment Network Regulations. Company will
be responsible for any loss, cost, or expense incurred in connection with or by reason of
Company’s use of any third parties, including Value Added Servicers. Neither Elavon nor
Member is responsible for any Value Added Servicer or for the products or services
offered by such Value Added Servicer, nor are they responsible for any Transaction until
Elavon receives data for the Transaction in the format required by Elavon. A Value
27
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
4
Added Servicer’s access to or ability to integrate with the products, services and systems
of Elavon may terminate at any time and Elavon shall have no obligation to advise
Company of such termination.”
m) Section (A)(15)(b)(i) Termination, Company, the following is added as Section
(A)(15)(b)(i)(cc):
“cc. The Agreement may be terminated by Company in the event that sufficient
legislative appropriation is not available, provided that Company gives Elavon and
Member sixty (60) days’ notice prior to termination.”
n) Section (A)(15)(c)(iii) Return to Elavon is revised to read as follows:
“iii. Return to Elavon. All Confidential Information, promotional materials, advertising
displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms
supplied to Company and not purchased by Company or consumed in use will remain the
property of Elavon and must be returned to Elavon or destroyed within thirty (30) days
after termination of the Agreement.”
o) Section (A)(16)(d) MATCHTM and Consortium Company Negative File is revised to
read as follows:
“d. MATCHTM and Consortium Company Negative File. Company acknowledges
that Member and/or Elavon is required to report Company’s business name and the name
of Company’s principals to the MATCHTM listing maintained by MasterCard and
accessed and updated by Visa and American Express, to the Consortium Company
Negative File maintained by Discover, or to any other negative or terminated merchant
file of any other Payment Network, if applicable, pursuant to the requirements of the
Payment Network Regulations. Company specifically consents to the fulfillment of the
obligations related to the listing by Elavon and Member, the listing itself, and Company
waives all claims and liabilities Company hay have as a result of such reporting.”
p) Section (A)(16)(e) Security Program Compliance is revised to read as follows:
“e. Security Program Compliance. Company must comply with the requirements of the
Payment Card Industry (PCI) Data Security Standard (PCI DSS) including the
Cardholder Information Security Program (CISP) of Visa, the Site Data Protection
Program (SDP) of MasterCard, the Data Security DISC Program and the PCI DSS
regulations of Discover Network, and the security programs of any other Payment
Network or Issuer regarding which Company accepts a Payment Device, as applicable,
and any modifications to, or replacements of such programs that may occur from time to
time (collectively, “Security Programs”). Company shall also ensure that all Value Added
Servicers from whom Company procures services or third party POS Devices comply
with the requirements of the Security Programs. Upon request, Elavon will provide
Company with the respective website links to obtain the current requirements of the Visa,
MasterCard, and Discover Network Security Programs. Company is responsible for
Company’s own actions or inactions, those of Company’s officers, directors,
shareholders, employees and agents, including any Value Added Servicer (collectively,
“Company’s Agents”). Company shall be responsible for any liability, loss, cost, or
28
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
5
expense resulting from the violation of any of the Security Program requirements by
Company or any of Company’s Agents.”
q) Section (A)(17)(a) Use of Trademarks is revised to read as follows:
“a. Use of Trademarks. Company may use and display the promotional materials
provided by Elavon on Company’s premises as may be required or requested by the
Payment Networks. Company’s use of Visa, MasterCard and Discover Network marks,
as well as marks of other Payment Networks, will fully comply with the Payment
Network Regulations. Company’s right to use all such marks will terminated upon
termination of the Agreement or upon notice by a Payment Network to discontinue such
use. Company’s use of promotional materials provided by Visa, MasterCard, Discover
Network, and/or other Payment Networks will not indicate, directly or indirectly, that
Visa, MasterCard, Discover Network, or such other Payment Networks endorse any
goods or services other than their own and Company may not refer to Visa, MasterCard,
Discover Network or any other Payment Networks in stating eligibility for Company’s
products or services.”
r) Section (A)(17)(c) Passwords is revised to read as follows:
“c. Passwords. If Company receives a password from Elavon to access any of Elavon’s
databases or services Company will: (i) keep the password confidential; (ii) not allow any
other entity or person to use the password or gain access to Elavon’s databases or
services; (iii) be responsible for all action taken by any user of the password that obtained
access to the password from Company; and (iv) promptly notify Elavon if Company
believes Elavon’s databases or services or Company’s information has been
compromised by use of the password. If Company receives passwords from a third party
for products or services related to Transaction processing, Company must protect such
passwords in the manner required by such third party and be responsible any losses,
costs, or expenses that arise from Company’s use or misuse of such third party
passwords.”
s) Section (A)(18)(b) Governing Law in the United States is deleted.
t) Section (A)(18)(c) Jurisdiction and Venue; Governing Law in Canada is deleted.
u) Section (A)(18)(d) Exclusivity is deleted.
v) Section (A)(18)(f) Assignability is revised as follows:
“f. Assignability. The Agreement may not be assigned by Company, directly or by
operation of law, without the prior written consent of Elavon. If Company, nevertheless,
assigns the Agreement without Elavon’s consent, the Agreement will be binding on the
assignee as well as Company. Elavon will not transfer or assign the Agreement without
the prior written consent of Company, provided that such consent shall not be required
for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or
delegation to any Person into or with which Elavon shall merge or consolidate, or who
may acquire substantially all of Elavon’s stock or assets.”
29
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
6
w) Section (A)(18)(g) Arbitration is deleted.
x) Section (A)(18)(k) Attorney’s Fees is deleted.
y) Section (A)(18)(p) Amendments is revised as follows:
“p. Amendments. Except as otherwise provided in the Agreement, amendments to the
Agreement shall be in writing and signed by the parties. Notwithstanding the foregoing,
Elavon and Member may amend or modify the Agreement, to the extent such changes are
required by or attributable to changes in the Payment Network Regulations or other
Laws, upon written notice to Company. Elavon or Member will inform Company of such
a change in a periodic statement or other written notice, and such change will become
effective not less than thirty (30) days following the issuance of the notice.
Notwithstanding the previous sentence, changes to fees authorized by the Agreement will
be effective upon notice to Company, unless a later effective date is provided.”
z) Section (A)(19) Provisions Applicable to Company’s Acceptance of Transactions in
Canada is deleted but only if Company is not accepting transactions in Canada.
aa) Sections (A)(20)(h) Title; Quiet Enjoyment is replaced as follows:
“h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased
Equipment. All documents of title and evidence of delivery shall be delivered to Lessor.
Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement
or other instrument in respect to the lease showing the interest of Lessor in the Leased
Equipment including Uniform Commercial Code Financing Statements, to be filed or
recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s
name thereto. Lessee agrees to execute and deliver any statement or instrument requested
by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing,
recording or stamp fees or taxes arising from the filing or recording of any such
instrument or statement. Lessee shall at its expense, protect and defend Lessor’s title
against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever and, shall give Lessor
immediate notice thereof and shall be responsible for any loss caused thereby. Lessee
agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver
or other similar documents as Lessor may reasonably request. Provided Lessee is not in
default hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the
terms hereof.”
bb) Section (A)(20)(j) Net Lease; Taxes is replaced as follows:
“j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor,
and Lessee agrees to pay any applicable sales, use, excise, personal equipment, stamp,
documentary and ad valorem taxes, license and registration fees, assessment, fines,
penalties and similar charges imposed on the ownership, possession or use of the Leased
Equipment during the term of the lease. Lessee shall pay all applicable taxes (except
Lessor’s federal or state net income taxes) which may be imposed on Lessor or Lessee
with respect to the lease payments hereunder or the ownership of the Leased Equipment.
30
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
7
Lessee shall pay as additional rent, any applicable taxes documented as paid or advanced
by Lessor on behalf of Lessee. Lessee shall file personal equipment tax returns with
respect to the Leased Equipment.”
cc) Section (A)(20)(k) Indemnity is replaced as follows:
“k. Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible
for, and at its own expense, defend itself against any and all liability, damage or loss,
arising out of the ownership, selection, possession, leasing, operation, control, use,
condition, maintenance, delivery and return of the Leased Equipment. The obligations
herein provided shall continue in full force and effect notwithstanding the termination of
the lease.”
dd) Section (A)(20)(p) Remedies is replaced as follows:
“p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time
(i) declare immediately due and payable and recover from Lessee, as liquidated damages
for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid
rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided,
however, that if an Event of Default shall occur as described in Section (A)(20)(o)(iv)
through (vi) above, Lessor without any notice or action shall be deemed to have made
such a declaration; (ii) automatically charge the DDA for all money amounts owed; (iii)
to the extent permitted by applicable Law, without demand or legal process, enter into the
premises where the Leased Equipment may be found and take possession of and remove
the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or
otherwise dispose of any such Leased Equipment at a private or public sale; or (v)
exercise any other remedies available under applicable Law. In the event Lessor takes
possession of the Leased Equipment, Lessor shall give Lessee credit for any sums
received by Lessor from the sale or rental of the Leased Equipment after deduction of the
expenses of sale or rental and Lessee shall remain liable to Lessor for any deficiency.
Notwithstanding the foregoing, to the extent any software included with the Leased
Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or
the licensor of such software shall have no duty to remarket or otherwise mitigate any
damages relating to such software.
Lessee shall also be responsible for all expenses incurred by Lessor in connection with
the enforcement of any of Lessor’s remedies including all expenses of repossessing,
storing, shipping, repairing and selling the Leased Equipment. Lessor and Lessee
acknowledge the difficulty in establishing a value for the unexpired lease term and,
owing to such difficulty, agree that the provisions of this Section represent an agreed
measure of damages and are not to be deemed a forfeiture or penalty. All remedies of
Lessor hereunder are cumulative, are in addition to any other remedies provided for by
Law, and may, to the extent permitted by Law, be exercised concurrently or separately.
The exercise of any one remedy shall not be deemed to be an election of such remedy or
to preclude the exercise of any other remedy. No failure on the part of the Lessor to
exercise and no delay in exercising any right to remedy shall operate as a waiver thereof
or modify the terms of the lease.”
ee) Section (A)(20)(s) Miscellaneous is replaced as follows:
31
Showare Center Box Office Amendment 8030203668 (v. 6.23.17) FINAL
8
“s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be
paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition
to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each
late payment. Each month the past due payment remains unpaid, an additional late fee in
the amount defined will be assessed. Payments are applied to late fees and service
charges first and then to the lease obligation. Amounts shall be payable in addition to all
amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein
provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an
applicable fee for delivery of such services. Lessee shall inform Lessor of any change in
Lessee’s name, address, billing address, telephone numbers, location of the Leased
Equipment, or DDA. In the event Lessee fails to comply with any provision of the lease,
Lessor shall have the right, but not be obligated, to affect such compliance on behalf of
Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies
expended by, and all expenses of Lessor in effecting such compliance, shall be deemed to
be additional rental, and shall be paid by Lessee at the time of the next monthly payment
of rent. All notices under the lease shall be sufficient if given personally or mailed
postage prepaid to the party intended at the respective address set forth herein, or at such
other address as said party may provide in writing from time to time. The lease inures to
the benefit of and is binding upon the personal representatives, successors and assigns of
the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease
to be a valid and subsisting legal instrument, and agree that no provision of the lease that
may be deemed unenforceable shall in any way invalidate any other provision or
provisions of the lease, all of which shall remain in full force and effect. The lease shall
be binding when accepted in writing by Lessor and shall be governed by the laws of the
state where the Leased Equipment is located.”
ff) Section (A)(20)(t) Important Information about Credit Reporting is deleted.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment.
CITY OF KENT d/b/a ShoWare Center
Box Office (MID 8030203668)
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
ELAVON, INC.
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
(the “Amendment Effective Date”)
32
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
1
AMENDMENT TO THE COMPANY APPLICATION
This Amendment to the Company Application (the “Amendment”) is entered into and effective
as of the Amendment Effective Date (defined below) by and between Elavon, Inc. (“Elavon”)
and City of Kent d/b/a ShoWare Center Concessions (Merchant Identification Number
8030203619), (“Company”). This Amendment modifies and amends certain terms of the
current Company Application dated June 24, 2016 (the “Application”) as further set forth below
and, except as expressly agreed by the parties in writing, any successor or subsequent version of
the Application then-in-effect as periodically updated by Elavon. The Company Application, the
TOS and the Operating Guide, as well as all attachments, schedules and exhibits to any of the
foregoing, are collectively referred to herein as the (“Agreement”). Capitalized terms used and
not otherwise defined in this Amendment shall have the meanings ascribed to them elsewhere in
the Agreement.
NOW THEREFORE, in consideration of the mutual benefits accruing to the Parties hereto and
other good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged, the Parties agree as follows:
ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL
COMPANIES
Section A – General Provisions
1) The following provisions hereby replace the like-numbered provisions of the Terms of
Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies
operating under the Agreement.
a) Section (A)(4)(d) Chargebacks is revised to read as follows:
“d. Chargebacks. Company is responsible to Elavon and Member for all Transactions
returned to Elavon or Member for whatever reason, including all Chargebacks. Company
will pay Elavon and Member for all Chargebacks. Company agrees to accept for
Chargeback, and will be liable to Elavon and Member in the amount of any Transaction
for which the Customer or Issuer disputes the validity of the Transaction for any reason
under the Payment Network Regulations. Company authorizes Elavon and Member to
offset from funds due Company for Transaction activity or to debit the DDA or the
Reserve Account for the amount of all Chargebacks including, as applicable, any
currency fluctuations. Company will fully cooperate with Elavon and Member in
complying with the Payment Network Regulations regarding all Chargebacks.”
b) Section (A)(5)(d) Indemnity is deleted.
c) Section (A)(6)(a)(i) Security Agreement is deleted.
d) Section (A)(6)(a)(ii) Perfection is deleted.
e) Section (A)(8)(a) Accuracy of Information is revised to read as follows:
33
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
2
“a. Accuracy of Information. Company represents and warrants to Member and Elavon
that all information provided to Elavon in the Company Application, in the bid process if
applicable, or otherwise in the Agreement is correct and complete. Company must
promptly notify Elavon in writing of any material changes to such information, including,
without limitation, any additional location or new facility at which Company desires to
use the Processing Services provided under this Addendum, the form of entity, change in
control, material changes to the type of goods and services provided and/or payments
accepted, and how Transactions are completed (e.g., by telephone, mail, electronic
commerce, or in person at Company’s place of business). The notice must be received by
Elavon at least ten (10) business days prior to the change. Company will promptly
provide any additional information reasonably requested by Elavon. Elavon has the right
to rely upon written instructions submitted by Company to request changes to Company’s
business information. Company may request written confirmation of Elavon’s consent to
the changes to the Company’s business information. Company will be responsible for all
losses and expenses incurred by Elavon or Member arising out of Company’s failure to
provide proper notice or requested information for any such change, and will not make
any claims against Elavon or Member for any losses sustained by Company as a result of
such failure. Elavon may immediately terminate the Agreement upon a material change
to the information in the Company Application if such change is not approved by
Elavon.”
f) Section (A)(8)(b) Indemnification is deleted and replaced with the following two
sections:
“i. Company Responsibilities. As between Company, Elavon and Member, Company
will be responsible for, and at its own expense, defend itself against any suits, claims,
losses, demands or damages arising out of or in connection with (A) any dispute with a
Customer, Cardholder or any third party relating to any Transaction, (B) any action taken
by Elavon or Member with respect to the DDA or Reserve Account in accordance with
the Agreement, or (C) any breach by Company of any obligation under this Agreement.
Company will not make any claims against Elavon or Member for any liabilities, claims
losses, costs, expenses and demands of any kind or nature, arising out of or in connection
with any of the foregoing suits, claims, losses, demands or damages.”
“ii. Elavon Responsibilities. Elavon will be responsible for and will at its own expense
defend itself against any suits, claims, losses, demands or damages arising out of (A)
Elavon’s breach of the Agreement, or (B) Elavon’s negligence, gross negligence or
willful misconduct.”
g) Section (A)(9)(a) Organization is revised to read as follows:
“a. Organization. Company is validly existing and duly organized under the laws of the
jurisdiction in which it was formed with all necessary authority, qualifications, licenses
and registrations necessary to conduct its business, in all jurisdictions where Company
conducts business.”
h) Section (A)(10)(a) Audit is revised to read as follows:
34
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
3
“a. Audit. In the event that Elavon or Member reasonably suspects that they are subject
to a financial or reputational risk due to Company’s actions or omissions, Company
authorizes Elavon and Member to perform an audit or inspection of Company’s
operations to confirm compliance with the Agreement upon reasonable advance notice
and at Elavon’s or Member’s expense. Company agrees to cooperate, in good faith, with
any such audit conducted by Elavon or Member. Further, Company acknowledges and
agrees that the Payment Networks have the right to audit Company’s business to confirm
compliance with the Payment Network Regulations.”
i) Section (A)(10)(b)(i) Authorizations is revised to read as follows:
“i. Authorizations. Company authorizes Elavon and Member to make, from time to time,
any business credit or other inquiries they consider necessary to review the Company
Application or continue to provide services under the Agreement. Company also
authorizes any person or credit reporting agency to compile information to answer those
credit inquiries and to furnish that information to Elavon.”
j) Section (A)(10)(b)(ii) Financial Information is revised to read as follows:
“ii. Financial Information. Upon the request of either Elavon or Member, Company
will provide Elavon and Member audited financial statements prepared by an
independent certified public accountant selected by Company, or if Company is audited
by a governmental authority, then Company will provide financial statements from such
governmental authority. Within one hundred twenty (120) days after the end of each
fiscal year (or in the case of a government entity, when available), Company will furnish
Elavon and Member, as requested, a financial statement of profit and loss for the fiscal
year and a balance sheet as of the end of the fiscal year, each audited as provided above.
Company shall also provide Elavon and Member such interim financial statements and
other information as Elavon or Member may request from time to time.”
k) Section (A)(13) Personal Guaranty is deleted.
l) Section (A)(14)(a) Products or Services is revised to read as follows:
“a. Products or Services. Company may desire to use a Value Added Servicer to assist
Company with its Transactions. Company shall not utilize any such third parties unless
Company has disclosed such use to Elavon previously in writing, and unless such Value
Added Servicer is fully compliant with all Laws and Payment Network Regulations. Any
Value Added Servicer used by Company must be registered with the Payment Networks
prior to the performance of any contracted services on behalf of Company. Further, as
between the parties to this Agreement, Company will be bound by the acts and omissions
of its Value Added Servicer and Company will be responsible for compliance by such
Value Added Servicer with all Laws and Payment Network Regulations. Company will
be responsible for any loss, cost, or expense incurred in connection with or by reason of
Company’s use of any third parties, including Value Added Servicers. Neither Elavon nor
Member is responsible for any Value Added Servicer or for the products or services
offered by such Value Added Servicer, nor are they responsible for any Transaction until
Elavon receives data for the Transaction in the format required by Elavon. A Value
35
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
4
Added Servicer’s access to or ability to integrate with the products, services and systems
of Elavon may terminate at any time and Elavon shall have no obligation to advise
Company of such termination.”
m) Section (A)(15)(b)(i) Termination, Company, the following is added as Section
(A)(15)(b)(i)(cc):
“cc. The Agreement may be terminated by Company in the event that sufficient
legislative appropriation is not available, provided that Company gives Elavon and
Member sixty (60) days’ notice prior to termination.”
n) Section (A)(15)(c)(iii) Return to Elavon is revised to read as follows:
“iii. Return to Elavon. All Confidential Information, promotional materials, advertising
displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms
supplied to Company and not purchased by Company or consumed in use will remain the
property of Elavon and must be returned to Elavon or destroyed within thirty (30) days
after termination of the Agreement.”
o) Section (A)(16)(d) MATCHTM and Consortium Company Negative File is revised to
read as follows:
“d. MATCHTM and Consortium Company Negative File. Company acknowledges
that Member and/or Elavon is required to report Company’s business name and the name
of Company’s principals to the MATCHTM listing maintained by MasterCard and
accessed and updated by Visa and American Express, to the Consortium Company
Negative File maintained by Discover, or to any other negative or terminated merchant
file of any other Payment Network, if applicable, pursuant to the requirements of the
Payment Network Regulations. Company specifically consents to the fulfillment of the
obligations related to the listing by Elavon and Member, the listing itself, and Company
waives all claims and liabilities Company hay have as a result of such reporting.”
p) Section (A)(16)(e) Security Program Compliance is revised to read as follows:
“e. Security Program Compliance. Company must comply with the requirements of the
Payment Card Industry (PCI) Data Security Standard (PCI DSS) including the
Cardholder Information Security Program (CISP) of Visa, the Site Data Protection
Program (SDP) of MasterCard, the Data Security DISC Program and the PCI DSS
regulations of Discover Network, and the security programs of any other Payment
Network or Issuer regarding which Company accepts a Payment Device, as applicable,
and any modifications to, or replacements of such programs that may occur from time to
time (collectively, “Security Programs”). Company shall also ensure that all Value Added
Servicers from whom Company procures services or third party POS Devices comply
with the requirements of the Security Programs. Upon request, Elavon will provide
Company with the respective website links to obtain the current requirements of the Visa,
MasterCard, and Discover Network Security Programs. Company is responsible for
Company’s own actions or inactions, those of Company’s officers, directors,
shareholders, employees and agents, including any Value Added Servicer (collectively,
“Company’s Agents”). Company shall be responsible for any liability, loss, cost, or
36
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
5
expense resulting from the violation of any of the Security Program requirements by
Company or any of Company’s Agents.”
q) Section (A)(17)(a) Use of Trademarks is revised to read as follows:
“a. Use of Trademarks. Company may use and display the promotional materials
provided by Elavon on Company’s premises as may be required or requested by the
Payment Networks. Company’s use of Visa, MasterCard and Discover Network marks,
as well as marks of other Payment Networks, will fully comply with the Payment
Network Regulations. Company’s right to use all such marks will terminated upon
termination of the Agreement or upon notice by a Payment Network to discontinue such
use. Company’s use of promotional materials provided by Visa, MasterCard, Discover
Network, and/or other Payment Networks will not indicate, directly or indirectly, that
Visa, MasterCard, Discover Network, or such other Payment Networks endorse any
goods or services other than their own and Company may not refer to Visa, MasterCard,
Discover Network or any other Payment Networks in stating eligibility for Company’s
products or services.”
r) Section (A)(17)(c) Passwords is revised to read as follows:
“c. Passwords. If Company receives a password from Elavon to access any of Elavon’s
databases or services Company will: (i) keep the password confidential; (ii) not allow any
other entity or person to use the password or gain access to Elavon’s databases or
services; (iii) be responsible for all action taken by any user of the password that obtained
access to the password from Company; and (iv) promptly notify Elavon if Company
believes Elavon’s databases or services or Company’s information has been
compromised by use of the password. If Company receives passwords from a third party
for products or services related to Transaction processing, Company must protect such
passwords in the manner required by such third party and be responsible any losses,
costs, or expenses that arise from Company’s use or misuse of such third party
passwords.”
s) Section (A)(18)(b) Governing Law in the United States is deleted.
t) Section (A)(18)(c) Jurisdiction and Venue; Governing Law in Canada is deleted.
u) Section (A)(18)(d) Exclusivity is deleted.
v) Section (A)(18)(f) Assignability is revised as follows:
“f. Assignability. The Agreement may not be assigned by Company, directly or by
operation of law, without the prior written consent of Elavon. If Company, nevertheless,
assigns the Agreement without Elavon’s consent, the Agreement will be binding on the
assignee as well as Company. Elavon will not transfer or assign the Agreement without
the prior written consent of Company, provided that such consent shall not be required
for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or
delegation to any Person into or with which Elavon shall merge or consolidate, or who
may acquire substantially all of Elavon’s stock or assets.”
37
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
6
w) Section (A)(18)(g) Arbitration is deleted.
x) Section (A)(18)(k) Attorney’s Fees is deleted.
y) Section (A)(18)(p) Amendments is revised as follows:
“p. Amendments. Except as otherwise provided in the Agreement, amendments to the
Agreement shall be in writing and signed by the parties. Notwithstanding the foregoing,
Elavon and Member may amend or modify the Agreement, to the extent such changes are
required by or attributable to changes in the Payment Network Regulations or other
Laws, upon written notice to Company. Elavon or Member will inform Company of such
a change in a periodic statement or other written notice, and such change will become
effective not less than thirty (30) days following the issuance of the notice.
Notwithstanding the previous sentence, changes to fees authorized by the Agreement will
be effective upon notice to Company, unless a later effective date is provided.”
z) Section (A)(19) Provisions Applicable to Company’s Acceptance of Transactions in
Canada is deleted but only if Company is not accepting transactions in Canada.
aa) Sections (A)(20)(h) Title; Quiet Enjoyment is replaced as follows:
“h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased
Equipment. All documents of title and evidence of delivery shall be delivered to Lessor.
Lessee hereby authorizes Lessor, at Lessee’s expense, to cause the lease or any statement
or other instrument in respect to the lease showing the interest of Lessor in the Leased
Equipment including Uniform Commercial Code Financing Statements, to be filed or
recorded and/or refiled and rerecorded, and grants Lessor the right to execute Lessee’s
name thereto. Lessee agrees to execute and deliver any statement or instrument requested
by Lessor for such purpose, and agrees to pay or reimburse Lessor for any filing,
recording or stamp fees or taxes arising from the filing or recording of any such
instrument or statement. Lessee shall at its expense, protect and defend Lessor’s title
against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever and, shall give Lessor
immediate notice thereof and shall be responsible for any loss caused thereby. Lessee
agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver
or other similar documents as Lessor may reasonably request. Provided Lessee is not in
default hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the
terms hereof.”
bb) Section (A)(20)(j) Net Lease; Taxes is replaced as follows:
“j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor,
and Lessee agrees to pay any applicable sales, use, excise, personal equipment, stamp,
documentary and ad valorem taxes, license and registration fees, assessment, fines,
penalties and similar charges imposed on the ownership, possession or use of the Leased
Equipment during the term of the lease. Lessee shall pay all applicable taxes (except
Lessor’s federal or state net income taxes) which may be imposed on Lessor or Lessee
with respect to the lease payments hereunder or the ownership of the Leased Equipment.
38
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
7
Lessee shall pay as additional rent, any applicable taxes documented as paid or advanced
by Lessor on behalf of Lessee. Lessee shall file personal equipment tax returns with
respect to the Leased Equipment.”
cc) Section (A)(20)(k) Indemnity is replaced as follows:
“k. Responsibility of Lessor. As between Lessor and Lessee, Lessee will be responsible
for, and at its own expense, defend itself against any and all liability, damage or loss,
arising out of the ownership, selection, possession, leasing, operation, control, use,
condition, maintenance, delivery and return of the Leased Equipment. The obligations
herein provided shall continue in full force and effect notwithstanding the termination of
the lease.”
dd) Section (A)(20)(p) Remedies is replaced as follows:
“p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time
(i) declare immediately due and payable and recover from Lessee, as liquidated damages
for the loss of a bargain and not as a penalty, an amount equal to all accrued and unpaid
rental payments and late charges, taxes, and other fees, plus the Loss Amount; provided,
however, that if an Event of Default shall occur as described in Section (A)(20)(o)(iv)
through (vi) above, Lessor without any notice or action shall be deemed to have made
such a declaration; (ii) automatically charge the DDA for all money amounts owed; (iii)
to the extent permitted by applicable Law, without demand or legal process, enter into the
premises where the Leased Equipment may be found and take possession of and remove
the Leased Equipment, without liability for such retaking; (iv) Lessor may hold, sell or
otherwise dispose of any such Leased Equipment at a private or public sale; or (v)
exercise any other remedies available under applicable Law. In the event Lessor takes
possession of the Leased Equipment, Lessor shall give Lessee credit for any sums
received by Lessor from the sale or rental of the Leased Equipment after deduction of the
expenses of sale or rental and Lessee shall remain liable to Lessor for any deficiency.
Notwithstanding the foregoing, to the extent any software included with the Leased
Equipment is nontransferable or its transfer restricted, Lessee agrees that Lessor and/or
the licensor of such software shall have no duty to remarket or otherwise mitigate any
damages relating to such software.
Lessee shall also be responsible for all expenses incurred by Lessor in connection with
the enforcement of any of Lessor’s remedies including all expenses of repossessing,
storing, shipping, repairing and selling the Leased Equipment. Lessor and Lessee
acknowledge the difficulty in establishing a value for the unexpired lease term and,
owing to such difficulty, agree that the provisions of this Section represent an agreed
measure of damages and are not to be deemed a forfeiture or penalty. All remedies of
Lessor hereunder are cumulative, are in addition to any other remedies provided for by
Law, and may, to the extent permitted by Law, be exercised concurrently or separately.
The exercise of any one remedy shall not be deemed to be an election of such remedy or
to preclude the exercise of any other remedy. No failure on the part of the Lessor to
exercise and no delay in exercising any right to remedy shall operate as a waiver thereof
or modify the terms of the lease.”
ee) Section (A)(20)(s) Miscellaneous is replaced as follows:
39
Showare Concessions Amendment 8030203619 (v. 6.23.17) FINAL
8
“s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be
paid to Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition
to the payment, a late charge of 15% of the amount past due (but at least $7.50) for each
late payment. Each month the past due payment remains unpaid, an additional late fee in
the amount defined will be assessed. Payments are applied to late fees and service
charges first and then to the lease obligation. Amounts shall be payable in addition to all
amounts payable by Lessee to Lessor as a result of exercise of any of the remedies herein
provided. If Lessee requests any services not provided for herein, Lessee agrees to pay an
applicable fee for delivery of such services. Lessee shall inform Lessor of any change in
Lessee’s name, address, billing address, telephone numbers, location of the Leased
Equipment, or DDA. In the event Lessee fails to comply with any provision of the lease,
Lessor shall have the right, but not be obligated, to affect such compliance on behalf of
Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies
expended by, and all expenses of Lessor in effecting such compliance, shall be deemed to
be additional rental, and shall be paid by Lessee at the time of the next monthly payment
of rent. All notices under the lease shall be sufficient if given personally or mailed
postage prepaid to the party intended at the respective address set forth herein, or at such
other address as said party may provide in writing from time to time. The lease inures to
the benefit of and is binding upon the personal representatives, successors and assigns of
the parties hereto. Time is of the essence of the lease. Lessor and Lessee intend the lease
to be a valid and subsisting legal instrument, and agree that no provision of the lease that
may be deemed unenforceable shall in any way invalidate any other provision or
provisions of the lease, all of which shall remain in full force and effect. The lease shall
be binding when accepted in writing by Lessor and shall be governed by the laws of the
state where the Leased Equipment is located.”
ff) Section (A)(20)(t) Important Information about Credit Reporting is deleted.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment.
CITY OF KENT d/b/a ShoWare
Center Concessions (MID 8030203619)
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
ELAVON, INC.
Signature:
_______________________________
Printed Name:
____________________________
Title:
___________________________________
Date:
___________________________________
(the “Amendment Effective Date”)
40
S¡re - T Senvrces/Senvlce Weesfie ENRot-u¡e¡¡r FoRn¡l / AooeNoun¡l
D¡re:06/08/2017 E NewMencH¡¡¡r
E Ex¡srrruo Mencnrrur E ADD LocATtoN EXrsrNG strE tD El S¡¡e-TSenvrces
E SenvrceWessrre Mps pARENT ENr,r". Siriusware= 40753
MeRcn¡Nr lHroRmlno¡¡
LEGAucoRPoRAre N¡r¡E: CitV of Kent PHoNE#: 253-856-6777
ADDRESs 1: 625 West James Street FAX #:
ADDRESS 2:PRr¡rcrp¡r- N¡ue: Arletta VOter / Director Of FinanCeþ CoNrncr
Crrv: Kent PRTNcTPAL PHoNE: 253-856-6704
Sure: WA ztp: 98032 PRTNcTpALEMAtL: aVoter@shoWarecenter.com
CoUNTRY:PREFERRED CoNrAcr Mernoo Email
FÊDERAL TAX lD: I 1 -6001 254 OwNERSHtpTypE: Government State/Local/Fed
INDUSTRY: Restaurant QSR SuPPoRr Svc PRovroEn: Elavon SUPPoRT Svc PHoNÊ #:
DBA/MencsnNT LocATtoN (rr orrreRerur rHAN MERcHANT INFoRMATtoN)
DBA NAME: Showare Center Concessions PRrNcrpAL NAME: Arletta Voter / DirectOr Of Finance[l Colrncr
ADDREss r: 625 West James Street PHoNE#: 253-856-6704
ADDRÊSS 2:FAX#:
Crrv: Kent Sr¡re: WA ztP: 98032 Evnrr-: âVoter@showarecenter.com
corur¡cr (turnoruzED By PRtNctpAL ABOVE TO MAKE ACCOUNT CHANGES)
FrRsr NAME: Brad L¡sr Narr¡e: Olson Trrle: Director of Food and Beverage
Pxone:253-856-671 6 FAX #:EMAIL: baolson@showarecenter.com E
Fees (Snre-T SeRvlces nruo Senvrce Weesrre)Fees (SenvcE WEBstrE oNLy)
Fees - pno vtn ACH DEBtr oN oR AFTER THE EFFEcIvE DATE
FEE FREQUENcY PR¡CE FEE FREQUENcY PRIcE
IMpLEMENTAT|oN FEE (pER LocATtoN)ONE TII/IE $ 24s5 SErUP FEE (pER LocATtoN)ONE T|ME $
Fees - pero vß ACH DEBtr
FEE FREoUENcY PRICE FEE FREQUENcY PRIcE
MoNTHLy HosÏNG FEE (pER LocATtoN)MoNTHLY $10 MoNTHLy HosÏNG FEE (pER LocATtoN)MONTHLY $
MoNTHLy SuppoRT FEE (pER LocATtoN)MoNTHLY $o MoNTHLy SuppoRT FEE (pER LocAÏoN)MONTHLY $
SIMPLIFY SoFTWARE SUPPoRT SVCS FEE
lpFR TFRMtNAt oR RLjNDT F Às rDFNrrFrFñ FFr ô\^/\ANNUAL $ 12.00
Fees - Pruo vlr ACH DEBtr tN ARREARs
FEE FREQUENcY PRrcE FEE FReeuercy PRIcE
GATEWAY/CoN NEcTIVITY FEE PER TRANSAcTIoN $ 0.035 CoNNEcÏvrrY FEE PER TRANSACTIoN $
SAFE-T FEE PER TRANSAcTIoN $ 0.015
AurH PRrcrNc Pnocnnv: 35011
RUSH SHIPMÊNT (NEXT DAY $
HenownRe/SoFrwARE BUNDLES/PURcHAsED Eoureuerur (SAFE-T SERVtcEs ONLv):
STANDARD sHlPPrNc, THE PRtcE sET FoRTH BÊLow tNcLUDEs rHE FÊÉs FoR THE trEMs INcLUDED tN THE BUNDLÊ, ExcLUDtNo aNy suppoRT FEEs wH¡cH ARE aDD¡roNAL AND sET F9RIH aaovE.
LOADINO, KEY INJECIION AND
QrY BUNDLE#DEscRrPTroN PURcHASE leen eur'role¡
47 89 Siriusware EMV lSC250 USB POS CommBox $ at¿
2 97 Siriusware EMV lPP320 USB POS CommBox $ 694
$
OrgeR Hnnownne/PURcHASED EoutemeHr (SAFE-T SERVTCES ONLY) rNcLUoEs sTANDARD sHrpprNc
Qrv DEScRtPTToN PURcHASE (nrn rrera¡
$
$
TorAL PER StrE $
Safe-T/Service Website Enrollment (ACQ) I I 16
41
Bltuno lrroRm¡loH
DDA#:100554840ABA RourNG #: 3251 70835BANK NAIVE:e Bank
T¡pp lD: 33 - US/USDBILLING METHOD: ACH
AUTHORIZATION FOR AUTOMATIC WITHDRAWAL OF MONTHLY PAYMENTS
MERcHANT wtLL ESTÂBLIsH AND MAtNTAIN wtrH AN ACH pARTtctpATtNc FtNANOIAL lNsTlrurloN oNE oR MORE DEI\,AND DEPoslr AccoUNTs (DDAS) To FAOILITATE PAYMENT oF FEES UNDER IHE
AGREEMENT. MERCHANT WLL MAINTAIN SUFFICIENT FUNDS IN THE DDA TO ACCOMMODATE ALL FEES DUE UNDER fHE AGREEMENT' MERCHANT IRREVOCABLY AUTHORIZES ELAVON TO INITIATE
ACH DEBIT ENTRIES TO THE DDA FOR ANY FEÉS DUE UNDER THE AGREEMENT IN ORDER TO COLLECT PAYIVIENTS FROM MERCHANT DUE UNDER THE AGREEMENT' THE FOREGOING
AUTHoRtzATtoNs wtLL REMATN tN EFFEcT AFTER TERt\¡rNAftoN oF THE AGREEMENT uNTrL ALL oF THE MERcHANT's oBLlcATloNS To ELAVON HAVE BEEN PAID lN FULL.
Geno Tvpes
SETTLEMENTAUTHORIZATION
MIDPRocESSOR/TPPSAME AS AUTHMIDPRocESSOR/TPPCARD BRAND
E VISA,/MASTERCARD
EI DISCOVER (UNIoN PAY)
@ Drrurns lrurl
EI JCB
XELAVON803020361 9
I PIN DEBÌT lruseooxororv¡
trAMERICAN EXPRESS
¡GrFr CARD
trPRIVATE LABEL
CoNTAcr EMATL:coNrAcr PHoNE: 206-396-6207CoNrAcr NAME: Alex KotovicPRocESSoR Nn[re: fl¿yq¡
CoNTACT EI¡AIL:CoNTACT PHONE:CoNTAcr NAME:PRoCESSOR NAME:
VERSToN: 4.5POS/PMS APPLlcArtoN NAME: SalesVAR SERVtcE PRovIDER: gi¡i¡¡gyy¿¡6
VERSION:POS/PMS Appr-rcATtoN NAME:VAR SERVICE PROVIDER:
TECHNICAL CONTACT
PHoNE #: 253-856-671 6CoNrAcr NAME: Brad Olson E¡itAtL:
SERVICE WEBSITE USER SETUP (NEW USERS ONLY)
UsER TrME ZoNE: Pacif¡cUSER EMAIL:UsER NAME: Brad Olson .com
Co¡¡rRncr
Co¡rrRRcrTvPE: OrHER
MERcHANT ACKNOWLEDGMENT
DATE:Trrre: Director of FinancePRTNTED NAME: Arletta VoterSIGNATURE: X
EFFEcTvE DAIE: 610812017Pnrruteo N¡tr¡E: Alex KotovicSIGNATURE: X
Accepreo Bv INTERNAL Usr Orulv)
SALEs REP PHoNE: 206-396-6207SALES REP Nnrr¡e: Alex Kotovic
SALES REP EMAIL:.comsALEs REP NuMBen:22269
RM NUMBER:RM NAME:
IMPLEMENTATION
REouESTED Go LrvÉ DArE: 0810112017REouEsrED lNSrAtt Dxe 07 I 1 5 12017
INTERNAL Usr O¡llv
Safe-T/Service Website Enrollment (ACQ) 1116
42
ilaçM SAFE-T Services Addendum to TOS (v. 10.07.15)
Pursuant to this SAFE-T Services Addendum and the related
enrollment form (the "Enrollment Form"), Merchant elects
and agrees to accept the services indicated on the Enrollment
Form, as part ofthe Processing Services, as such services are
described in this SAFE-T Services Addendum and the exhibits
hereto. This SAFE-T Services Addendum is an addendum to
and supplements the Agreement (as defined on the Enrollment
Form), replaces and supersedes Section G-SAFE-T for SMB
Services of the Terms of Service ("TOS") of the Agreement,
and, except as expressly set forth herein, is subject to and
governed by the terms of the Agreement. Capitalized terms
used and not otherwise defined in this SAFE-T Services
Addendum shall have the meanings ascribed to them
elsewhere in the Agreement, including the TOS, the Merchant
Operating Guide ("MOG") and the Enrollment Form.
FOR THE PURPOSES OF THIS SAFE-T SERVICES
ADDENDUM, THE TERM "POS DEVICE(S)'' REFERS
ONLY TO PAYMENT TERMINALS AND DOES NOT
REFER TO ANY OTHER POINT-OF-SALE DEVICES OR
SOFTWARE.
TERMS AND CONDITIONS
1) DESCRIPTION OF SAFE-T SERVICES. Subject to
the terms and conditions of this SAFE-T Services
Addendum and the Agreement, Elavon shall provide
Merchant with the following services (the "SAFE-T
Services"):
(a) ENCRYPTION SERVICES, which shall consist of
decryption of Transaction Receipts properly
encrypted by Merchant using Elavon-approved
software, encryption keys and Hardware (as defined
below), all in accordance with the terms and
conditions of this SAFE-T Services Addendum and
the Agreement (such services, the "Encryption
Services"); and
(b) TOKENIZATION SERVICES, which shall consist
of the services described in Section C of the TOS.
2) MERCHANT RESPONSIBILITIES. Merchant shall
cause the appropriate hardware, including POS Devices
and any hardware provided by or on behalf of Elavon
from time to time, to be readily available for use at all
Merchant locations that are the recipients or users of the
SAFE-T Services (the "Hardware").
3) FEES. Merchant shall pay Elavon the SAFE-T Services
fees and all other fees set forth on the Enrollment Form.
4) LIABILITY; DISCLAIMER OF WARRANTIES.
MERCHANT EXPRESSLY ACKNOWLEDGES AND
AGREES THAT THE DISCLAIMERS OF
WARRANTIES AND THE LIMITATIONS OF
LIABILITY CONTAINED IN THE TOS SHALL
SAFE.T SERVICES ADDENDUM TO TOS
(for Process ing Servic es)
APPLY WITH RESPECT TO THE SAFE-T SERVICES,
THE HARDWARE AND ANY LICENSED PRODUCTS
(TNCLUDING ANY SOFTWARE), IF ANY,
PROVIDED UNDER THIS SAFE-T SERVICES
ADDENDUM AND THAT THE SAFE.T SERVICES,
HARDWARE AND LICENSED PRODUCTS
(INCLUDING ANY SOFTWARE), IF ANY,
PROVIDED UNDER THIS SAFE-T SERVICES
ADDENDUM ARE PROVIDED "AS IS".
NOTWITHSTANDING THE FOREGOING, THE
TERMS OF ANY EXPRESS LIMITATION OF
LIABILITY OR DISCLAIMER OF WARRANTIES
CONTAINED IN ANY SCHEDULE, EXHIBIT, OR
ADDENDUM HERETO SHALL CONTROL WITH
RESPECT TO THE SERVICES AND PRODUCTS
(INCLUDING HARDWARE AND SOFTWARE), IFANY, PROVIDED PURSUANT TO SUCH
SCHEDULE, EXHIBIT, OR ADDENDUM.
5) TERM. This SAFE-T Services Addendum shall be
efïective as of the Effective Date set forth on the
Enrollment Form and shall continue until the expiration or
termination of the Agreement.
6) TERRITORY; RECEIPT OF SAFE.T SERVICES IN
CANADA. Merchant is permitted to receive SAFE-T
Services only in the jurisdiction or jurisdictions in which
Merchant is permitted to receive Processing Services
pursuant to the Merchant Application (the "Territory").
References herein to "Elavon" shall be deemed to refer to(i) Elavon, Inc., in the event that the Merchant is
receiving SAFE-T Services in the United States, and (ii)
Elavon Canada Company, in the event that Merchant is
receiving SAFE-T Services in Canada.
7) OTHER TERMS. This SAFE-T Services Addendum
forms a part of the Agreement and, together with the
terms and conditions contained herein and exhibits
attached hereto, is the entire agreement of the parties with
respect to the subject matter hereof and supersedes all
prior written or oral agreements, representations and
understandings with respect thereto. Notwithstanding
anything therein to the contrary, no terms set forth in any
purchase order, proposal, or other such document
executed by the parties with respect to the subject matter
of this SAFE-T Services Addendum shall be enforceable
against aparly hereto. In the event ofa conflict between the
terms and conditions of this SAFE-T Services Addendum
and any other terms and conditions of the Agreement, the
terms and conditions of this SAFE-T Services Addendum
shall control with respect to the subject matter herein.
SAFE-T Services Addendum to TOS (for Processing Services)
43
SAFE-T Services Addendum to TOS (v. I 0.07. l5)
EXHIBIT A TO SAFE-T SERVICES ADDENDUM
Encrvption Services License Terms and Conditions
Merchant shall receive encryption keys and an encryption terminal application for encryption of card data (the "Application") from
Elavon. The specific nppliðätion to úe received by Merchant will be aì set forth on the Enrollment Form. This Exhibit A shall be a
part of the SAFE-T Services Addendum.
General Terms and Conditions
1. Sublicense. Subject to the terms and conditions of the Agreement and this SAFE-T Services Addendum (including, without
¡,nitutiotr, tttis BitriUit al, and the payment of all applicable fees, Elavon hereby grants to Merchant a limited, personal, non-
exclusive, r.no*Ui., tro*sublicensablð, and non-transferable sublicense for the term of this SAFE-T Services Addendum to use
the Application as installed on Merchant's POS Devices distributed by Elavon solely to encrypt Transaction Receipts processed
using such POS Devices.
2. Restrictions. Except as set forth above, Merchant shall have no right to copy, market, distribute (electronically or otherwise), sell,
"*tg",
pl"dge, leaie, deliver, license, sublicense, outsource, rent or otherwise transfer the Application to any third party or use the
Appticátion fo1. ,"ruir" bureau, time-sharing, or other third-party use or to provide hosting, or to market by interactive cable or
re,mote processing services to a third party. tvterchant shali not make or permit the making of any modifications, additions or
enhancements to the Application. Meichant shall not reverse engineer, decompile, disassemble, translate' modifr, alter or create
any derivative works båsed upon, or change, the Application, or any part thereof, or determine or attempt to determine any source
coâe, algorithms, methods oitechniques embodied in the Application, or part thereof; without the prior written consent of Elavon
and its licensor. Merchant agrees not to use the Applicatiòn except as expressly licensed hereunder. Merchant may not sell or
transfer any poS Devices oñ which any Applicati* or .n"ryption keys are installed to any party unless Merchant has first
provided Ejavon with prior written notióe aná (i) removed the Application and encryption keys ffom the PoS Devices and (ii)
ãestroyed the encryption keys in a manner compliant with then-current Payment Card Industry Data Security Standard (PCI-DSS)
requiråments. nlãvon and/or its designated agent may monitor and audit Merchant's use of the Application for purposes of
u"iirying compliance with the Agreement and this SAFE-T Services Addendum, including this Exhibit A'
3. New Releases. From time to time, Elavon may provide updates, modifications, or new versions of the Application (each, an
"@çþas9',),providedthatMerchantcômplieswiththetermSSetforthintheAgreementandthisSAFE.TServices
Add"rdun! i.rl"dltrg tttis Exhibit A. For Merchants utilizing an Application licensed from Voltage Security, Inc., Elavon shall
automatically provisún
"urh
*.h Application Release to the Merchant's POS Devices (an "Automatic Release")' For Merchants
utilizing an Âpplication licensed from Verifone, Inc., Elavon shall provide such Application Releases to Merchant for installation
by Mer:chant,ìn which case Merchant must ensure that Application Releases are installed and implemented within fourteen (14)
dþs of becoming available to Merchant (a "Manual Release"), provided, however, that Elavon reserves the right to implement
Automatic Releases for such Merchants upon notice to Merchant. Elavon shall not be responsible for any updates, upgrades or
changes to Merchant's computer systems that may be necessary in conjunction with delivery, installation or use of any new
Application Release.
4. Reservation of Rishts. Merchant acknowledges and accepts that, as between the parties: (i) all right, title and interest in and to the
@ellectualpropertyrightsassociatedwithandintheApplicationshal1atal1timesremainvestedinElavon
und itr supplier/licensors; and (ii) irrferinant shall acquire no rights, express or implied, in the Application, other than the limited
sublicensô granted herein. Merchant shall not remove from the Application, or alter, any trademarks, trade names, logos, patent
or copyrigñt notices, proprietary notices, titles, legends or other notices or markings contained therein, or add any notices or
markingslo the Application, without the express written consent of Elavon and its licensor. The confidentialify obligations of
Merchant under the-Agreement apply to the Application licensed hereunder and Merchant shall limit access to the Application to
only those employees and contractors of Merchant with a need to access the Application to perform its services.
5. Termination. The license rights granted herein to the Application shall cease in the event (i) Merchant sells or otherwise transfers
a pOS nevice containing tne npptication to any party (other than to a permitted assignee under the Agreement); (ii) Merchant is
no longer deemed an active "urìôr.. using the Application to encrypt Transaction Receipts processed by Elavon; or (iii) Elavon
is no lınger authorized by its licensor to cıntinue to use and/or sublicense the Application. Upon termination, all license rights
granted tã Merchant herein to the Application shall immediately cease and Merchant shall discontinue any and all use of the
Ápplication and delete all copies of the Application on the POS Devices or otherwise within the control of Merchant.
2
EXHIBITA
44
ELAí/J î sAFE-r services Addendum to ros (v.r0.07.15)
6. Export and Imnort Resulations. Merchant acknowledges that the Application contains cryptographic features and is subject to
United States and local country laws governing import, export, distribution and use. Merchant is responsible for compliance by
Merchant with United States and local country laws and regulations and shall not export or transmit the Application (i) in
violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders.
7. U.S. Government Restricted Rights. If the Application is accessed or used by any agency or other part of the U.S. Government,
the U.S. Government acknowledges that (i) the Application and accompanying materials constitute "commercial computer
software" and "commercial computer software documentation" under paragraphs 252.227.14 and252.227.7202 of the DoD
Supplement to the Federal Acquisition Regulations ("DFARS") or any successor regulations, and the Government is acquiring
only the usage rights specifically granted in the Agreement; (ii) the Application constitutes "restricted computer software" under
paragraph 52.227 l9 of the Federal Acquisition Regulations ("FAR") or any successor regulations and the government's usage
rights are defrned in the Agreement and the FAR.
8. NO WARRANTIES¡ DISCLAIMERS. THE APPLICATION IS PROVIDED ON AN ..AS IS', BASIS IN ITS PRESENT
STATE AND CONDITION. WITHOUT LIMITING ANY TERMS UNDER THE AGREEMENT OR THIS SAFE-T
SERVICES ADDENDUM, NEITHER ELAVON NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERV/ISE, AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE APPLICATION,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT,
IMPLIED CONDITION OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTY FROM COURSE OF PERFORMANCE, COURSE OF DEALING ORUSAGE OF TRADE.
9. tr'ees and Pavment. Merchant shall pay Elavon the fees set forth on the Enrollment Form for the sublicense to the Application
granted to Merchant hereunder (the "Encryption Terminal Aoplication License Fees") and for the services provided by Elavon
with respect to encryption key injection (the "Encryption Terminal Application Load and Ke)¡ Injection Fees"). The Encryption
Terminal Application License Fees and Encryption Terminal Application Load and Key Injection Fees will each be assessed per
POS Device and will be due and payable upon the Effective Date indicated on the Enrollment Form.
Snecial Terms Anplicable to Anplications Sublicensed from Verifone. Inc.
In the event that Merchant has received a sublicense to an Application provided by Verifone, Inc., the following additional terms and
conditions shall apply:
A. Territorv. Notwithstanding anything in this SAFE-T Services Addendum or elsewhere in the Agreement to the contrary,
Merchant may use the Application solely as installed on Merchant's POS Devices located in the United States.
B. Limitation of Liabilitv. NOTWITHSTANDING ANYTHING IN THE AGREEMENT, INCLUDING THIS SAFE-T
SERVICES ADDENDUM, TO THE CONTRARY, IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS,
OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
LOSS OF USE OR DATA, LOST PROFITS OR BUSINESS INTERRUPTION) BY OR ON BEHALF OF MERCHANT
OR ANY CLAIMS BY ANY THIRD PARTIES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,
WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
ARISING IN ANY WAY OUT OF THE PROVISION OR USE OF THE APPLICATION, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS, OR
AGENTS HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY MERCHANT FOR ANY CLAIMS ARISING IN
ANY WAY OUT OF THE PROVISION OR USE OF THE APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
Snecial Terms Apnlicable to Annlications Sublicensed from Voltase Securitv. Inc.
In the event that Merchant has received a sublicense to an Application provided by Voltage Security, Inc., the following additional
terms and conditions shall apply:
A. Territorv. Merchant may use the Application solely as installed on Merchant's POS Devices located in the Territory.
B. Limitation of Liabilitv. NOTWITHSTANDING ANYTHING IN THE AGREEMENT, INCLUDING THIS SAFE-T
SERVICES ADDENDUM, TO THE CONTRARY,IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS,
OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR
EXHIBIT A
3
45
EIÑM sAFE-r Services Addendum to ros (v.10.07.1s)
CONSEQUENTIAL DAMAGES (IN EACH CASE, INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OR DATA, LOST PROFITS OR BUSINESS INTERRUPTION)
BY OR ON BEHALF OF MERCHANT OR ANY CLAIMS BY ANY THIRD PARTIES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, IWHETHER IN CONTRACT, STRICT LIABILITY, OR TORT ONCLUDING
NEGLIGENCE OR OTHERWISE) AzuSING IN ANY WAY OUT OF THE PROVISION OR USE OF THE
APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ELAVON
OR ITS LICENSORS, SUPPLIERS, OR AGENTS HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY
MERCHANT FOR ANY CLAIMS ARISING IN ANY WAY OUT OF THE PROVISION OR USE OF THE
APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. Third partv Beneficiarv. Voltage Security, Inc. is a designated third party beneficiary under this Exhibit A with the right to
enforce all t.rñffiã-to the Àpplication under this E;hibit A directly against Merchant. Governing law for any claim
brought by the designated third pãrty beneficiary shall be ihe law of the jurisdiction within the United States in which the
claim is brought; prãvided, that if Merchant is a government entþ or institution, governing law for any su9!r claim shall be
that set forth in tírå Agreement, as modified by thJ Government Entities and Institutions Addendum thereto (if applicable)'
4
F],XHIBIT A
46
SAFE-T Services Addendum to TOS (v. I 0.07. I 5)
EXHIBIT B TO SAFE-T SERVICES ADDENDUM
Equipment Schedule
This Exhibit B shall be a part of the SAFE-T Services Addendum.
l. Equipment and Pricing.
(a) Purchased Equipment. Merchant has elected to purchase the equipment set forth on the Enrollment Form (the "PUtçh¿¡gd
Equiþment") from Elavon pursuant to this SAFE-T Services Addendum. The fees payable by Merchant for the Purchased
Equipment are set forth on the Emollment Form.
(b) Shippine. The fees payable by Merchant for shipment of the Purchased Equipment to the location or locations designated by
Merchant are set forth on the En¡ollment Form; provided, however, if the shipping fees are not set forth on the Enrollment
Form, then all actual costs and expenses of shipping shall be paid by Merchant. Provided that the Purchased Equipment is
shipped using Elavon's freight account, Elavon shall bear the risk of loss of such Purchased Equipment until the time of
delivery; if the Merchant directs Elavon to utilize any other shipping method, Merchant expressly acknowledges and agrees
that all risk of loss for the Purchased Equipment shall pass to Merchant when the Purchased Equipment is tendered by Elavon
or on Elavon's behalf to the carrier for shipment to Merchant.
2. Terminal Software and Encryption Kevs. The encryption keys and licensed software obtained by Merchant from Elavon
pursuant to this SAFE-T Services Addendum will be loaded onto Merchant's POS Devices specified on the Enrollment Form
prior to shipment to Merchant, and Merchant shall pay the applicable fees set forth on the Enrollment Form for any encryption
keys or licensed software that Merchant receives.
3. \ilarrantv Terms.
OEM V/arrant-v: Any standard warranties provided by the original equipment manufacturer ("OEM") of the Purchased
Equipment are, to the fullest extent permitted by the OEM, passed through to Merchant at no additional cost to Merchant; and the
OEM (and not Elavon) shall be responsible for honoring any such OEM wananty. With respect to any POS Device purchased
from Elavon, Elavon and/or its equipment vendor will facilitate the OEM warranty service as follows:
Prior to returning any POS Device under an OEM warranty, Merchant must first obtain a return merchandise authorization
number ("RMA Number") from Elavon. Merchant must then ship such POS Device to Elavon's equiprnent vendor at the address
provided by Elavon, with reference to the RMA Number. Elavon's equipment vendor will either handle the OEM warranty issue
itself or ship the POS Device to the OEM for further handling. Upon Elavon's equipment vendor either handling the warranty
issue itself or receiving a repaired or replacement POS Device from the OEM, Elavon's equiprnent vendor will ship the repaired
or replacement POS Device to Merchant.
Merchant will bear the risk of loss of any returned POS Device until the time of delivery to Elavon's equipment vendor with
proper reference to the RMA Number. For any repaired or replacement POS Device shipped to Merchant, the risk of loss will
transfer to Merchant at the time of delivery to Merchant. In all cases, Merchant shall be responsible for all shipping and handling
costs associated with such OEM warranty service, including reimbursing Elavon for any shipping and handling costs paid by
Elavon on Merchant's behalf.
If Merchant has selected additional warranty options for POS Devices purchased ÍÌom Elavon, as indicated on the Enrollment
Form, the following terms shall apply, as applicable, limited only to such POS Devices purchased from Elavon (and specifically
excluding any other peripheral equipment purchased from Elavon and all equipment purchased from a third party):
Premium Advanced Exchanse Program :
The Premium Advanced Exchange Program provides the following services during the applicable warranty period as specified on
the Enrollment Form, which shall commence on the date of shipment of the POS Device to Merchant:
i. In the event that a POS Device requires service, on Merchant's request, Elavon will ship a like-model, refurbished POS
Device to Merchant for delivery the next business day (provided Merchant's request is received prior to 6 p.m. Eastern
lime) at no additional cost to Merchant. The refurbished POS Device will be configured and tested prior to shipment to
Merchant.
ii. Merchant will be provided with a call tag to enable Elavon to retrieve or cause the retrieval of Merchant's POS Device
requiring service. Merchant must use the call tag promptly upon receipt. If Elavon does not receive the POS Device
EXHIBIT *
,
47
SAFE-T Services Addendum to TOS (v.10.07.15)
requiring service within thirty (30) days of the issuance of the calllag, Merchant may be charged the cost of a new
replacement POS Device.
iii. Eiavon will retrieve or cause the retrieval of the POS Device requiring service at no additional cost to Merchant.
iv. Elavon will bill Merchant, and Merchant will be responsible for paying Elavon, for the costs of repairing POS Devices
retrieved by Elavon unless such repairs are covered by the OEM warranty.
With regard to the premium Advanced Exchange Program: (a) Merchant must initiate the exchange process with Elavon' and (b)
Elavon litt b.* the risk of loss of the refurbished POS Device sent to Merchant and the POS Device requiring service while such
pOS Devices are in the possession of Elavon or its freight carrier, and Merchant shall bear the risk of loss at all other times.
Premium Repair Warrant-v Program:
The premium Repair Warranty Program provides the following services during the applicable warranty period as specifted on the
Enrollment Form, which shall commence on the date of shipment of the POS Device to Merchant:
i. All repair fees, service, and parts related to any repair of the POS Device, other than with respect to repairs attributable
to misuse or abuse of the POS Device or cosmetic damage not affecting the performance of the POS Device'
ii. Cleaning and testing of repaired POS Devices'
V/ith regard to the premium Repair Warranty Program: (a) Merchant must obtain an RMA Number from Elavon in order to
initiate the wananty process, and (b) Elavon will bear the risk of loss of the repaired POS Device while such POS Device is in the
possession of Elavon or its freight carrier, and Merchant shall bear the risk of loss at all other times.
For the avoidance of doubt, any and all warranties provided under this SAFE-T Services Addendum, including this Exhibit B, shall
not extend to any equipment, soflware or hardware purchased from any third party.
4. Miscellaneous Terms/Disclaimer. IN THE EVENT OF ANY DEFECT, MALFUNCTION, ERROR, OR DAMAGE TO ANY
@VIDEDHERELrNDER,ELAVoN,SSoLEoBLIGATIoNSHALLBETHEPRoVISIoN
OF WARRANTY SERVICE PURSUANT TO THE WARRANTY OPTION (IF ANY) SELECTED BY MERCHANT ON THE
ENROLLMENT FORM, AND MERCHANT'S SOLE REMEDIES WITH RESPECT TO ELAVON SHALL BE THE RECEIPT
OF WARRANTY SERVICE FROM ELAVON OR ITS DESIGNEE PURSUANT TO SUCH WARRANTY OPTION OR
LTNDER THE MANUFACTURER'S WARRANTY. ELAVON SHALL HAVE NO LIABILITY TO MERCHANT FOR
COSTS, LOSSES, OR DAMAGES OF ANY KIND OR NATURE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR
OTHERWISE, WITH RESPECT TO ANY SUCH DEFECT, MALFUNCTION, ERROR, OR DAMAGE.
6
F]XHIBIT B
48
EIaçM SAFE-T Services Addendum to TOS (v.10.07.15)
EXHIBIT C TO SAFE-T SERVICES ADDENDUM
Simplifv Software License
This Exhibit C shall be a part of the SAFE-T Services Addendum.
Section A - Terms and Conditions
l. Definitions. Capitalized terms used in this Exhibit C (the "Simpll& Ipqsg") and not otherwise defined herein shall have the
meanings ascribed to them in the glossary set forth in Section B of this Simpli$, License or, if not defined in such glossary, as
defined in the Agreement.
2. License Grant and Permitted Use
(a) Elavon hereby grants to Merchant a non-exclusive, non-sublicensable, non-assignable, limited license in the Tenitory to use
and allow Authorized Users to use the Simplify Software as installed on terminals owned or otherwise controlled by
Merchant and to install, use, and allow Authorized Users to use any subsequent Releases of such Simplify Software provided
to Merchant from time to time, solely for Merchant's internal business purposes to process data in accordance with the
Documentation. This Simpli$, License permits Merchant to use the Simplify Software only on the POS Devices purchased
by Merchant pursuant to this SAFE-T Services Addendum, as described on the Enrollment Form. Merchant is not permitted
to use the Simpliff Software to service any other POS Devices unless permitted by Elavon in writing. Merchant is not
authorized to make copies of the Simpliff Software.
(b) Elavon hereby grants to Merchant a non-exclusive, non-sublicensable, non-assignable, limited license to use and to allow
Authorized Users to use the Documentation solely in connection with access to and use of the Simplifi Software pursuant to
this Simplify License. Merchant shall have the right to make a reasonable number of copies of the Documentation, at no
additional charge, solely for Merchant's own internal business purposes in connection with access to and use of the Simpli$r
Software under this Simplifu License; provided, however, that all proprietary markings of Elavon must be affixed and
retained by Merchant on any such copies.
(c) Except as provided in this Simplif' License, Merchant shall not: (i) copy, re-sell, reproduce, transfer, rent, lease, pledge,
sublicense, distribute or republish in any form or by any means or allow another to use or access the Licensed Materials, or
any portion thereof; including, without limitation, to provide outsourcing, service bureau, hosting services or training to third
parties; (ii) alter, modiff or otherwise prepare derivative works of the Licensed Materials; (iii) reverse engineer, disassemble
or decompile the Simplify Software, or any part thereof; (iv) remove, change or obliterate the copyright, trade secret or other
proprietary protection legends or notices which appear on or in the Licensed Materials; or (v) combine any Licensed
Materials with any unauthorized third party software. Merchant will not access or use, and it will not permit any Authorized
Users to access or use, the Licensed Materials or proprietary materials disclosed to Merchant for the purpose of creating, in
whole or in part, a system that is functionally competitive with the Simplify Software. Merchant shall promptly notiff
Elavon of and shall otherwise cooperate with Elavon in preventing any unauthorized access to, or use or copying of, the
Licensed Materials by Authorized Users or any other third party.
(d) All rights not expressly granted to Merchant under this Simpli$ License are reserved by Elavon.
3. Deliverv and Installation.
(a) All installation of the Simpli$ Software, other than installation of Releases (as described below) must be conducted by or at
the direction of Elavon. All POS Devices purchased by Merchant under the Agreement will be purchased from Elavon via
the Enrollment Form or subsequent to the Effective Date indicated on the Enrollment Form, and the Simplify Software will
be installed on such POS Devices prior to shipment to Merchant.
(b) Delivery of the Simplify Software by Elavon shall be deemed to have occurred when a POS Device \4/ith the Simplifu
Software installed is tendered by Elavon or on Elavon's behalf to a carrier for shipment to the Merchant. Elavon will deliver
one (1) copy of the Documentation to Merchant in a format determined by Elavon.
4. Limited Warranties: Disclaimers.
(a) Elavon warrants as follows:
(Ð During the V/arranty Period, the Simpli$ Software will include the functionality described in and will perform
substantially in accordance with the Documentation in all material respects, provided that the Simplifu Software is used
in accordance with the terms of this Simplify License and the Documentation. In the event the Simpliff Software does
not perform as warranted during the Warranty Period and Elavon is unable to remedy such nonconformity within a
reasonable time after receiving written notice thereof, Elavon shall, as Merchant's sole and exclusive remedy, refund to
Merchant the fees paid hereunder for the Licensed Materials, upon the return of the Licensed Materials by Merchant.
(ii) Elavon shall use commercially reasonable measures to screen the Simpli$z Software to avoid introducing any computer
virus that is designed (A) to permit unauthorized access or use by third parties to the Simplifi Software, (B) to damage,
EXHIBIT'
,
49
5.
SAFE-T Services Addendum to TOS (v. 10.07.1 5)
erase or delay access to the Simplifu Software, or (C) to perform any other similar actions. Elavon shall not insert any
code or other device into any Simpli$ Software that would have the effect of disabling, damaging, erasing, delaying or
otherwise shutting down all or any portion of the Simplifu Software.
(iii) The Simplifu SJftware Support Sirvices (as defined below) will be performed in a professional and workmanlike
manner. Elavon shall have and maintain sufficient resources to perform the Simplify Software Support Services in
accordance with this Simpliff License'
(b) Limitations. Elavon's obligátions under Section 4(a) of this Simplif, License shall not apply: (i) to any modifications,
alterations or customizationi developed by or on behalf of Merchant; (ii) if the Licensed Materials are not used on the
equipment specified or in accordance with the Documentation; (iiÐ if the Licensed Materials have been installed,
implemented, customized, modiflred, enhanced or altered by any third party (except any third party utilized by Elavon to
prôvide services under this Simpliry License); (iv) if Merchant is not using the most recent Release of the Licensed
Mut.riulr; or (v) to any e¡¡or or àeféct caused by Merchant, an Authorized User or any third party (except any third paÚy
utilized by Elavon to provide services under this Simplifu License) or third party software.
Si m plifv Softwa re Su pport Services: Releases.
ngthetermofthisSimplifrLicense,Elavonsha1lprovideMerchantwiththe
fotlowing support services (the "simplit Software Support Services"):
(D nroùaing Merchant with solutions to any known material problem relating to each installation of the Simplifl Software
in a timely manner as such solutions become known to Elavon;
(ii) Using commercially reasonable efforts to supply timely corrections for problems reported to Elavon by Merchant that
Elavon can reproduce in a currently supported version of the Simpli! Software;
(iii) Furnishing a ieasonable level oftelephone support, as determined by Elavon, in the form ofcounsel and advice on use
and maintenance of the Simplify Software; and
(iv) Providing Merchant with new Releases of the Simplifu Software as provided herein.
(b) Simplit Soft-ware Support Services Fees. For so long as this Simplify License remains in effect, Merchant shall pay the fees
f"r th" Si.pltfy Sot*ur. Support Services set forth on the Enrollment Form (the "Simplit, Software Support Services
EeeL"). Mãrchant understands and agrees that Simplify Software Support Services Fees shall not include fees for
professional services, if any, associated with delivery and installation of any new Release of Simplify Software or
modification of the then-current Major Release of Simpliff Software then in use by Merchant, which shall be agreed in
writing by Merchant and Elavon.
(c) New Relðases. Merchant shall be entitled to receive all new Releases of the Simpliff Software, including Major Releases,
p.*i¿"¿ that Merchant complies with the terms set forth in this Simpliff License, including, without limitation, the payment
of att Simpti$ Software Support Services Fees in firll when due. Elavon shall provide new Releases of the Simpliff
Software to Merchant in a manner consistent with the provision of new Application Releases. Elavon shall not be responsible
for any updates, upgrades or changes to Merchant's corxputer systems that may be necessary in conjunction with delivery,
installation or use of any new Release of the Simpliff Software.
(d) Supported Releases. Ouring the term of this Simplifu License, Elavon will provide SimpliS Software Support Services to
tul*"¡unt only for (i) the ttìen-current Release of the Simplify Software, if Merchant licenses an Application from Voltage
Security, Inc., or, (ii) the then-current Release and, for no more than fourteen (14) days following the delivery of the then-
current Release, the immediately prior Release of the Simpli$ Software, if Merchant licenses an Application from Verifone,
Inc. (collectively, a "supported Release"); provided that Merchant complies with the terms and conditions of this Simplifr
License and the Documentation, including, without limitation, payment obligations.
(e) Unsupported Releases. If Merchant uses any Release other than a Supported Release (an "Unsupported Release"), Elavon
*itt ñàu" no obligation to provide Simplif, Software Support Services for such Unsupported Release; plgvidq!, that
Merchant shall not thereby bè relieved of its obtigation to pay the Simpli$ Software Support Services Fees. Elavon, in its
sole discretion, may elect to provide Simpliff Software Support Services for Unsupported Releases at an additional charge to
be mutually determined by tñe parties in writing, but Elavon shall have no obligation to do so. Whether or not Elavon elects
to provide Simpliff Software Support Services for an Unsupported Release, Elavon shall have no responsibility or liability
foittre compliance or non-compliance of any such Unsupported Release with industry standards, Laws or Payment Network
Regulations.
Responsibilities of Merchant.
("@antacknowledgestheSimpti$Softwaredoesnotverifraccuracyofinformationorformatofanydata
or information input by Merchant.
(b) Merchant Telecommunications. Merchant shall be responsible for ensuring that its telecommunications connectivity, and any
such connectivity provided by any third party on behalf of Merchant, is properly certified and maintained and complies with
applicable industry rules and regulations, including Payment Network Regulations.
(c) Mêrchant Systems and Equipment. Merchant shall be responsible for ensuring that the systems and equipment, including,
without limitation, any POS Devices and any systems or equipment of third-party vendors used by Merchant, remain certified
and compatible with the most recent Release of the Simpli$ Software. Elavon shall not be responsible for any updates,
EXHIBIT C
8
6.
50
.r-r ar1)
EIaVOn sAFE-r services Addendum to roS (v.10.07.15)
upgrades, or changes to Merchant's systems or equipment, including, without limitation, the POS Device or any third-party
systems or equipment, that may be necessary in conjunction with delivery, installation or use of the Simplify Software.
Failure of the Merchant's systems or equipment, including, without limitation, the POS Device, or any third-party systems, to
remain certified or to be compatible and function with a Supported Release of the Simpli$r Software as regulated and/or
required shall excuse Elavon from any and all liability under this Simplif License and in connection with any other services
that Elavon may be providing to Merchant for the failure of the Simpli$' Software to perform in accordance with the
Documentation. If Merchant has obtained Purchased Equipment from Elavon, Elavon shall ensure that each new Release of
the Simplify Software is compatible with the Purchased Equipment until the end-of-life date established by the terminal
manufacturer for such Purchased Equipment. In the event thal any Purchased Equipment reaches its end-of-life date and
Merchant has obtained replacement POS Devices that are compatible with the Simpli$, Software, Merchant and Elavon may
enter into an agreement providing for the installation of the Simpli$, Software on such replacement terminals. Merchant will
not be obligated to pay a new license fee in conjunction with such installation, although Merchant may be obligated to pay
fees for professional services in conjunction with such installation, as agreed by the parties.
(d) ELAVON DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS OR ADEQUACY OF ANY DATA OR
OTHER INFORMATION PROVIDED OR MADE AVAILABLE BY MERCHANT OR ITS AUTHORIZED USERS, AND
ELAVON WILL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY
IN THE DATA OR RESULTS FROM USING THE LICENSED MATERIALS, EXCEPT TO THE EXTENT DIRECTLY
CAUSED BY A FAILURE OF THE LICENSED MATEzuALS TO PERFORM IN ,Á.ccoR¡aNCE WITH THE
DOCUMENTATION.
(e) Cornpliance b)¡ Merchant's Authorized Users. Merchant is responsible for compliance by each of its Authorized Users with
the terms and conditions of this Simplifr License and is responsible and liable for all access and use by Authorized Users and
acts or omissions of Authorized Users under this Simplifi License.
7. Fees and Pavment. Merchant shall pay Elavon the Simplify Software Support Services Fees and such other fees for the Simpliff
Software (collectively, the "Simpli8¡ Software Fees") set forth on the Enrollment Form or otherwise agreed by the parties in
writing. All Simpli$ Software Fees are non-refundable, except as otherwise provided in this Simpli$ License or SAFE-T
Services Addendum.
8.Ownership and Reservation of Rishts. Elavon retains all right, title and interest, including, without limitation, all Intellectual
Property Rights, in and to the Licensed Materials, Elavon Confidential Information and all Customizations. No rights in the
Licensed Materials, Elavon Confidential Information or Customizations are granted to Merchant other than those limited license
rights expressly set forth in this Simplify License. In the event any right, title or interest in and to any Licensed Materials or to
any Customizations developed by Merchant or Elavon is deemed to vest in Merchant, Merchant hereby assigns and agrees to
assign to Elavon all worldwide right, title, and interest in and to such Licensed Materials and to any Customizations, including all
intellectual property rights therein.
9. DisclaimeT. THE SIMPLIFY SOFTV/ARE AND ALL LICENSED MATERIALS AND CUSTOMIZATIONS ARE
PROVIDED ON AN "AS IS" BASIS IN THEIR PRESENT STATE AND CONDITION. WITHOUT LIMITING ANY TERMS
UNDER THE AGREEMENT, NEITHER ELAVON NOR ITS SUPPLIERS MAKES ANY WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
DISCLAIMS ANY AND ALL WARRANTIES V/ITH RESPECT TO THE SIMPLIFY SOFTWARE, LICENSED
MATERIALS, AND CUSTOMIZATIONS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, NON.INFRINGEMENT, IMPLIED CONDITION OF SATISFACTORY QUALITY OR FITNESS
FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY FROM COURSE OF PERFORMANCE, COURSE OF
DEALING ORUSAGE OF TRADE.
10. Exnort Control Notice. Merchant acknowledges that the Licensed Materials are being delivered to Merchant in the United
States and are, therefore, subject to United States export control laws. Merchant shall not export, re-export, directly or indirectly,
the Licensed Materials from the United States without Elavon's prior written authorization and agrees to comply with applicable
United States and foreign export control laws, including, by way of example, the United States Commerce Department's Export
Adminishation Regulations, the International Traffic in Arms regulations and any regulations or licenses administered by the
Department of the Treasury's Off,rce of Foreign Assets Control.
Section B - Glossary
Authorized User means any individual that Merchant permits to access and use the Simplify Software for Merchant's ordinary
business purposes.
Customizations means any works of authorship, work product, and any invention, process, method, development, design,
schematic, or technical information, whether patentable or not, including, without limitation, documentation, software or
9
EXHIBIT C
51
SAFE-T Services Addendum to TOS (v.10.07.15)
enhancement, improvements, alterations, or derivatives of the Simpli$ Software or the Licensed Materials developed by Elavon,
either alone or jointly with others, in connection with the provision of Simplifr Software Support Services.
Documentation means the specifications and written services description for the Simpli$' Software that are delivered to
Merchant under this Simplify License, including user manuals, all as may be amended by Elavon from time to time'
Documentation shall not inðluãe marketing materials, proposals, demonstrations and other promotional information.
Licensed Materials means one installed copy of the executable code (i.e. object code) of the Simpliff Software per authorized
Merchant pOS Device and a copy of the Do¿;mentation reasonably necessary for a user to operate the Simplify Software and any
permitted copies of the foregoing.
Major Release means any additional or replacement code or Documentation provided by Elavon that adds major new capabilities
or dlnctionality to the Lióensed Materials, as designated by a change in the number to the left of the decimal point in the version
number (e.g., irom version 1.0 to 2.0). Major Release doðs not include new or additional modules of Licensed Materials, which
must be licensed separately from Elavon.
Minor Release means any additional or replacement code or Documentation provided by Elavon that does not add major new
capabilities or functionality and that is madé generally available by Elavon to its customers using the applicable Major Release of
thô Licensed Materials, as designated by a chãnge in ihe number to the right of the decimal point in the version number (e.g', from
version l l to version 1.2).
Release means Major Releases, Minor Releases and Revisions, collectively.
Revision means any product temporary fix, error corrections, work-around, or other maintenance correction made available by
Elavon to its customers, as designated ty a change in the number to the right of the second decimal point in the version number
(e.g., from 1.1.1 to 1.1.2).
Simplify Software means the installed version of the software application referred to and marketed as the Simpliff software,
including any Releases made available by Elavon to Merchant under this Simpliff License.
Simplify Software Fees means the applicable fees for the Licensed Materials, SimpliÛ Software, Simplify Software Support
Services, and any other services or products, as set forth on the Enrollment Form.
Simplify Software Support Services means the support services provided by Elavon to Merchant, as set forth in Section 5 of this
Simplifu License.
Supported Release has the meaning given to it in Section 5(d) of this Simplif, License'
Unsupported Release has the meaning given to it in Section 5(e) of this Simplifr License.
Warranty period means the period beginning on the Effective Date indicated on the Enrollment Form and ending on the earlier
of ninetyjgg) days from the Effective Date or the date of Merchant's first use in a production environment of a POS Device on
which the Simpliff Software is installed.
EXHIBIT C
10
52
EIaíM Service Website Addendum to TOS (v. 10.07.15)
Pursuant to this Service Website Addendum and the related
enrollment form (the "Enrollment Form"), Merchant elects to
utilize the Service Website (as defined below) for certain
Transaction management functionality. Access to the Service
Website shall be deemed to constitute a part of the Processing
Services. This Service Website Addendum is an addendum to
and supplements the Agreement (as defined on the Enrollment
Form) and, except as expressly set forth herein, is subject to
and governed by the terms of the Agreement. Capitalized
terms used and not otherwise defined in this Service V/ebsite
Addendum shall have the meanings ascribed to them
elsewhere in the Agreement, including the Terms of Service
("TOS,"), the Merchant Operating Guide ("MOG") and the
Enrollment Form.
PART I-DEFINITIONS
Administrator means the Merchant employee designated
by Merchant to establish user groups for access to the
Service Website by Authorized Users of Merchant and to
issue and manage user IDs and passwords of Authorized
Users.
Authorized Users means the Merchant's employees or
other authorized personnel expressly authorized by
Merchant or Elavon to access and use the Service
Website.
Service Website means the browser-based user interface
operated by Elavon and located at the URL designated by
Elavon (as such URL may be updated from time to time),
which provides Merchant with batch management,
settlement balancing, and Transaction research and
reporting functionality.
PART II_TERMS AND CONDITIONS
Merchant Access and Use of the Service Website.
Subject to the terms, conditions and limitations set forth
in the Agreement, Elavon grants Merchant a limited,
revocable, non-exclusive, non-assignable, non-
transferable right during the Initial Term and any Renewal
Term of the Agreement to access and use the Service
Website solely for Merchant's own internal business
purposes in accordance with the terms and conditions of
the Agreement, including this Service Website
Addendum. Merchant and its Authorized Users will not,
and will ensure that their employees do not: (i) transmit
any data that contains software viruses, time bombs,
worms, Trojan horses, spyware, disabling devices,
malicious code, or other harmfi.rl or deleterious computer
code, files or programs to the Service Website; (ii)
interfere with or disrupt the servers or networks providing
the Service Website, or violate the regulations, policies or
SERVICE WEBSITE ADDENDUM TO TOS
for Process ing Services)
procedures of any associated networks; (iii) remove,
change or obliterate the copyright, trade secret o¡ other
proprietary protection legends or notices that appear in
connection with access to and use of the Service Website;
or (iv) copy, re-sell, republish, download, frame or
transmit in any form or by any means the Service
Website, or arry part thereof, including, without
limitation, in order to act as a consultant, service bureau,
outsourcing or application service provider for any third
parties, or otherwise allow any third party to use or access
the Service Website. Merchant will not access or use, and
it will not permit any Authorized User to access or use, the
Service Website for the purpose of creating, in whole or in
part, a system or service that is functionally competitive
with the Service Website or the Processing Services.
Merchant shall promptly notifr Elavon of and shall
otherwise cooperate with Elavon in preventing any
unauthorized access to, or use or copying of, the Service
Website, or any part thereof, by Merchant, Authorized
Users or any third parly. Merchant is and shall remain liable
for all access and use by Merchant and its personnel
including, without limitation, Authorized Users, of the
Service Website.
2. Monitoring. Merchant acknowledges and agrees that
Elavon may be able to monitor access to and use of the
Service Website and to prohibit any access or use of data
or information within the Service Website that Elavon
reasonably believes is unauthorized, frãy violate
applicable law or thal may pose an unacceptable risk of
material harm to Elavon, other Elavon customers or
Elavon's systems; provided, however, that Merchant
further acknowledges and agrees that Elavon has no
obligation to detect or prevent, and will have no liability
for failing to detect or prevent, any unauthorized access to
or use ofthe Service V/ebsite using any password or user
ID assigned to or by Merchant.
3. Administration: Authorized Users. Merchant shall
designate an Administrator in writing. The Adminishator
shall create passwords and user IDs for Authorized Users,
and Merchant shall be responsible for the distribution and
security of such passwords and user IDs. Merchant is
responsible for ensuring the access granted to each
Authorized User is limited to only the access and
information necessary for the Authorized User to perform
his or her job functions on behalf of Merchant. Merchant
is responsible for compliance with this Service Website
Addendum by each of its Authorized Users and is solely
responsible for all acts or omissions of the Authorized
Users.
Service Website Addendum to TOS (for Processing Services)
53
EIaçîî
4. Use of Service Website bv Merchant's Affiliates.
Merchant's af{îliates listed in the Affrliated Entities
Addendum to the Agreement (if applicable) shall be
permitted to use the Service Vy'ebsite, provided that any
such affiliates comply with all restrictions, obligations, and
requirements imposed on Merchant by this Service Website
Addendum. Merchant will, at all times, remain fully
responsible for any use of the Service Website by any of
Merchant's affîliates, to the same extent that Merchant
remains responsible for its own use of the Service Website,
except to the extent that an afüliate has entered into a
separate agreement with Elavon pursuant to which such
afiîliate has agreed to be directly responsible to Elavon for
such affiliate's use of the Service V/ebsite. Without
Iimiting the foregoing, Merchant agrees that Elavon shall
be entitled to rely upon the accuracy and completeness of
all specifications, information, and data provided by a
Merchant affiliate or on behalf of a Merchant affiliate in
connection with such affiliate's use of the Service
V/ebsite to the same extent that Elavon is entitled to rely
on specifications, information, and data provided by or on
behalf of Merchant hereunder. Merchant's affiliates may
not enforce this Service Website Addendum against Elavon.
Merchant must promptly notiff Elavon in writing: (i) in
the event any affiliate listed in the Afhliated Entities
Addendum to the Agreement no longer qualifies as an
affiliate to which Merchant will provide access to the
Service Website, or (ii) in the event that any entity not
listed in the Affiliated Entities Addendum to the
Agreement becomes an affiliate to which Merchant will
provide access to the Service Website. Merchant agrees
that Elavon may share any relevant provision of this
Service Website Addendum with any affiliate listed in the
Affiliated Entities Addendum to the Agreement that
requests to enter into a separate agreement with Elavon
for use of the Service Website or with respect to which
Merchant requests Elavon enter into such a separate
agreement.
5. Transaction Data.
(a) Elavon shall not bear and expressly disclaims any and
all liabilþ related to Merchant's use of
telecommunications services and related networks of
Merchant or a third parly, including, without limitation
any elroneous transmission, comrption or loss of data,
or inability to access the Service Website as a result of
the failure of the telecommunications systems,
equipment, resources, or software of Merchant or any
third party. Without limiting the foregoing, Elavon
Service Website Addendum to TOS (v. t 0.07. l5)
shall not be responsible for the reconstruction of any
information or data lost in transmission to or from the
Service Website due to any malfunction of Merchant's
or Merchant's third-party service provider's systems'
Merchant acknowledges that Elavon is not responsible
for ensuring or verif,ing the accuracy of the content or
format of any Transaction data received by Elavon.
MERCHANT ACKNOWLEDGES AND AGREES
THAT THE SERVICE WEBSITE RELIES ON THE
DATA AND DIRECTIONS PROVIDED BY
MERCHANT AND ITS AUTHORIZED USERS.
ELAVON DOES NOT GUARANTEE TI{E
ACCURACY, COMPLETENESS OR ADEQUACY
OF ANY DATA OR OTHER INFORMATION
PROVIDED OR MADE AVAILABLE BY
MERCHANT OR ITS AUTHORIZED USERS, AND
ELAVON V/ILL NOT BE LIABLE FOR ANY
ERRO& OMISSION, DEFECT, DEFICIENCY, OR
NONCONFORMITY IN DATA OR RESULTS
OBTAINED THROUGH MERCHANT'S USE OF
TFIE SERVICE WEBSITE, EXCEPT TO TFIE
EXTENT CAUSED BY ELAVON'S BREACH OF
THIS SERVICE WEBSITE ADDENDUM.
(b) Elavon shall have the right to rely on instructions and
approvals submitted by Merchant regarding access to
and use of all Merchant's Transaction data. Merchant
and its Authorized Users may view and retain certain
Transaction data stored by Elavon in accordance with
the functionality of the Service Website and this
Service Website Addendum. In the event that
Merchant wishes to access or receive copies of
Transaction data that is not accessible or downloadable
via the Service Website, Merchant may request that
Elavon provide such Transâction data and Elavon will
work with Merchant to provide such Transaction data
on mutually agreed upon terms. Notwithstanding the
foregoing or anything herein to the contrary, in the
event that, following the expiration or the termination
of the Agreement, Merchant desires to access or receive
copies of Transaction data stored by Elavon, Merchant
shall be required to: (i) enter into a data access
agreement to be separately executed by the parties and
(ii) pay any fees imposed by Elavon in connection with
such access.
6. þ. Merchant shall pay the fees for access to and use of
the Service Website set forth on the Enrollment Form.
2
Service Website Addendum to TOS (for Processing Services)
54
-T Wegs¡re / Aooe¡¡our¡
D¡re: 06/08/201 7 E NEWMERoHANT
E ExrsïNG MERoHANT E ADD LocATroN EXrsrNG srrÉ rD E S¡¡e-TSenv¡ces
I SERVToE WEBsrrE Mps pARENT ENrry. Siriusware= 40753
Mencxt¡¡r lruroRMATroN
LEGAUCoRPoRATE Nnve: CitV of Kent Psor.¡e#: 253-856-6777
ADDRËss 1: 625 West James Street FAX #:
ADDRESS 2:PRtNcrpAL NAMÊ: Arletta Voter / DireCtOr Of F¡nanceE Corr¡cr
crrv: Kent PRrNc¡PAL PHoNE: 253-856-6704
sr¡re: WA zrp: 98032 PRtNctpAL EMAL: avoter@shoWarecenter.com
CoUNTRY:PREFERRED coNrAcr METHoD Email
FEDERAL TAx tD: 91 -6001 254 OwNERsHrp TypE: Government State/LocaUFed
INDUSTRY: Restaurant QSR SUPPoRT Svc PRoVTDER: Elavon SUPPoRT Svc PHoNÊ #:
DBA/MERcHANT LocATtoN (tr orrrenerur IHAN MERcHANT lruronunrroru)
DBA NAME: Showare Center Concessions PRrNcrpAL NAME: Arletta Voter / DirectOr Of FinanCeE co¡¡racr
ADoREss t: 625 West James Street pxor'¡e*: 253-856-6704
ADDRESS 2:FAX #:
clw: Kent Sr¡rE: WA ztP: 98032 EMA|L: avoter@showarecenter. com
Corurecr leunroRtzED By PRtNctpAL ABovE To MAKE AccouNT cHANGES)
F¡nsr N¡uE: Brad Lesr tlnue: Olson T¡rm: Director of Food and Beverage
Pso¡¡e: 253-856-671 6 FAX #:EùtclL: baolson@Showarecenter.COm
Fees (Snre-T SERvtcEs AND SERVIcE WEBstrE)Fees (Senvce WeBstrE oNLV)
Fees - pnlo vle ACH oeelr oH oR AFTER THE EFFEcIvE DATE
FEE FREQUENCY PRIcE FEE FREQUENCY PRrcE
IMPLEI4ENTAÏoN FEE (pER LocATroN)ONE TIME $ z¿gs SETUP FEE (PER LocATIoN)ONE TIME $
Fees - pro vrn ACH oeelr
FEE FREoUENCY PRICE FEE FREQUENcY PRICE
MoNTHLY HoSTING FEE (PER LocATIoN)MoNTHLY $10 MoNrHLy HosTtNG FEÊ (pER LocATtoN)I\4ONTHLY $
MoNTHLY SuppoRT FEE (pER LocATroN)MoNTHLY $o MoNTHLY SuppoRr FEE (pER LocATtoN)MONTHLY $
SIMPLIFY SoFTWARE SUPPoRT SVcs FEE
IÞFÞ TÊÞMìNÀI ITô ÞE¡ ôuA ANNUAL $ 12.00
F¡es - Pero vn ACH oearr lH IRREARs
FEE FREQUENcY PRICE FEE FREQUENcY PRrcE
GATEWAY/CoNNEcïvrrY FEE PÊR TRANSAoTIoN $ 0.035 CoNNEcïvrrY FEE PER lRANsAcroN $
SAFE-T FEE PER TRANSACfIoN $ 0.015
AurH PRrcrNG PRocn¡m: 350 I 1
RusH SHTPN4ENT (NExr OevAra): $
APPLEATIoil þAdNG, Xw INJEcnoN AND
Qw BUNDLE#DEscRrPTroN PURcHASE lren eutot-e¡
47 89 Siriusware EMV lSC250 USB POS CommBox $ az¿
2 97 Siriusware EMV lPP320 USB POS CommBox $ 694
$
Ornen HanownRE/PURcHASED EoutpMENT (SAFE-T SERVtcEs INCLUDES STANDARD SI{IPPING
Qw DEscR¡PÍoN PuncnasE (ren rrem¡
$
$
TorAL PER SrrE $
Safe-T/Service Website Enrollment (ACQ) I I l6
55
Btuurrrlo I ruroRu¡nor,¡
BANK NAME: Heritage Bank ABA RourNc #: 3251 70835 ooA+:100554840
BìLLING METHOD: ACH tnpe lD: 33 - US/USD
AUTHORIZATION FOR AUTOMATIC WITHDRAWAL OF MONTHLY PAYMENTS
MERoHANTWLL ESTABLISH AND MAINTAIN WITH AN ACH PARTIcIPATING FINANCIAL INSTITUTIoN ONE OR MORE DEMAND DEPOSIT ACCOUNfS (DDAS) 10 FACILIIATE PAYMENT OF FEES UNDER THE
AGREEMENT. MERoHANT WtLL MA|NTA|N sUFFtctENT FUNDS tN THE DDA To AccoMN4oDATE ALL FEES DUE UNDER THE AGREEMENT. MERoHANT IRREVoCABLY AUTHoRIZES ELAVoN To INITIATE
ACH DEBII ENTRTES TO THE DDA FOR ANY FEES DUE UNDER THE AGREEI\4ENT ìN ORDER TO COLLECT PAYMENTS FROM MERCHANT DUE UNDER THE AGREEMENT' THE FOREGOING
AUTHoRtzATtoNs wtLL REMATN tN EFFEcTAFTER TERt\4tNATtoN oF THE AGREEMENI uNTIL ALL oF THE MERcHANT's oBLlcATloNs ro ELAVON HAVE BEEN PAID lN FULL.
Crno Tvpes
AUTHoRIzATION SETTLEMENT
CARD BRAND PRoCESSOR/TPP MID SaME As AurH PROCESSOR/TPP MID
E V|SA,/MASTERCARD
ELAVON 80302036 1 I X
E DrscovER (uNtoN PAY)
E] DTNERS lNrL
E Jce
E PIN DEBtr (¡usercxo"rv)
AMERIcAN EXPRESS tr
GrFT CARD tr
PRIVATE LABEL tr
PRocEssoR NAME: Elavon CoNrAcr NAME: Alex Kotovic CoNrAcr PHoNE : 206 -396 -6207 CoNrAcr EMAIL: alex. kotOvic@elavo
PRocEssoR NAME:CoNTAcr NAME:CoNTAct PHoNE:CoNTAcr E¡¿tAtL:
VAR SERV|oE PRovIDER: Siriusware POS/PMS APPLtcArloN NAME: Sales VERsroN: 4.5
VAR SERVICË PROVIDER:POS/PMS APPLIoATION NAME:VERSIoN:
TEGHNTGAL CoNTAcr
coNrAcrNAN4E: Brad Olson P¡ro¡re #: 253-856-67 1 6 EMAIL:
SERvfcE WEBstrE USER SEÍUP lrvEw usERs oNLY)
USER NAN4E: BTAd OISON UsER EMA|L:.com usER TrME zoNE: Pacific
Corurn¡cr Tvpe: Ouen
MeRcsnrut
SIGNATURE: X Pnr¡¡reo N¡rvrg: Arletta Voter trrr-e: Director of Finance DATÉ:
EFFEcTVE DATE: 610812017PRINTED NAME: AICX KOtOViCStGNATURE: X
Accepreo Bv nr.rnr Use Orlv)
SALES REP PHoNE: 206-396-6207SALES REP NAME:AIex KotOviC
SALES REP EMAL:SALES REP NUMBER:
RM NUMBER:RM NAME:
IMPLEMENTATION
REouEsrED co LrvED^rE: 0810112017REauEsrED lNsrALL oerc: 0711512017
lrurennaL UsE ONLY
Safe-T/Service Website Enrollment (ACQ) I I l6
56
ila'f,en SAFE-T Services Addendum to TOS (v.10.07. I 5)
Pursuant to this SAFE-T Services Addendum and the related
enrollment form (the "Enrollment Form"), Merchant elects
and agrees to accept the services indicated on the Enrollment
Form, as part of the Processing Services, as such services are
described in this SAFE-T Services Addendum and the exhibits
hereto. This SAFE-T Services Addendum is an addendum to
and supplements the Agreement (as defined on the Enrollment
Form), replaces and supersedes Section G-SAFE-T for SMB
Services of the Terms of Service C'IOS) of the Agreement,
and, except as expressly set forth herein, is subject to and
governed by the terms of the Agreement. Capitalized terms
used and not otherwise defined in this SAFE-T Services
Addendum shall have the meanings ascribed to them
elsewhere in the Agreement, including the TOS, the Merchant
Operating Guide ("MOG") and the Enrollment Form.
FOR THE PURPOSES OF THIS SAFE-T SERVICES
ADDENDUM, THE TERM "PAS_IEVICE(Ð" REFERS
ONLY TO PAYMENT TERMINALS AND DOES NOT
REFER TO ANY OTHER POINT-OF.SALE DEVICES OR
SOFTWARE.
TERMS AND CONDITIONS
l) DESCRIPTION OF SAFE-T SERVICES. Subject to
the terms and conditions of this SAFE-T Services
Addendum and the Agreement, Elavon shall provide
Merchant with the following services (the "SAFE-T
Services"):
(a) ENCRYPTION SERVICES, which shall consist of
decryption of Transaction Receipts properly
encrypted by Merchant using Elavon-approved
software, encryption keys and Hardware (as defined
below), all in accordance with the terms and
conditions of this SAFE-T Services Addendum and
the Agreement (such services, the "EnCrypûS!
Services"); and
(b) TOKENIZATION SERVICES, which shall consist
ofthe services described in Section C ofthe TOS.
2) MERCHANT RESPONSIBILITIES. Merchant shall
cause the appropriate hardware, including POS Devices
and any hardware provided by or on behalf of Elavon
from time to time, to be readily available for use at all
Merchant locations that are the recipients or users of the
SAFE-T Services (the "HA¡dwarc').
3) FEES. Merchant shall pay Elavon the SAFE-T Services
fees and all other fees set forth on the Enrollment Form.
4) LIABILITY; DISCLATMER OF WARRANTIES.
MERCHANT EXPRESSLY ACKNOWLEDGES AND
AGREES THAT THE DISCLAIMERS OF
WARRANTIES AND THE LIMITATIONS OF
LIABILITY CONTAINED IN THE TOS SHALL
SAFE-T SERVICES ADDENDUM TO TOS
(or Processing Services)
APPLY WITH RESPECT TO THE SAFE.T SERVICES,
THE HARDWARE AND ANY LICENSED PRODUCTS
(INCLUDING ANY SOFTWARE), IF ANY,
PROVIDED TINDER THIS SAFE-T SERVICES
ADDENDUM AND THAT THE SAFE-T SERVICES,
HARDWARE AND LICENSED PRODUCTS
(INCLUDING ANY SOFTWARE), IF ANY,
PROVIDED UNDER THIS SAFE-T SERVICES
ADDENDUM ARE PROVIDED *AS IS".
NOTWITHSTANDING THE FOREGOING, THE
TERMS OF ANY EXPRESS LIMITATION OF
LIABILITY OR DISCLAIMER OF WARRANTIES
CONTAINED IN ANY SCHEDULE, EXHIBIT, OR
ADDENDUM HERETO SHALL CONTROL WITH
RESPECT TO THE SERVICES AND PRODUCTS
(INCLUDING HARDWARE AND SOFTWARE), IFANY, PROVIDED PURSUANT TO SUCH
SCHEDULE, EXHIBIT, ORADDENDUM.
5) TERM. This SAFE-T Services Addendum shall be
effective as of the Effective Date set forth on the
Enrollment Form and shall continue until the expiration or
termination of the Agreement.
6) TERRITORY; RECEIPT OF SAFE-T SERVICES IN
CANADA. Merchant is permitted to receive SAFE-T
Services only in the jurisdiction orjurisdictions in which
Merchant is permitted to receive Processing Services
pursuant to the Merchant Application (the "TCifiIAry").
References herein to "Elavon" shall be deemed to refer to
(i) Elavon, Inc., in the event that the Merchant is
receiving SAFE-T Services in the United States, and (ii)
Elavon Canada Company, in the event that Merchant is
receiving SAFE-T Services in Canada.
7) OTHER TERMS. This SAFE-T Services Addendum
forms a part of the Agreement and, together with the
terms and conditions contained herein and exhibits
attached hereto, is the entire agreement of the parties with
respect to the subject matter hereof and supersedes all
prior written or oral agreements, representations and
understandings with respect thereto. Notwithstanding
any'thing therein to the contrary, no terms set forth in any
purchase order, proposal, or other such document
executed by the parties with respect to the subject matter
ofthis SAFE-T Services Addendum shall be enforceable
against a party hereto. In the event ofa conflict between the
terms and conditions of this SAFE-T Services Addendum
and any other terms and conditions of the Agreement, the
terms and conditions of this SAFE-T Services Addendum
shall control with respect to the subject matter herein.
SAFE-T Services Addendum to TOS (for Processing Services)
57
E?algn SAFE-T Services Addendum to TOS (v.10.07. I 5)
EXHIBIT Ä TO SAFE-T SERVTCES ADDENDUM
Encrvption Services License Terms and Conditions
Merchant shall receive encryption keys and an encryption terminal application for encryption of card data (the "Application") from
Elavon. The specific applióátion to be received by Merchant will be as set forth on the Enrollment Form. This Exhibit A shall be a
part of the SAFE-T Services Addendum.
General Terms and Conditions
l. Sublicense. Subject to the terms and conditions of the Agreement and this SAFE-T Services Addendum (including, without
l¡*itu¡on, tltis Exhibit A), and the payment of all applicable fees, Elavon hereby grants to Merchant a limited, personal, non-
exclusive, revocable, non-sublicensable, and non-transferable sublicense for the term ofthis SAFE-T Services Addendum to use
the Application as installed on Merchant's POS Devices distributed by Elavon solely to encrypt Transaction Receipts processed
using such POS Devices.
2. Restrictions. Except as set forth above, Merchant shall have no right to copy, market, distribute (electronically or otherwise), sell,
u5ig", pl.dge, leaie, deliver, license, sublicense, outsource, rent or otherwise transfer the Application to any third party or use the
appìicátion for service bureau, time-sharing, or other third-party use or to provide hosting, or to market by interactive cable or
remote processing services to a third party. Merchant shall not make or permit the making of any modifications, additions or
enhancements to the Application. Merchant shall not reverse engineer, decompile, disassemble, translate, modify, alter or create
any derivative works bãied upon, or change, the Application, or any part thereof, or determine or attempt to determine any source
coãe, algorithms, methods oitechniques embodied in the Application, or part thereot without the prior written consent of Elavon
and its licensor. Merchant agrees not to use the Application except as expressly licensed hereunder. Merchant may not sell or
transfer any pOS Devices oñ which any Application or encryption keys are installed to any party unless Merchant has first
provided Eiavon with prior written notiıe and (i) removed the Application and encryption keys from the POS Devices and (ii)
àestroyed the encryption keys in a manner compliant with then-current Payment Card Industry Data Security Standard (PCI-DSS)
requirements. Elávon andlor its designated agent may monitor and audit Merchant's use of the Application for purposes of
verifying compliance with the Agreement and this SAFE-T Services Addendum, including this Exhibit A.
3. New Releases. From time to time, Elavon may provide updates, modifications, or new versions of the Application (each, an
"¿pptlçøfS! irþê¡g"), provided that Merchant complies with the terms set forth in the Agreement and this SAFE-T Services
aãen-.,inclu¿ingihisExhibitA.ForMerchantsutilizinganApp1icationlicensedfromVoltageSecurity,Inc.,Elavonshall
automatically provisi,on each such Application Release to the Merchant's POS Devices (an "Automatic Release"). For Merchants
utilizing an Àpplication licensed from Verifone, Inc., Elavon shall provide such Application Releases to Merchant for installation
by Meıhant, in which case Merchant must ensure that Application Releases are installed and implemented within fourteen (14)
dâys of becoming available to Merchant (a "MalUa!ÅCþgC9"), provided, however, that Elavon reserves the right to implement
Automatic Releases for such Merchants upon notice to Merchant. Elavon shall not be responsible for any updates, upgrades or
changes to Merchant's computer systems that may be necessary in conjunction with delivery, installation or use of any new
Application Release.
4. Reservation of Rishts. Merchant acknowledges and accepts that, as between the parties: (i) all right, title and interest in and to the
Appttcatto" a"d att intellectual property rights associated with and in the Application shall at all times remain vested in Elavon
and its supplier/licensors; and (iì) Merchant shall acquire no rights, express or implied, in the Application, other than the limited
sublicensé granted herein. Merchant shall not remove from the Application, or alter, any trademarks, trade names, logos, patent
or copyrighl notices, proprietary notices, titles, legends or other notices or markings contained therein, or add any notices or
mart ings to the Appliiation, without the express written consent of Elavon and its licensor. The confidentiality obligations of
Merchant under the Agreement apply to the Application licensed hereunder and Merchant shall limit access to the Application to
only those employees and contractors of Merchant with a need to access the Application to perform its services.
5. Termination. The license rights granted herein to the Application shall cease in the event (i) Merchant sells or otherwise transfers
"
POS D*'i.e containing the Application to any party (other than to a permitted assignee under the Agreement); (ii) Merchant is
no longer deemed an active customer using the Application to encrypt Transaction Receipts processed by Elavon; or (iii) Elavon
is no lınger authorized by its licensor to continue to use and/or sublicense the Application. Upon termination, all license rights
granted tó Merchant herein to the Application shall immediately cease and Merchant shall discontinue any and all use of the
Application and delete all copies of the Application on the POS Devices or otherwise within the control of Merchant.
2
EXHIBITA
58
ilñîrL SAFE-r services Addendum to ros (v. 10.07. r 5)
6. Exnort and Imnort Resulations. Merchant acknowledges that the Application contains cryptographic features and is subject to
United States and local country laws governing import, export, distribution and use. Merchant is responsible for compliance by
Merchant with United States and local country laws and regulations and shall not export or transmit the Application (i) in
violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders.
7. U.S. Government Restricted Rishts. If the Application is accessed or used by any agency or other part of the U.S. Government
ifre U.S. Cove¡nment acknowledges that (i) the Application and accompanying materials constitute "commercial computei
software" and "commercial computer software documentation" under paragraphs 252.227.14 and, 252.227.7202 of the DoD
Supplement to the Federal Acquisition Regulations ("DFARS') or any successor regulations, and the Govemment is acquiring
only the usage rights specifically granted in the Agreement; (ii) the Application constitutes "restricted computer software" under
paragraph 52.227 19 of the Federal Acquisition Regulations ("FAR') or any successor regulations and the government's usage
rights are defined in the Agreement and the FAR.
8. NO \{ARRANTIES: DISCLAIMERS. THE APPLICATION IS PROVIDED ON AN ..AS IS'' BASIS IN ITS PRESENT
STATE AND CONDITION. WITHOUT LIMITING ANY TERMS UNDER THE AGREEMENT OR THIS SAFE-T
SERVICES ADDENDUM, NEITHER ELAVON NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE APPLICATION,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT,
IMPLIED CONDITTON OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTY FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
9. Fees and Payment. Merchant shall pay Elavon the fees set forlh on the Enrollment Form for the sublicense to the Application
granted to Merchant hereunder (the "Encryption Termi ") and for the services provided by Elavon
with respect to encryption key injection (the "Encryption Terminal Application Load and Kev Injection Fees"). The Encryption
Terminal Application License Fees and Encryption Terminal Application Load and Key Injection Fees will each be assessed per
POS Device and will be due and payable upon the Effective Date indicated on the Enrollment Form.
Snecial Terms Applicable to Apnlications Sublicensed from Verifone. Inc.
In the event that Merchant has received a sublicense to an Application provided by Verifone, Inc., the following additional terms and
conditions shall apply:
A. Territorv. Notwithstanding anything in this SAFE-T Services Addendum or elsewhere in the Agreement to the contrary,
Merchant may use the Application solely as installed on Merchant's POS Devices located in the United States.
B. Limitation of Liabilitv. NOTWITHSTANDING ANYTHING IN THE AGREEMENT, INCLUDING THIS SAFE-T
SERVICES ADDENDUM, TO THE CONTRARY, IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS,
OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
LOSS OF USE OR DATA, LOST PROFITS OR BUSINESS INTERRUPTION) BY OR ON BEHALF OF MERCHANT
OR ANY CLAIMS BY ANY THIRD PARTIES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,
WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
ARISING IN ANY WAY OUT OF THE PROVISION OR USE OF THE APPLICATION, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS, OR
AGENTS HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY MERCHANT FOR ANY CLAIMS ARISING IN
ANY WAY OUT OF THE PROVISION OR USE OF THE APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
Snecial Terms Apnlicable to Apnlications Sublicensed from Voltaee Securitv. Inc.
ln the event that Merchant has received a sublicense to an Application provided by Voltage Security, Inc., the following additional
terms and conditions shall apply:
A. Territorv. Merchant may use the Application solely as installed on Merchant's POS Devices located in the Teritory
B. Limitation of Liabilitv. NOTWITHSTANDING ANYTHING IN THE AGREEMENT, INCLUDING THIS SAFE-T
SERVICES ADDENDUM, TO THE CONTRARY, IN NO EVENT SHALL ELAVON OR ITS LICENSORS, SUPPLIERS,
OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR
EXHIBIT A
59
EIAç}î sAFE-r services Addendum to ros (v.10.07.r5)
CONSEQUENTIAL DAMAGES (IN EACH CASE, INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OR DATA, LOST PROFITS OR BUSINESS INTERRUPTION)
BY OR ON BEHALF OF MERCHANT OR ANY CLAIMS BY ANY THIRD PARTIES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE PROVISION OR USE OF THE
APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ELAVON
OR ITS LICENSORS, SUPPLIERS, OR AGENTS HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY
MERCHANT FOR ANY CLAIMS ARISING IN ANY WAY OUT OF THE PROVISION OR USE OF THE
APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. Third party Beneficiarv. Voltage Security, Inc. is a designated third parry beneficiary under this Exhibit A with the right to
enforce ull t r¡¡rãGã-to the Ãpplication under this Exhibit A directly against Merchant. Goveming law for any claim
brought by the designated third pãity beneficiary shall be the law of the jurisdiction within the United States in which the
claim is biought; pıvided, that if Mêrchant is a govemment entity or institution, governing law for any such claim shall be
that set forth in thè Agreement, as modified by the Govemment Entities and Institutions Addendum thereto (if applicable).
4
EXIITBIT A
60
SAFE-T Services Addendum to TOS (v.10.07.15)
EXHIBIT B TO SAFE-T SERVICES ADDENDUM
Equipment Schedule
This Exhibit B shall be a part of the SAFE-T Services Addendum
1. Equipment and Pricins.
(a) Purchased Equipment. Merchant has elected to purchase the equipment set forth on the Enrollment Form (the "PUfCbAæd
Equipment") from Elavon pursuant to this SAFE-T Services Addendum. The fees payable by Merchant for the Purchased
Equipment are set forth on the Enrollment Form.
(b) Shinpins. The fees payable by Merchant for shipment ofthe Purchased Equipment to the location or locations designated by
Merchant are set forth on the Enrollment Form; provided, however, if the shipping fees are not set forth on the Enrollment
Form, then all actual costs and expenses ofshipping shall be paid by Merchant. Provided that the Purchased Equipment is
shipped using Elavon's freight account, Elavon shall bear the risk of loss of such Purchased Equipment until the time of
delivery; if the Merchant directs Elavon to utilize any other shipping method, Merchant expressly acknowledges and agrees
that all risk of loss for the Purchased Equipment shall pass to Merchant when the Purchased Equipment is tendered by Elavon
or on Elavon's behalf to the carrier for shipment to Merchant.
2. Terminal Software and Encrvption Kevs. The encryption keys and licensed software obtained by Merchant from Elavon
pursuant to this SAFE-T Services Addendum will be loaded onto Merchant's POS Devices specified on the Enrollment Form
prior to shipment to Merchant, and Merchant shall pay the applicable fees set forth on the Enrollment Form for any encryption
keys or licensed software that Merchant receives.
3. Warrantv Terms.
OEM Warranty: Any standard warranties provided by the original equipment manufacfurer C'OEM') of the Purchased
Equipment are, to the fullest extent permitted by the OEM, passed through to Merchant at no additional cost to Merchant; and the
OEM (and not Elavon) shall be responsible for honoring any such OEM warranty. With respect to any POS Device purchased
from Elavon, Elavon and/or its equipment vendor will facilitate the OEM warranty service as follows:
Prior to returning any POS Device under an OEM waffanty, Merchant must first obtain a return merchandise authorization
number ("RMAÀUqþq") from Elavon. Merchant nrust then ship such POS Device to Elavon's equipment vendor at the address
provided by Elavon, with reference to the RMA Number. Elavon's equipment vendo¡ will either handle the OEM warranty issue
itself or ship the POS Device to the OEM for further handling. Upon Elavon's equipment vendor either handling the warranty
issue itself or receiving a repaired or replacement POS Device from the OEM, Elavon's equiprnent vendor will ship the repaired
or replacement POS Device to Merchant.
Merchant will bear the risk of loss of any returned POS Device until the time of delivery to Elavon's equipment vendor with
proper reference to the RMA Number. For any repaired or replacement POS Device shipped to Merchant, the risk of loss will
transfer to Merchant at the time of delivery to Merchant. In all cases, Merchant shall be responsible for all shipping and handling
costs associated with such OEM warranty service, including reimbursing Elavon for any shipping and handling costs paid by
Elavon on Merchant's behalf.
If Merchant has selected additional waranty options for POS Devices purchased from Elavon, as indicated on the Enrollment
Form, the following terms shall apply, as applicable, limited only to such POS Devices purchased from Elavon (and specifically
excluding any other peripheral equipment purchased from Elavon and all equipment purchased from a third party):
Premium Advanced Exchange Program:
The Premium Advanced Exchange Program provides the following services during the applicable warranty period as specified on
the Enrollment Form, which shall commence on the date of shipment of the POS Device to Merchant:
i. In the event that a POS Device requires service, on Merchant's request, Elavon will ship a like-model, refurbished POS
Device to Merchant for delivery the next business day (provided Merchant's request is received prior to 6 p.m. Eastern
time) at no additional cost to Merchant. The refurbished POS Device will be configured and tested prior to shipment to
Merchant.
ii. Merchant will be provided with a call tag to enable Elavon to retrieve or cause the retrieval of Merchant's POS Device
requiring service. Merchant must use the call tag promptly upon receipt. If Elavon does not receive the POS Device
EXHIBTT B
5
61
EIAç}| sAFE-rServicesAddendumtoros(v.10.02.r5)
requiring service within thirty (30) days of the issuance of the call tag, Merchant may be charged the cost of a new
replacement POS Device.
iii. Elavon will retrieve or cause the retrieval of the POS Device requiring service at no additional cost to Merchant'
iv. Elavon will bill Merchant, and Merchant will be responsible for paying Elavon, for the costs of repairing POS Devices
retrieved by Elavon unless such repairs are covered by the OEM warranty.
With regard to the premium Advanced Exchange Program: (a) Merchant must initiate the exchange process with Elavon, and (b)
Elavon will bear the risk of loss of the refurbished POS Device sent to Merchant and the POS Device requiring service while such
pOS Devices are in the possession of Elavon or its freight carrier, and Merchant shall bear the risk of loss at all other times'
Premium Repair Warranty Program:
The premium Repair Warranty Program provides the following services during the applicable warranty period as specified on the
Enrollment Form, which shall commence on the date of shipment of the POS Device to Merchant:
i. All repair fees, service, and parts related to any repair ofthe POS Device, other than with respect to repairs attributable
to misuse or abuse of the POS Device or cosmetic damage not affecting the performance of the POS Device.
ii. Cleaning and testing of repaired POS Devices.
With regard to the Premium Repair \Varranty Program: (a) Merchant must obtain an RMA Number from Elavon in order to
initiate ùre warranty process, and (b) Elavon will beãr the risk of loss of the repaired PoS Device while such PoS Device is in the
possession of Elavon or its freight canier, and Merchant shall bear the risk of loss at all other times.
For the avoidance of doubt, any and all warranties provided under this SAFE-T Services Addendum, including this Exhibit B. shall
not extend to any equipmen! software or hardwa¡e purchased from any third party.
4. Miscellaneous Terms/Disctaimer. IN THE EVENT OF ANY DEFECT, MALFUNCTION, ERROR, OR DAMAGE TO ANY
@VIDEDHEREI'INDER,ELAVoN,SSoLEoBLIGATIoNSHALLBETHEPRoVISIoN
OF WARRANTY SERVICE PURSUANT TO THE WARRANTY OPTION (IF ANY) SELECTED BY MERCHANT ON THE
ENROLLMENT FORM, AND MERCHANT'S SOLE REMEDIES WITH RESPECT TO ELAVON SHALL BE THE RECEIPT
OF WARRANTY SERVICE FROM ELAVON OR ITS DESIGNEE PURSUANT TO SUCH WARRANTY OPTION OR
UNDER THE MANUFACTUR.ER'S WARRANTY. ELAVON SHALL HAVE NO LIABILITY TO MERCHANT FOR
COSTS, LOSSES, OR DAMAGES OF ANY KIND ORNATURE, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR
OTHERWISE, WITH RESPECT TO ANY SUCH DEFECT, MALFLINCTION, ERROR, OR DAMAGE.
6
EXHIBIT B
62
ilaçîn
1.
SAFE-T Services Addendum to TOS (v. 10.07. 15)
EXHIBIT C TO SAFE-T SERVICES ADDENDUM
Simplifv Software License
This Exhibit C shall be a part of the SAFE-T Services Addendum.
Section A - Terms and Conditions
Definitions. Capitalized terms used in this Exhibit C (the "Sj¡SpLfy!C9$9") and not otherwise defined herein shall have the
meanings ascribed to them in the glossary set forth in Section B ofthis Simplifu License or, ifnot defined in such glossary, as
defined in the Agreement.
2. License Grant and Permitted Use.
(a) Elavon hereby grants to Merchant a non-exclusive, non-sublicensable, non-assignable, limited license in the Territory to use
and allow Authorized Users to use the Simplif, Software as installed on terminals owned or otherwise controlled by
Merchant and to install, use, and allow Authorized Users to use any subsequent Releases of such Simplify Software provided
to Merchant from tirne to time, solely for Merchant's intemal business purposes to process data in accordance with the
Documentation. This Simplify License permits Merchant to use the Simplify Software only on the POS Devices purchased
by Merchant pursuant to this SAFE-T Services Addendum, as described on the Enrollment Form. Merchant is not permitted
to use the Simplify Softwa¡e to service any other POS Devices unless permitted by Elavon in writing. Merchant is not
authorized to make copies of the Simplify Software.
(b) Elavon hereby grants to Merchant a non-exclusive, non-sublicensable, non-assignable, limited license to use and to allow
Authorized Users to use the Documentation solely in connection with access to and use of the Simplify Software pursuant to
this Simplify License. Merchant shall have the right to make a reasonable number of copies of the Documentation, at no
additional charge, solely for Merchant's own internal business purposes in connection with access to and use ofthe Simplify
Software under this Simplify License; provided, however, that all proprietary markings of Elavon must be afüxed and
retained by Merchant on any such copies.
(c) Except as provided in this Simplify License, Merchant shall not: (i) copy, re-sell, reproduce, transfer, rent, lease, pledge,
sublicense, distribute or republish in any form or by any means or allow another to use or access the Licensed Materials, or
any portion thereof, including, without limitation, to provide outsourcing, service bureau, hosting services or training to third
parties; (ii) alter, modify or otherwise prepare derivative works of the Licensed Materials; (iii) reverse engineer, disassemble
or decompile the Simplify Software, or any part thereof; (iv) remove, change or obliterate the copyright, trade secret or other
proprietary protection legends or notices which appear on or in the Licensed Materials; or (v) combine any Licensed
Materials with any unauthorized third party software. Merchant will not access or use, and it will not permit any Authorized
Users to access or use, the Licensed Materials or proprietary materials disclosed to Merchant for the purpose of creating, in
whole or in part, a system that is functionally competitive with the Simplify Software. Merchant shall promptly notify
Elavon of and shall otherwise cooperate with Elavon in preventing any unauthorized access to, or use or copying of; the
Licensed Materials by Authorized Users or any other third party.
(d) All rights not expressly granted to Merchant under this Simpliff License are reserved by Elavon.
3. Deliverv and Installation.
(a) All installation of the Simplify Software, other than installation of Releases (as described below) must be conducted by or at
the direction of Elavon. All POS Devices purchased by Merchant under the Agreement will be purchased from Elavon via
the Enrollment Form or subsequent to the Effective Date indicated on the Enrollment Form, and the Simplify Software will
be installed on such POS Devices prior to shipment to Merchant.
(b) Delivery of the Simplify Software by Elavon shall be deemed to have occurred when a POS Device with the Simplify
Software installed is tendered by Elavon or on Elavon's behalf to a carrier for shipment to the Merchant. Elavon will deliver
one (1) copy of the Documentation to Merchant in a format determined by Elavon.
4, Limited Warranties; Disclaimers.
(a) Elavon wanants as follows:(i) During the Wananty Period, the Simplify Software will include the functionality described in and will perform
substantially in accordance with the Documentation in all material respects, provided that the Simplify Software is used
in accordance with the terms of this Simpli$ License and the Documentation. In the event the Simplify Software does
not perform as warranted during the Warranty Period and Elavon is unable to remedy such nonconformity within a
reasonable time after receiving written notice thereof, Elavon shall, as Merchant's sole and exclusive remedy, refund to
Merchant the fees paid hereunder for the Licensed Materials, upon the return of the Licensed Materials by Merchant.
(ii) Elavon shall use commercially reasonable measures to screen the Simpliff Software to avoid introducing any computer
virus that is designed (A) to permit unauthorized access or use by third parties to the Simpliff Software, (B) to damage,
f,xHIBrT C
7
63
ilaÇ/ln SAFE-T Services Addendum to TOS (v 10.07. 15)
. erase or delay access to the Simplify Software, or (C) to perform any other similar actions. Elavon shall not insert any
code or othei device into any Simpiify Software that would have the effect of disabling, damaging, erasing, delaying or
otherwise shutting down all or any portion of the Simplify Software.
(iii) The Simplify SJftware Support Sirvices (as defined below) will be performed in a professional and workmanlike
manner. Elavon shall have-and maintain sufficient resources to perform the Simplify Software Support Services in
accordance with this Simplify License.
(b) Limitations. Elavon's obligåtions under Section 4(4) of this Simplify License shall not apply: (i) to any modifications'
alterations or customizationi developed by or on behalf of Merchant; (iÐ if the Licensed Materials are not used on the
equipment specified or in accordance with the Documentation; (iii) if the Licensed Materials have been installed,
implemented, customized, modified, enhanced or altered by any third party (except any third party utilized by Elavon to
prôvide ,.-i.., under this Simplify License); (iv) if Merchant is not using the most recent Release of the Licensed
il4aterials; or (v) to any error or àeféct caused by Merchant, an Authorized User or any third party (except any third party
utilized by Elavon to provide services under this Simplify License) or third party software.
5, Simplifv Software Sunport Services: Releases.
ngthetermofthisSimplisLicense,E1avonshallprovideMerchantwiththe
following support services (the "simplifv Software Su "):
(i) proùOing Merchant with solutions to any known material problem relating to each installation of the SimpliÛ/ Software
in a timely manner as such solutions become known to Elavon;
(ii) Using commercially reasonable efforts to supply timely corections for problems reported to Elavon by Merchant that
Elavon can reproduce in a curently supported version of the Simplify Software;
(iii) Furnishing a ieasonable level of telephone support, as determined by Elavon, in the form of counsel and advice on use
and maintenance of the Simplify Software; and
(iv) Providing Merchant with new Releases of the Simplify Software as provided herein.
(b) Simplify Software Support Services Fees. For so long as this Simplify License remains in effect, Merchant shall pay the fees
f"r th. ,S*pttfy S"ftware Support Services set forth on the Enrollment Form (the "Simplif,¡ Software Support Services
EggC). Mèrchant understands and agrees that Simplify Software Support Services Fees shall not include fees for
profeisional services, if any, associated with delivery and installation of any new Release of Simplify Software or
modification of the then-current Major Release of Simplify Software then in use by Merchant, which shall be agreed in
writing by Merchant and Elavon.
(c) New Releases. Merchant shall be entitled to receive all new Releases of the Simpli$ Software, including Major Releases,
ptouided that Merchant complies with the terms set forth in this Simpliff License, including, without limitation, the payment
;f all Simplib, Software Support Services Fees in full when due. Elavon shall provide new Releases of the Simpliff
Software to Merchant in a mánner consistent with the provision of new Application Releases. Elavon shall not be responsible
for any updates, upgrades or changes to Merchant's computer systems that may be necessary in conjunction with delivery,
installation or use of any new Release of the Simplify Software.
(d) Supported Releases. During the term of this Simplify License, Elavon will provide Simplify Software Support Services to
ilhantonlyfoi(Dtt'.then-currentReleaseoftheSimplifySoftware,ifMerchantlicensesanApplicationfromVoltage
Security, Inc., or, (ii) the then-current Release and, for no more than fourteen (14) days following the delivery ofthe then-
current Release, the immediately prior Release of the Simpliff Software, if Merchant licenses an Application from Verifone,
Inc. (collectively, a "supported Release"); provided that Merchant complies with the terms and conditions of this Simplify
License and the Documentation, including, without limitation, payment obligations.
(e) Unsupported Releases. If Merchant uses any Release other than a Supported Release (an "UnliUppSrtgd-89þ4$9"), Elavon
will have no obligation to provide Simpliff SoÍlware Support Services for such Unsupported Release; provided, that
Merchant shall noithereby be relieved of its obligation to pay the Simplify Software Support Services Fees. Elavon, in its
sole discretion, may elect to provide Simplify Software Support Services for Unsupported Releases at an additional charge to
be mutually determined by the parties in writing, but Elavon shall have no obligation to do so. Whether or not Elavon elects
to provide Simplif Software Support Services for an Unsupported Release, Elavon shall have no responsibility or liability
foithe complia-nco or non-compliance of any such Unsupported Release with industry standards, Laws or Payment Network
Regulations.
Resnonsibilities of Merchant.
(") \erehAllÐd4 Merchant acknowledges the Simplify Software does not veriff accuracy of information or format of any data
or information input by Merchant.
(b) Merchant Telecommunications. Merchant shall be responsible for ensuring that its telecommunications connectivity, and any
such connectivity provided by any third party on behalf of Merchant, is properly certified and maintained and complies with
applicable industry rules and regulations, including Payment Network Regulations.
(c) Mèrchant Svstems and Equipment. Merchant shall be responsible for ensuring that the systems and equipment, including,
without limitation, any POS Devices and any systems or equipment of third-party vendors used by Merchant, remain certified
and compatible with the most recent Release of the Simplify Software. Elavon shall not be responsible for any updates,
EXIIIBIT C
8
6.
64
ilaçÍJî sAFE-r Services Addendum to roS (v. r0.07.r5)
upgrades, or changes to Merchant's systerns or equipment, including, without limitation, the POS Device or any third-party
systems or equipment, that may be necessary in conjunction with delivery, installation or use of the Simplifl Software.
Failure of the Merchant's systems or equipment, including, without limitation, the POS Device, or any third-party systems, to
temain certified or to be compatible and function with a Supported Release of the Simpli$ SoÍtware as regulated and/or
required shall excuse Elavon from any and all liability under this Simplify License and in connection with any other services
that Elavon may be providing to Merchant for the failure of the Simpli$ Software to perform in accordance with the
Documentation. IfMerchant has obtained Purchased Equipment from Elavon, Elavon shall ensure that each new Release of
the Simplify Software is compatible with the Purchased Equipment until the end-of-life date established by the terminal
manufacturer for such Purchased Equipment. In the event that any Purchased Equipment reaches its end-ofJife date and
Merchant has obtained replacement POS Devices that are compatible with the Simplify Software, Merchant and Elavon may
enter into an agreement providing for the installation of the Simplif Software on such replacement terminals. Merchant will
not be obligated to pay a new license fee in conjunction with such installation, although Merchant may be obligated to pay
fees for professional services in conjunction with such installation, as agreed by the parties.
(d) ELAVON DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS OR ADEQUACY OF ANY DATA OR
OTHER INFORMATION PROVIDED OR MADE AVAILABLE BY MERCHANT OR ITS AUTHORIZED USERS, AND
ELAVON WILL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY
IN THE DATA OR RESULTS FROM USING THE LICENSED MATERIALS, EXCEPT TO THE EXTENT DIRECTLY
CAUSED BY A FAILURE OF THE LICENSED MATERIALS TO PERFORM IN ACCORDANCE WITH THE
DOCUMENTATION.
(e) Compliance b)' Merchant's Authorized Users. Merchant is responsible for compliance by each of its Authorized Users with
the terms and conditions of this Simplify License and is responsible and liable for all access and use by Authorized Users and
acts or omissions of Authorized Users under this Simplify License.
7. Fees and Pavment. Merchant shall pay Elavon the Simplifu Software Support Services Fees and such other fees for the Simpliff
Software (collectively, the "Sj¡Sp1¡fy-S9ftwg{9 i9Ë") set forth on the Enrollment Form or otherwise agreed by the parties in
writing. All Simplify Software Fees are non-refundable, except as otherwise provided in this Simplif License or SAFE-T
Services Addendum.
8. Ownership and Reservation of Riehts. Elavon retains all right, title and interest, including without limitation, all Intellectual
Property Rights, in and to the Licensed Materials, Elavon Confidential Information and all Customizations. No rights in the
Licensed Materials, Elavon Confidential Information or Customizations are granted to Merchant other than those limited license
rights expressly set forth in this Simplify License. In the event any right, title or interest in and to any Licensed Materials or to
any Customizations developed by Merchant or Elavon is deemed to vest in Merchant, Merchant hereby assigns and agrees to
assign to Elavon all worldwide right, title, and interest in and to such Licensed Materials and to any Customizations, including all
intellectual property rights therein.
9. Disc|aimeT. THE SIMPLIFY SOFTWARE AND ALL LICENSED MATERIALS AND CUSTOMIZATIONS ARE
PROVIDED ON AN "AS IS'' BASIS IN THEIR PRESENT STATE AND CONDITION. WITHOUT LIMITING ANY TERMS
UNDER THE AGREEMENT, NEITHER ELAVON NOR ITS SUPPLIERS MAKES ANY WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SIMPLIFY SOFTWARE, LICENSED
MATERIALS, AND CUSTOMIZATIONS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, IMPLIED CONDITION OF SATISFACTORY QUALITY OR FITNESS
FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE.
10. Export Control Notice. Merchant acknowledges that the Licensed Materials are being delivered to Merchant in the United
States and are, therefore, subject to United States export control laws. Merchant shall not export, re-export, directly or indirectly,
the Licensed Materials f¡om the United States without Elavon's prior written authorization and agrees to comply with applicable
United States and foreign export control laws, including, by way of example, the United States Commerce Department's Export
Administration Regulations, the International Traffic in Arms regulations and any regulations or licenses administered by the
Department of the Treasury's Office of Foreign Assets Control.
Section B - Glossary
Authorized User means any individual that Merchant permits to access and use the Simplify Software for Merchant's ordinary
business purposes.
Customizations means any works of authorship, work product, and any invention, process, method, development, design,
schematic, or tçchnical information, whether patentable or not, including, without limitation, documentation, software or
9
EXHIBITC
65
ilAç}îL SAFE-r Services Addendum to ros (v. 10.07. 15)
enhancement, improvements, alterations, of derivatives of the Simpliff Software or the Licensed Materials developed by Elavon,
either alone or jointly with others, in connection with the provision of Simplify Software Support Services.
Documentation means the specifications and written services description for the Simplify Software that are delivered to
Merchant under this Simplify License, including user manuals, all as may be amended by Elavon from time to time.
Documentation shall not include marketing materials, proposals, demonstrations and other promotional information.
Licensed Materials means one installed copy of the executable code (i.e. object code) of the Simpliff Software per authorized
Merchant POS Device and a copy of the Doóúmentation reasonably necessary for a user to operate the Simplifr Software and any
permitted copies of the foregoing.
Major Release means any additional or replacement code or Documentation provided by Elavon that adds major new capabilities
or firnctionality to the Licensed Materials, as designated by a change in the number to the left of the decimal point in the version
number (e.g., iom version 1.0 to 2.0). Major Release does not include new or additional modules of Licensed Materials, which
must be licensed separately from Elavon.
Minor Release means any additional or replacement code or Documentation provided by Elavon that does not add major new
capabilities or functionality and that is made generally available by Elavon to its customers using the applicable Major Release of
thè Licensed Materials, as designated by a change in the number to the right of the decimal point in the version number (e.g., from
version 1. I to version 1.2).
Release means Major Releases, Minor Releases and Revisions, collectively.
Revision means any product temporary fix, error corrections, work-around, or other maintenance correction made available by
Elavon to its customers, as designated by a change in the number to the right of the second decimal point in the version number
(e.g., from 1.1.1 to 1.1.2).
Simplify Software means the installed version of the software application referred to and marketed as the Simplif, software,
including any Releases made available by Elavon to Merchant under this Simplif License.
Simplify Software Fees means the applicable fees for the Licensed Materials, Simplify Software, Simplifr Software Support
Services, and any other services or products, as set forth on the Enrollment Form.
Simplify Software Support Services means the support services provided by Elavon to Merchant, as set forth in Section 5 of this
Simplify License.
Supported Release has the meaning given to it in Section 5(d) of this Simpliff License.
Unsupported Release has the meaning given to it in Section 5(e) of this Simplify License.
'lVarranty Period means the period beginning on the Effective Date indicated on the Enrollment Form and ending on the earlier
of ninetylg0) days from the Effective Date or the date of Merchant's fìrst use in a production environment of a POS Device on
which the Simplify Software is installed.
EXHIBITC
l0
66
ilaçM Service Website Addendum to TOS (v.10.07. 15)
Pursuant to this Service Website Addendum and the related
enrollment form (the "E¡tO!¡Sgú JSt!q"), Merchant elects to
utilize the Service Website (as defined below) for certain
Transaction management functionality. Access to the Service
Website shall be deemed to constitute a part of the Processing
Services. This Service Website Addendum is an addendum to
and supplements the Agreement (as defined on the Enrollment
Form) and, except as expressly set forth herein, is subject to
and governed by the terms of the Agreement. Capitalized
terms used and not otherwise defined in this Service Website
Addendum shall have the meanings ascribed to them
elsewhere in the Agreement, including the Terms of Service
('TO!'), the Merchant Operating Guide ("MOG") and the
Enrollment Form.
PART I-DEFINITIONS
Administrator means the Merchant employee designated
by Merchant to establish user groups for access to the
Service Website by Authorized Users of Merchant and to
issue and manage user IDs and passwords of Authorized
Users.
Authorized Users means the Merchant's employees or
other authorized personnel expressly authorized by
Merchant or Elavon to access and use the Service
Website.
Service Website means the browser-based user interface
operated by Elavon and located at the URL designated by
Elavon (as such URL may be updated from time to time),
which provides Merchant with batch management,
settlement balancing, and Transaction research and
reporting functionality.
PART II - TERMS AND CONDITIONS
Merchant Access and Use of the Service Website.
Subject to the terms, conditions and limitations set forth
in the Agreement, Elavon grants Merchant a limited,
revocable, non-exclusive, non-assignable, non-
transferable right during the Initial Term and any Renewal
Term of the Agreement to access and use the Service
Website solely for Merchant's own internal business
purposes in accordance with the terms and conditions of
the Agreement, including this Service Website
Addendum. Merchant and its Authorized Users will not,
and will ensure that their employees do not: (i) transmit
any data that contains software viruses, time bombs,
worms, Trojan horses, spyware, disabling devices,
malicious code, or other harmful or deleterious computer
code, files or programs to the Service Website; (ii)
interfere with or disrupt the servers or networks providing
the Service Website, or violate the regulations, policies or
SERVICE WEBSITE ADDENDUM TO TOS
(for Pro cessing S ervice s)
procedures of any associated networks; (iii) remove,
change or obliterate the copyright, trade secret or other
proprietary protection legends or notices that appear in
connection with access to and use of the Service Website;
or (iv) copy, re-sell, republish, download, frame or
transmit in any form or by any means the Service
Website, or any part thereof including, without
limitation, in order to act as a consultant, service bureau,
outsourcing or application service provider for any third
parties, or otherwise allow any third party to use or access
the Service Website. Merchant will not access or use, and
it will not permit any Authorized User to access or use, the
Service Website for the purpose of creating, in whole or in
part, a system or service that is functionally competitive
with the Service Website or the Processing Services.
Merchant shall promptly notiff Elavon of and shall
otherwise cooperate with Elavon in preventing any
unauthorized access to, or use or copying o{ the Service
Website, or any part thereo{ by Merchan! Authorized
Users or any third party. Merchant is and shall remain liable
for all access and use by Merchant and its personnel
including, without limitation, Authorized Users, of the
Service Website.
2. Monitorine. Merchant acknowledges and agrees that
Elavon may be able to monitor access to and use of the
Service Website and to prohibit any access or use of data
or information within the Service Website that Elavon
reasonably believes is unauthorized, may violate
applicable law or that may pose an unacceptable risk of
material harm to Elavon, other Elavon customers or
Elavon's systems; provided, however, that Merchant
further acknowledges and agrees that Elavon has no
obligation to detect or prevent, and will have no liability
for failing to detect or prevent, any unauthorized access to
or use of the Service Website using any password or user
ID assigned to or by Merchant.
3. Administration: Authorized Users. Merchant shall
designate an Administrator in writing. The Administrator
shall create passwords and user IDs for Authorized Users,
and Merchant shall be responsible for the distribution and
security of such passwords and user IDs. Merchant is
responsible for ensuring the access granted to each
Authorized User is limited to only the access and
information necessary for the Authorized User to perform
his or her job functions on behalf of Merchant. Merchant
is responsible for compliance with this Service Website
Addendum by each of its Authorized Users and is solely
responsible for all acts or omissions of the Authorized
Users.
Service Website Addendum to TOS (for Processing Services)
67
EIaçîrL
4. Use of Service \üebsite bv Merchant's Affiliates.
Merchant's affiliates listed in the Affiliated Entities
Addendum to the Agreement (if applicable) shall be
permitted to use the Service Website, provided that any
such affiliates comply with all restrictions, obligations, and
requirements imposed on Merchant by this Service Website
Addendum. Merchant will, at all times, remain fully
responsible for any use of the Service Website by any of
Merchant's affrliates, to the same extent that Merchant
remains responsible for its own use of the Service Website,
except to the extent that an affiliate has entered into a
separate agreement with Elavon pursuant to which such
afüliate has agreed to be directly responsible to Elavon for
such affiliate's use of the Service Website. Without
limiting the foregoing, Merchant agrees that Elavon shall
be entitled to rely upon the accuracy and completeness of
all speciflcations, information, and data provided by a
Merchant affiliate or on behalf of a Merchant affiliate in
connection with such affiliate's use of the Service
Website to the same extent that Elavon is entitled to rely
on specifìcations, information, and data provided by or on
behalf of Merchant hereunder. Merchant's affiliates may
not enforce this Service Website Addendum against Elavon.
Merchant must promptly notify Elavon in writing: (i) in
the event any affiliate listed in the Affiliated Entities
Addendum to the Agreement no longer qualifies as an
affìliate to which Merchant will provide access to the
Service Website, or (ii) in the event that any entity not
listed in the Affiliated Entities Addendum to the
Agreement becomes an affiliate to which Merchant will
provide access to the Service Website. Merchant agrees
that Elavon may share any relevant provision of this
Service Website Addendum with any affiliate listed in the
Affiliated Entities Addendum to the Agreement that
requests to enter into a separate agreement with Elavon
for use of the Service Website or with respect to which
Merchant requests Elavon enter into such a separate
agreement.
5. Transaction Data.
(a) Elavon shall not bear and expressly disclaims any and
all liability related to Merchant's use of
telecommunications services and related networks of
Merchant or a third party, including, without limitation
any effoneous transmission, comrption or loss of data,
or inability to access the Service Website as a result of
the failure of the telecommunications systems,
equipment, resources, or software of Merchant or any
third party. Without limiting the foregoing Elavon
Service Website Addendum to TOS (v.10.07.15)
shall not be responsible for the reconstruction of any
information or data lost in transmission to or from the
Service Website due to any malfunction of Merchant's
or Merchant's third-party service provider's systems.
Merchant acknowledges that Elavon is not responsible
for ensuring or verifring the accuracy ofthe content or
format of any Transaction data received by Elavon.
MERCHANT ACKNOWLEDGES AND AGREES
THAT THE SERVICE WEBSITE RELIES ON THE
DATA AND DIRECTIONS PROVIDED BY
MERCHANT AND ITS AUTHORIZED USERS.
ELAVON DOES NOT GUARANTEE TFIE
ACCURACY, COMPLETENESS OR ADEQUACY
OF ANY DATA OR OTHER INFORMATION
PROVIDED OR MADE AVAILABLE BY
MERCHANT OR ITS AUTHORIZED USERS, AND
ELAVON WILL NOT BE LIABLE FOR ANY
ERRO& OMISSION, DEFECT, DEFICIENCY, OR
NONCONFORMITY IN DATA OR RESULTS
OBTAINED THROUGH MERCHANT'S USE OF
THE SERVICE WEBSITE, EXCEPT TO THE
EXTENT CAUSED BY ELAVON'S BREACH OF
THIS SERVICE WEBSITE ADDENDUM.
(b) Elavon shall have the right to rely on instructions and
approvals submitted by Merchant regarding access to
and use of all Merchant's Transaction data' Merchant
and its Authorized Users may view and retain certain
Transaction data stored by Elavon in accordance with
the functionality of the Service Website and this
Service Website Addendum. In the event that
Merchant wishes to access or receive copies of
Transaction data that is not accessible or downloadable
via the Service Website, Merchant may request that
Elavon provide such Transaction data and Elavon will
work with Merchant to provide such Transaction data
on mutually agreed upon terms. Notwithstanding the
foregoing or anything herein to the contrary, in the
event that, following the expiration or the termination
of the Agreement, Merchant desires to access or receive
copies ofTransaction data stored by Elavon, Merchant
shall be required to: (i) enter into a data access
agreement to be separately executed by the parties and
(ii) pay any fees imposed by Elavon in connection with
such access.
6. Fees. Merchant shall pay the fees for access to and use of
the Service Website set forth on the Enrollment Form.
2
Service Website Addendum to TOS (for Processing Servíces)
68
Terms of Service
February 2017
69
70
TOS201702 TERMS OF SERVICE
a i
TABLE OF CONTENTS
SECTION A – GENERAL PROVISIONS ............................................................................ 2
1. DEFINITIONS ....................................................................................................................... 2
2. RULES OF CONSTRUCTION ............................................................................................. 2
3. ACCEPTANCE OF PAYMENT DEVICES ......................................................................... 2
4. TRANSACTIONS ................................................................................................................. 2
5. DEMAND DEPOSIT ACCOUNT (DDA) ............................................................................ 3
6. SECURITY INTERESTS; RESERVE ACCOUNT; RECOUPMENT AND SET-OFF ...... 4
7. FEES; OTHER AMOUNTS OWED; TAXES ...................................................................... 6
8. ACCURACY OF INFORMATION; INDEMNIFICATION; LIMITATION OF
LIABILITY ........................................................................................................................... 7
9. REPRESENTATIONS AND WARRANTIES ..................................................................... 8
10. AUDIT AND INFORMATION .......................................................................................... 9
11. FRAUD MONITORING ..................................................................................................... 9
12. BUSINESS CONTINUITY ............................................................................................... 10
13. PERSONAL GUARANTY ............................................................................................... 10
14. THIRD PARTIES .............................................................................................................. 10
15. TERM AND TERMINATION .......................................................................................... 11
16. COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS;
MATCHTM AND CONSORTIUM MERCHANT NEGATIVE FILE .............................. 12
17. USE OF TRADEMARKS; CONFIDENTIALITY; PASSWORDS ................................. 15
18. MISCELLANEOUS PROVISIONS .................................................................................. 16
19. PROVISIONS APPLICABLE TO COMPANY’S ACCEPTANCE OF
TRANSACTIONS IN CANADA ...................................................................................... 20
20. EQUIPMENT LEASING .................................................................................................. 28
SECTION B – ELECTRONIC CHECK SERVICES (ECS) ............................................. 35
SECTION C – TOKENIZATION SERVICES ................................................................... 37
SECTION D – FANFARE SERVICES................................................................................ 39
SECTION E – AMERICAN EXPRESS ACCEPTANCE PROGRAM ........................... 43
SECTION F – SAFE- T FOR SMB SERVICES ................................................................. 45
SECTION G – GLOSSARY ................................................................................................. 47
71
72
TOS201702 TERMS OF SERVICE
1
TERMS OF SERVICE
These Terms of Service (TOS) and the other portions of the Agreement govern the Company’s
participation in the Program. The TOS is incorporated into and made part of the Agreement and the
signature by an authorized representative of the Company on the Company Application, or the
transmission of a Transaction Receipt or other evidence of a Transaction, shall be the Company’s
acceptance of and agreement to abide by the terms and conditions contained in the Agreement. No
strikeover of the preprinted text of the TOS shall be effective. Company acknowledges that it has
received, understands, and agrees to be bound by the Agreement.
73
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 2
SECTION A - GENERAL PROVISIONS
1. DEFINITIONS. Definitions used within this TOS are listed alphabetically in the Glossary.
2. RULES OF CONSTRUCTION. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Agreement. Singular terms shall include the plural,
and vice versa, unless the context otherwise requires. The words “hereof,” “herein,” and
“hereunder,” and words of similar import when used in the TOS shall refer to the TOS and not to
any particular provision of the TOS. The word “day” shall mean “calendar day,” unless specifically
stated otherwise. In the event of a conflict between the terms of Section (A) – General Provisions,
and any subsequent Section of the TOS, the terms of the subsequent Section shall prevail.
3. ACCEPTANCE OF PAYMENT DEVICES. Company shall determine in accordance with the
Payment Network Regulations and the Agreement which types of Payment Devices it will agree to
accept as a form of payment from its Customers. The terms and conditions for the acceptance of the
applicable Payment Devices and Company’s use of the Payment Device Processing Services are set
forth in the Agreement and in the Operating Guide, incorporated herein and located at our website
https://www.merchantconnect.com/CWRWeb/pdf/MOG_Eng.pdf. Each schedule, exhibit,
addendum or attachment to the Agreement shall be governed by the TOS and the applicable
provisions of the Operating Guide, as well as by the terms set forth in the Company Application.
4. TRANSACTIONS.
a. Company Compliance. Company must comply with all the requirements under the Agreement.
Company must also comply with the procedures set forth in the Operating Guide and any other
guides, manuals, or rules provided in writing to Company by Elavon from time to time.
b. Settlement of Transactions.
i. Deposits. Company agrees that the Agreement is a contract of financial
accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Section 365,
as amended from time to time. For purposes of Transactions in Canada, Company
agrees that the Agreement is a contract for the advance of credit to Company within
the meaning of Section 11.01(b) of the Companies’ Creditors Arrangement Act
(Canada) and within the meaning of Section 65.1(4)(b) of the Bankruptcy and
Insolvency Act (Canada). Subject to this Section, Elavon and Member will deposit to
the DDA all funds evidenced by Transaction Receipts complying with the terms of the
Agreement and the Payment Network Regulations and will provide Company
provisional credit for such funds (less recoupment of any Chargebacks, returns,
adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased
Equipment payments and other payments due under the Agreement). Company
acknowledges that its obligation to Elavon and Member for all amounts owed under
the Agreement arises out of the same transaction as Elavon’s and Member’s obligation
to deposit funds to the DDA and such amounts are owed in the ordinary course of
business.
ii. Provisional Credit. Company acknowledges that all credits for funds provided to it
are provisional and subject to reversal in the event that Elavon and Member do not
receive payment of corresponding settlement amounts from the Payment Networks.
Company further acknowledges that all credits are subject to adjustments for
inaccuracies and errors (including rejects) and Chargebacks in accordance with the
Agreement and the Payment Network Regulations, whether or not a Transaction is
charged back by the Issuer or Customer. Company authorizes Elavon or Member to
initiate reversal or adjustment (debit or credit) entries and to initiate or suspend such
entries in accordance with the Agreement as may be necessary to grant or reverse
74
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 3
provisional credit for any Transaction. Further, Elavon may delay Company-issued
Customer credits for up to five (5) business days for accounting verification. Customer
credits issued by Company to PIN-Debit Cards will not be subject to this delay.
Member or Elavon may elect to grant conditional credit for individual or groups of
Transaction Receipts. Final credit for Transaction Receipts will be granted within
Member’s and Elavon’s sole discretion.
iii. Original Transaction Receipts. Under no circumstances will Elavon or Member be
responsible for processing returns, refunds, or adjustments related to Transactions not
originally processed by Elavon and Member.
c. Processing Limits. Elavon may impose a cap on the dollar amount of Transaction Receipts that
it will process for Company as indicated on the Company Application as Company’s annual
volume or as otherwise established by Elavon. This limit may be changed by Elavon from time
to time, without prior notice to Company. If Company exceeds the established limit, Elavon
may suspend the processing of Transaction Receipts, and either return all Transaction Receipts
evidencing funds over the cap to Company or hold those deposits in a separate account or
Reserve Account.
d. Chargebacks. Company is fully liable to Elavon and Member for all Transactions returned to
Elavon or Member for whatever reason including all Chargebacks. Company will pay Elavon
and Member for all Chargebacks. Company agrees to accept for Chargeback, and will be liable
to Elavon and Member in the amount of any Transaction for which the Customer or Issuer
disputes the validity of the Transaction for any reason. Company authorizes Elavon and
Member to offset from funds due Company for Transaction activity or to debit the DDA, the
Reserve Account, or any other account held at Member or at another financial institution for the
amount of all Chargebacks including, as applicable, any currency fluctuations. Company will
fully cooperate with Elavon and Member in complying with the Payment Network Regulations
regarding all Chargebacks. Guarantors are personally liable to Elavon and Member for all
Chargebacks.
5. DEMAND DEPOSIT ACCOUNT (DDA).
a. DDA and ACH Authorization. Company will establish and maintain with Member (or with
another ACH participating financial institution acceptable to Member) one or more DDAs to
facilitate payment for Transactions. Company will maintain sufficient funds in the DDA to
accommodate all Transactions contemplated by the Agreement and all Chargebacks, returns,
adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment
payments and other payments due under the Agreement. Company irrevocably authorizes
Elavon, Member, and their respective authorized vendors and agents who provide services
under the Agreement, to initiate ACH debit and credit entries to the DDA, the Reserve Account
or any other account maintained by Company at any institution that is a receiving member of the
ACH network, in order to make payments to or collect payments from Company due under the
Agreement. The foregoing authorizations will remain in effect after termination of the
Agreement until all of Company’s obligations to Elavon and Member have been paid in full.
Company also authorizes Elavon’s or Member’s vendors or agents to debit the DDA for any
fees due to such vendors or agents under the Agreement. Company must obtain prior consent
from Member and Elavon to change the DDA. If Company does not get that consent, Elavon or
Member may immediately and without notice terminate the Agreement and may take any other
action either of them deems necessary in their discretion. Elavon and Member have the right to
rely upon written instructions submitted by Company requesting changes to the DDA. In the
event Company changes the DDA, the ACH debit and credit authorization established hereunder
will apply to the new account and Company shall provide Elavon and Member such information
regarding the new DDA as they deem necessary to effect payments to and from the new DDA.
It may take Elavon up to ten (10) business days after Elavon’s receipt of a written notice from
Company to reflect in its system any change to Company’s DDA. Company may request from
75
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 4
Elavon written confirmation of Elavon’s and Member’s consent to change the DDA. If the DDA
is maintained with Member, Member will deposit all funds evidenced by Transaction Receipts
to the DDA, subject to Section (A)(4) of the TOS. Elavon and Member have the right to delay,
within their discretion, crediting the DDA with funds evidenced by submitted Transaction
Receipts. To the extent required, Company authorizes Member or Elavon to initiate reversal or
adjustment entries and initiate or suspend such entries as may be necessary to grant Company
provisional credit for any entry. Member will make deposits to the DDA pursuant to the
Agreement and the ACH authorization. To the extent required, Company authorizes and
appoints Member to act as its agent to collect Transaction amounts from the Issuer, the
Customer or the Customer’s financial institution. Member, in its sole discretion or at Elavon’s
direction, may grant Company provisional credit for Transaction amounts in the process of
collection, subject to receipt of final payment by Member and Elavon and subject to all
Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment
Networks, Leased Equipment payments and any other payments due under the Agreement.
b. Asserted Errors. It is the responsibility of Company to reconcile the statements regarding
Transaction activity received from Elavon, any Payment Network, and any third party vendors
with the statements Company receives for Company’s DDA. Company must promptly examine
all statements relating to the DDA and immediately notify Elavon and Member in writing of any
errors in the statement Company received from Elavon. Company’s written notice must include:
(i) Company name and account number; (ii) the dollar amount of the asserted error; (iii) a
description of the asserted error; and (iv) an explanation of why Company believes an error
exists and the cause of it, if known. That written notice must be received by Elavon within forty-
five (45) days after the month end date on the statement containing the asserted error. If
Company fails to provide such notice to Elavon within said forty-five (45) days, Elavon and
Member shall not be liable to Company for any errors Company asserts at a later date. Company
may not make any claim against Member or Elavon for any loss or expense relating to any
asserted error for sixty (60) days immediately following Elavon’s receipt of Company’s written
notice. During that sixty (60) day period, Elavon will be entitled to investigate the asserted
error, and Company shall not incur any cost or expense in connection with the asserted error
without notifying Elavon.
c. Depository Institution. Company authorizes its depository institution to grant Elavon and/or
Member access to any and all information or records regarding the DDA. Company authorizes
Elavon and/or Member to direct the depository institution to hold funds in the DDA in an
amount which Elavon and/or Member, in their respective discretion, either individually or
collectively, deem sufficient to fully protect Elavon’s and Member’s rights under the Agreement
or to block or restrict Company’s or others’ access to funds in the DDA (whether or not such
funds are specifically related to any previous deposit for any Transaction Receipt). Company
directs the depository institution to immediately comply with any such direction from Elavon or
Member.
d. Indemnity. Company will indemnify and hold harmless Elavon and Member for any action
they take against the DDA or Reserve Account pursuant to the Agreement. Company will also
indemnify and hold harmless the depository institution at which it maintains its DDA for acting
in accordance with any instruction from Elavon and/or Member regarding the DDA.
6. SECURITY INTERESTS; RESERVE ACCOUNT; RECOUPMENT AND SET-OFF.
a. Security Interests.
i. Security Agreement. The Agreement constitutes a security agreement under the
Uniform Commercial Code. Company grants to Elavon and Member a security interest
in and lien upon (and in Quebec, a hypothec on): (a) all funds at any time in the Reserve
Account or DDA, regardless of the source of such funds, and (b) all funds underlying
76
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 5
present and future Transaction Receipts; and (c) any amount which may be due to
Company under the Agreement, including, without limitation, all rights to receive any
payments or credits under the Agreement (collectively, the “Secured Assets”). Company
agrees to provide other security to Elavon and Member, upon request, to secure its
obligations under the Agreement. These security interests and liens (and hypothecs) will
secure all of Company’s obligations under the Agreement and any other agreements
now existing or later entered into between Company and Elavon and/or Member
including Company’s obligation to pay any amounts due and owing to Member or
Elavon. Elavon and Member may execute this security interest (and hypothecs), without
notice or demand of any kind, by making an immediate withdrawal or by restricting
Company’s access to the Secured Assets.
ii. Perfection. Upon request of Elavon or Member, Company will execute one (1) or more
control agreements or other documents to evidence or perfect this security interest (and
hypothec). Company represents and warrants that no other person or entity has a
security interest (or hypothec) in the Secured Assets. With respect to such security
interests and liens (and hypothecs), Elavon and Member will have all rights afforded
under the Uniform Commercial Code, any other applicable law and in equity. Company
will obtain from Elavon and Member written consent prior to granting a security interest
(or hypothec) of any kind in the Secured Assets to a third party. Company agrees that
this is a contract of recoupment and Elavon and Member are not required to file a
motion for relief from a bankruptcy action automatic stay to realize any of the Secured
Assets. Nevertheless, Company agrees not to contest or object to any motion for relief
from the automatic stay filed by Elavon or Member. Company authorizes and appoints
Elavon as Company’s attorney in fact to sign Company’s name to any control agreement
used for the perfection of any security interest or lien (or hypothec) granted hereunder.
b. Reserve Account.
i. Establishment. Elavon and/or Member may establish a Reserve Account at any time
for the purpose of providing a source of funds to pay Member and Elavon for any and
all amounts owed by Company. The Reserve Account shall be maintained with sums
sufficient to satisfy Company’s current and/or future obligations as determined by
Member or Elavon. Member and Elavon shall have sole control of the Reserve
Account. Member and/or Elavon may, at any time, require that the amount on deposit
in the Reserve Account be increased.
ii. Funding. Member and Elavon may fund the Reserve Account by any one or more of
the following means.
aa. Member and Elavon may require Company to deposit into the Reserve
Account funds in an amount determined by Elavon;
bb. Member and Elavon may debit the DDA in any amount; or
cc. Member and Elavon may deposit into the Reserve Account funds they would
otherwise be obligated to pay Company.
iii. Use of Funds in Reserve Account. Member or Elavon may, without notice to
Company, apply funds in the Reserve Account against any outstanding amounts
Company owes or future amounts Company will owe under the Agreement or any
other agreement between Company and Member or Elavon. Also, Member or Elavon
may debit the Reserve Account to exercise their rights under the Agreement including,
without limitation, their rights of set-off and recoupment to collect any amounts due to
Member or Elavon. Further, Company agrees that Elavon or Member may be required
to send funds in a Reserve Account to a third party in response to a tax levy or other
court order.
77
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 6
iv. Termination of Reserve Account. Funds held in the Reserve Account shall remain in
the Reserve Account until each of the following has occurred: (1) the Agreement has
been terminated; and (2) Company has paid in full all amounts owing or that could
ever be owed under the Agreement, including all Chargebacks, returns, adjustment,
fees, fines, penalties, assessments from the Payment Networks, Leased Equipment
payments and any other payments due under the Agreement. In no event shall
Company be entitled to a return of any funds remaining in the Reserve Account before
two-hundred-seventy (270) days following the effective date of termination of the
Agreement.
c. Recoupment and Set-off. Member and Elavon have the right of recoupment and set-off. This
means that they may offset any outstanding or uncollected amounts owed to them from: (i) any
amounts they would otherwise be obligated to deposit into the DDA; and (ii) any other amounts
they may owe Company under the Agreement or any other agreement. Company acknowledges
that in the event of a Bankruptcy Proceeding, in order for Company to provide adequate
protection under Bankruptcy Code Section 362 or applicable law to Elavon and Member, and in
order to ensure that Elavon and Member do not and are not obliged to advance credit to
Company, Company must create or maintain the Reserve Account as required by Elavon and/or
Member and either of them shall have the right to offset against the Reserve Account for any
and all obligations Company may owe to Elavon and Member, without regard to whether the
obligations relate to Transaction Receipts initiated or created before or after the initiation of the
Bankruptcy Proceeding or the filing of the petition, motion, request for stay or other proceeding
in connection with a Bankruptcy Proceeding.
d. Remedies Cumulative. The rights conferred upon Member and Elavon in this Section are not
intended to be exclusive of each other or of any other rights and remedies of Member and
Elavon under the Agreement, at law or in equity. Rather, each and every right of Member and
Elavon under the Agreement, at law or in equity is cumulative and concurrent and in addition to
every other right.
7. FEES; OTHER AMOUNTS OWED; TAXES.
a. Fees. Company will pay Member and Elavon fees for services, supplies, and equipment in
accordance with the Agreement and any additional application or setup form(s). Such fees will
be calculated and debited from the DDA or the Reserve Account once each day or month for the
previous day’s or month’s activity as applicable, or will be deducted from the funds due
Company under the Agreement. In addition, Company will pay Elavon at its standard rates for
research including, but not limited to, research required to respond to any third party or
government subpoena, levy, or garnishment on Company’s account. Elavon may adjust the fees
in accordance with Section (A)(18)(p) below.
b. Other Amounts Owed. Company will immediately pay Elavon or Member any amount
incurred by Elavon or Member attributable to the Agreement, including, without limitation,
Chargebacks, returns, adjustments, fees, fines, penalties (including all fines and penalties
assessed by the Payment Networks as a result of Company’s Transaction processing),
assessments from the Payment Networks, Leased Equipment payments and any other payments
due under the Agreement. Elavon or Member may offset these amounts from funds otherwise
owed by Elavon or Member to Company or may debit these amounts from Company’s DDA or
Reserve Account by ACH, and in the event such offset or ACH debit does not fully reimburse
Elavon or Member for the amount owed, Company will immediately pay Elavon or Member
such amount. Elavon will charge interest, as allowed by Law, on all uncollected items that are
more than thirty (30) days past due.
78
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 7
c. Taxes. Company is also obligated to pay all taxes and other charges imposed by any
governmental authority on the goods and services provided under the Agreement. If Company is
a tax-exempt entity, Company will provide Elavon and Member with an appropriate certificate
of tax exemption.
8. ACCURACY OF INFORMATION; INDEMNIFICATION; LIMITATION OF LIABILITY.
a. Accuracy of Information. Company represents and warrants to Member and Elavon that all
information provided to Elavon in the Company Application, in the bid process if applicable, or
otherwise in the Agreement is true and complete and properly reflects the business, financial
condition and principal partners, owners, officers, or ownership of Company. Company must
promptly notify Elavon in writing of any changes to such information, including, without
limitation, any additional location or new business at which Company desires to accept Payment
Devices, the identity of principals and/or owners, the form of business organization (i.e., sole
proprietorship, partnership, etc.), type of goods and services provided, and how Transactions are
completed (i.e., by telephone, mail, electronic commerce, or in person at Company’s place of
business). The notice must be received by Elavon at least ten (10) business days prior to the
change. Company will provide any additional information requested by Elavon within a
reasonable time. Elavon has the right to rely upon written instructions submitted by Company to
request changes to Company’s business information. Company may request written
confirmation of Elavon’s consent to the changes to Company’s business information. Company
will defend, indemnify, and hold harmless Member and Elavon for all losses and expenses
incurred by Member or Elavon arising out of any such change, whether or not reported to
Elavon, or Company’s failure to provide requested information. Company will not submit
Transactions for processing to Elavon or Member for any businesses, products, or methods of
selling other than those set forth in the Company Application at the time Company applies for
services without the prior written consent of Elavon. Elavon may immediately terminate the
Agreement upon notification by Company of a change to the information in the Company
Application. Company authorizes Elavon and Member to contact credit reporting agencies and
Company’s creditors to make inquiries and obtain reports regarding Company’s credit standing
upon Elavon’s or Member’s receipt of the Company Application.
b. Indemnification. Company will be liable for and indemnify, defend, and hold harmless Elavon,
Member and their respective employees, officers, directors, and agents against all claims,
including claims made by third parties, losses, damages, liabilities or expenses arising out of
the Agreement and for all reasonable attorneys’ fees and other costs and expenses paid or
incurred by Member and/or Elavon in the enforcement of the Agreement, including those
resulting from any Transaction processed under the Agreement or any breach by Company of
the Agreement and those related to any Bankruptcy Proceeding.
c. Limitation of Liability. Company acknowledges that Elavon’s and Member’s fees for the
Processing Services provided to Company by Elavon and Member are very small in relation to
the funds advanced to Company for Transactions and consequently Elavon’s and Member’s
willingness to provide these services is based on the liability limitations contained in the
Agreement. Therefore, in addition to greater limitations on Elavon’s or Member’s liability that
may be provided elsewhere, any liability of Elavon and Member under the Agreement, whether
to Company or any other party, whatever the basis of the liability, will not exceed, in the
aggregate, an amount equal to the fees paid by Company during the last three (3) months. In no
event will Elavon, Member, or their agents, officers, directors, or employees be liable for
indirect, exemplary, punitive, special, or consequential damages.
d. Performance. Elavon and Member will perform all services in accordance with the Agreement.
Elavon makes no other warranty, express or implied, regarding the services, and nothing
contained in the Agreement will constitute such a warranty. Elavon and Member disclaim all
implied warranties, including those of merchantability and fitness for a particular
79
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 8
purpose. Neither Elavon nor Member shall be liable for any failure or delay in its performance
of the Agreement if such failure or delay arises for reasons beyond the control of Elavon or
Member and without the fault or negligence of Elavon or Member.
9. REPRESENTATIONS AND WARRANTIES. Company represents and warrants to Elavon and
Member as of the time the Agreement is effective, and reaffirm to Elavon and Member each time a
Transaction is effected during the Initial Term or any Renewal Term of the Agreement, the
following:
a. Organization. Company is a corporation, company, limited liability company, unlimited
liability company, limited liability partnership, limited partnership, general partnership, business
trust, association or sole proprietorship validly existing and organized in the United States, or
validly existing and federally organized in Canada or in a province or territory of Canada, as
applicable.
b. Corporate Power. Company and the persons signing the Agreement have the power to execute
and perform the Agreement. Company represents and warrants that the person executing the
Agreement is duly authorized to bind Company and each affiliated entity identified in the
Agreement to all provisions of the Agreement and that such person is authorized to execute any
document and to take any action on behalf of Company which may be required by Elavon, now
or in the future. Further, Company represents and warrants that signing and/or performing in
accordance with the Agreement will not violate any Law, or conflict with any other agreement
to which Company is subject.
c. No Litigation. There is no action, suit, or proceeding pending, or to Company’s knowledge,
threatened which if decided adversely would impair Company’s ability to carry on Company’s
business substantially as now conducted or which would adversely affect Company’s financial
condition or operations. Company has never (i) been placed on the MasterCard MATCHTM
system (formerly known as the Combined Terminated Merchant File), (ii) been named to the
Consortium Merchant Negative File maintained by Discover, or (iii) been placed on or named to
any other negative or terminated merchant file of any other Payment Network, or, if Company
has, Company has disclosed that fact to Elavon in writing.
d. Transactions. All Transactions are bona fide. No Transaction involves the use of a Payment
Device for any purpose other than the purchase of goods or services from Company or a return
or adjustment related to such purchase. Company will not submit unlawful or illegal
Transactions. Company has all power and authority to provide all Customer information,
Cardholder Data and Transaction information that Company provides to Elavon and Member.
No Transaction involves a Customer obtaining cash from Company unless allowed by the
Payment Network Regulations and agreed to in writing with Elavon.
e. Compliance with Laws and Regulations. Company will comply with all Laws and Payment
Network Regulations.
f. Business Use. Company is obtaining and using the Processing Services from Elavon for
business purposes only and to facilitate lawful business Transactions between Company and
Company’s Customers. Company will not submit Transactions for processing to Elavon or
Member for any businesses, materially different products, or methods of selling other than those
set forth in the Company Application without the prior written consent of Elavon. Company also
acknowledges that the DDA into which debits and credits are made is being used for lawful
business purposes only.
g. Responsibility for Actions. Company is responsible for any violations of the Agreement that
result from the actions of or failure to act by Company’s officers, directors, employees, agents,
Service Providers, business invitees, and those of any other Person who, with or without
80
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 9
Company’s consent or cooperation, obtains access to information related to Transactions from
Company or access to systems under Company’s control.
10. AUDIT AND INFORMATION.
a. Audit. Company authorizes Elavon and Member to perform an audit of its business to confirm
compliance with the Agreement. Company will obtain and submit a copy of an audit from a
third party acceptable to Elavon of the financial, physical security, information security, and
operational facets of Company’s business at its expense when requested by Elavon or Member.
Further, Company acknowledges and agrees that the Payment Networks have the right to audit
Company’s business to confirm compliance with the Payment Network Regulations.
b. Information.
i. Authorizations. Company authorizes Elavon and Member to make, from time to time,
any business and personal credit or other inquiries they consider necessary to review
the Company Application or continue to provide services under the Agreement.
Company also authorizes any person or credit reporting agency to compile information
to answer those credit inquiries and to furnish that information to Elavon.
ii. Financial Information. Upon the request of either Elavon or Member, Company will
provide Elavon and Member audited financial statements prepared by an independent
certified public accountant selected by Company. Company further agrees to provide
to Elavon and Member such other information regarding Company’s financial
condition as Elavon and/or Member may request from time to time. Within one-
hundred twenty (120) days after the end of each fiscal year, Company will furnish
Elavon or Member, as requested, a financial statement of profit and loss for the fiscal
year and a balance sheet as of the end of the fiscal year.
iii. Company Information. Company agrees that any Company financial information,
Transaction Data, and other information regarding Company, its principles, affiliates,
or agents that Company or Company principle provides to Elavon or Member on the
Company Application or otherwise obtained by Elavon or Member in connection with
the Agreement may be: (i) used by Elavon, Member, and their respective service
providers, affiliates, agents, and referral partners, (a) in order to provide the Processing
Services and related functions to Company and to respond to any further application
for services, or (b) for administrative purposes and to maintain Company’s account
pursuant to this Agreement; (ii) disclosed and shared for reporting purposes to credit
rating agencies, under the Payment Network Regulations, to Issuers and to the
financial institution where the DDA is maintained; (iii) utilized to enhance or improve
Elavon’s products or services, generally; (iv) used or disclosed in the course of any
actual or potential sale, reorganization or other change to Elavon’s or Member’s
business; (v) collected, used and disclosed as required or permitted by Law (e.g., for
tax reporting or in response to a subpoena); and (vi) retained for such periods of time
as required by Elavon and Member to perform their obligations and exercise their
rights under the Agreement. Elavon may prepare, use, and/or share with third parties,
aggregated, non-personally identifiable information derived from Transaction Data of
all of Elavon’s customers or specific segments of Elavon’s Customers.
c. Customer Identification. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person who opens an account. Accordingly, Company must
provide certain information and identifying documents to allow Elavon and Member to identify
Company.
11. FRAUD MONITORING. Company is solely responsible for monitoring its Transactions and the
actions of its officers, directors, employees, agents, business invitees, third party vendors, including
81
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 10
Service Providers, and those of any other Person who, with or without Company’s consent or
cooperation, obtains access to Company’s Transactions, for fraudulent or other suspicious activity.
Elavon and Member are under no duty to monitor Company’s transactions for fraudulent or other
suspicious activity.
12. BUSINESS CONTINUITY. Company is solely responsible for developing and maintaining a
disaster recovery plan. Company should test the operation of such plan, or parts thereof, on a
periodic basis to ensure its effectiveness in providing disaster recovery capability to Company.
Company is solely responsible for all Transactions and Transaction Receipts until such time as the
Transaction Receipts have been received and validated by Elavon. Company will maintain sufficient
“backup” information and data (e.g., Transaction Receipts or detailed reporting) with respect to
Transactions in order to reconstruct any information or data loss due to any system malfunction.
Neither Elavon nor Member has a duty to recreate lost Transactions.
13. PERSONAL GUARANTY. As a primary inducement to Elavon and Member to enter into the
Agreement and in consideration of the services and accommodations of any kind given or continued
at any time and from time to time by Elavon or Member to or for the benefit of Company, the
designated Guarantor(s), jointly and severally, unconditionally and irrevocably, guarantee the
continuing full and faithful performance by Company of each of its duties and obligations to Elavon
and Member pursuant to the Agreement, as the same may be amended by either of them from time to
time, with or without notice. No act or thing, except full payment and discharge of all of Company’s
duties and obligations to Elavon and Member, which but for this provision could act as a release or
impairment of the liability of the Guarantor(s), shall in any way release, impair, or affect the liability
of the Guarantor(s). The Guarantor(s) waives any and all defenses of Company pertaining to
Company’s duties and obligations to Elavon and Member, any evidence thereof, and any security
therefore, except the defense of discharge by payment. Guarantor(s) understands further that Elavon
and/or Member may proceed directly against Guarantor(s) without first exhausting their respective
remedies against Company or any other person or entity responsible therefore or any security held
by Elavon, Member, or Company. The Guarantor(s) waives: (i) notice of acceptance of this Personal
Guaranty and of the creation and existence of Company’s duties and obligations to Elavon and
Member; (ii) presentment, demand for payment, notice of dishonor, notice of non-payment, and
protest of any instrument evidencing Company’s duties and obligations; (iii) all other demands and
notices to the Guarantor(s) or any other person and all other actions to establish the liability of the
Guarantor(s); and (iv) the right to trial by jury in action in connection with this Personal
Guaranty. This Personal Guaranty will not be discharged or affected by the death of the
Guarantor(s), will bind all heirs, administrators, representatives, and assigns, and may be enforced
by or for the benefit of any successors in interest to Elavon or Member. Guarantor(s) understands
that the inducement to Elavon and Member to enter into the Agreement and give or continue services
and accommodations of any kind to or for the benefit of Company, is consideration for the Personal
Guaranty and that each Personal Guaranty remains in full force and effect even if the Guarantor(s)
receives no additional benefit from the Personal Guaranty.
14. THIRD PARTIES.
a. Products or Services. Company may desire to use a Service Provider to assist Company with
its Transactions. Company shall not utilize any such third parties unless Company has disclosed
such use to Elavon previously in writing, and unless such Service Provider is fully compliant
with all Laws and Payment Network Regulations. Any Service Provider used by Company must
be registered with the Payment Networks prior to the performance of any contracted services on
behalf of Company. Further, as between the parties to the Agreement, Company will be bound
by the acts and omissions of any Service Provider and Company will be responsible for
compliance by such Service Provider with all Laws and Payment Network Regulations.
Company will indemnify and hold harmless Elavon and Member from and against any loss,
82
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 11
cost, or expense incurred in connection with or by reason of Company’s use of any third parties,
including Service Providers. Company’s use of any Service Provider is at Company’s risk.
Neither Elavon nor Member is responsible for any Service Provider or for the products or
services offered by such Service Provider, nor are they responsible for any Transaction until
Elavon receives data for the Transaction in the format required by Elavon. A Service Provider’s
access to or ability to integrate with the products, services, and systems of Elavon may terminate
at any time and Elavon shall have no obligation to advise Company of such termination.
b. Use of POS Devices Provided by Others. In addition to the foregoing, if Company uses a
Service Provider for the purposes of data capture and/or authorization, Company agrees: (i) that
the third party providing such services will be Company’s agent in the delivery of Transactions
to Elavon and Member via a data processing system or network compatible with Elavon’s; and
(ii) to assume full responsibility and liability for any failure of that third party to comply with
applicable Laws and the Payment Network Regulations or the Agreement. Neither Member nor
Elavon will be responsible for any losses or additional fees incurred by Company as a result of
any error by a third party agent or by a malfunction in a third party POS Device. Neither
Elavon nor Member is responsible for any Transaction until Elavon receives data for the
Transaction in the format required by Elavon.
c. Liability for Direct Agreement with Third Party. Elavon and Member have no responsibility
for, and shall have no liability to Company in connection with, any hardware, software or
services Company receives subject to a direct agreement (including any sale, warranty or end-
user license agreement) between Company and a third party, including any Service Provider,
even if Elavon collects fees or other amounts from Company with respect to such hardware,
software or services.
15. TERM AND TERMINATION.
a. Term. Unless terminated as set forth below, the Agreement will remain in effect for a period of
three (3) years (“Initial Term”) following the date of acceptance of the Company Application by
Elavon and Member, which date shall be the date upon which the Agreement becomes effective.
Thereafter, the Agreement will renew for successive two (2) year terms (successive six (6)
month terms with respect to Canada) (“Renewal Term”) unless terminated as set forth below. If
Company processes Transactions beyond the Initial Term or Renewal Term, then the terms of
the Agreement shall govern such Transaction processing.
b. Termination.
i. Company.
aa. The Agreement may be terminated by Company effective at the end of the
Initial Term or any Renewal Term by providing written notice of an intent not
to renew to Elavon at least thirty (30) days prior to the expiration of the then
current term.
bb. The Agreement may be terminated by Company in the event of a material
breach of the terms of the Agreement by Member or Elavon, provided
Company gives Member and Elavon written notice of any alleged breach and
such breach remains uncured for a period of thirty (30) days following receipt
of written notice by the party Company claims to be in breach of the
Agreement.
ii. Elavon or Member.
aa. The Agreement may be terminated by Elavon or Member, in whole or in part,
at any time with or without cause during the Initial Term or any Renewal
Term.
bb. Elavon’s and Member’s rights of termination under the Agreement are
83
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 12
cumulative. A specific right of termination in this Section shall not limit any
other right of Elavon or Member to terminate the Agreement expressed
elsewhere.
iii. Notice of Termination. Notice of termination by Company, Elavon, or Member may
be given orally or in writing, but if given orally, must be confirmed in writing as soon
as practical. Company’s termination request shall be completed on a form available
from Elavon, but at a minimum, must include the name of the Company and Merchant
Identification Number, and must be signed by the principal owner(s) of Company.
Termination shall be effective on the date specified by the oral or written notice;
provided, however Company agrees that closing Company’s account with Elavon may
take up to thirty (30) days following Elavon’s receipt of written notice of termination.
In those limited instances where Company’s account is reinstated by Elavon following
termination by either Company or Elavon in the Initial or any Renewal Term, all of
Company’s obligations under the Agreement are likewise reinstated and will renew for
successive two (2) year Renewal Terms effective on the date of reinstatement.
c. Action Upon Termination.
i. Accounts. All Company’s obligations regarding Transactions processed prior to
termination will survive termination. Funds related to Transactions processed prior to
termination may be placed in a Reserve Account until Company pays all amounts
Company owes Elavon or Member or amounts for which Company is liable under the
Agreement. Company must maintain enough funds in the DDA following termination
to cover all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from
the Payment Networks and other amounts due under the Agreement for a reasonable
time, but in any event, not less than one-hundred-eighty (180) days from termination.
If a Reserve Account is established by Elavon, then any balance remaining after
Chargeback rights have expired and all other amounts owed by Company has been
paid will be disbursed to Company.
ii. Leased Equipment. If Company’s equipment is leased, Company is obligated to
honor the terms and conditions of Section (A)(20) below. If Company’s Leased
Equipment is owned by Elavon, Company must return all equipment owned by Elavon
within ten (10) business days after termination of the Agreement and immediately pay
Elavon any amounts Company owes for such Leased Equipment.
iii. Return to Elavon. All Confidential Information, promotional materials, advertising
displays, emblems, Transaction Receipts, Credit Transaction Receipts, and other forms
supplied to Company and not purchased by Company or consumed in use will remain
the property of Elavon and must be returned to Elavon or destroyed within ten (10)
business days after termination of the Agreement. Company will be fully liable for any
and all loss, cost, and expense suffered or incurred by Elavon arising out of any failure
to return or destroy such materials following termination.
16. COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS; MATCHTM
AND CONSORTIUM MERCHANT NEGATIVE FILE.
a. Compliance with Laws and Payment Network Regulations. Company agrees to comply with
the Payment Network Regulations, including all requirements applicable to obtaining
authorization for ACH debits from a consumer account, and with any policies and procedures
provided by Member or Elavon. The Payment Network Regulations, as further referenced in
Section 3, are incorporated into the Agreement by reference as if they were fully set forth in the
Agreement. Company further agrees to comply with all Laws, including without limitation,
Laws related to: (i) Payment Devices; (ii) electronic funds transfers; (iii) confidential treatment
of information; and (iv) the Fair and Accurate Credit Transactions Act of 2003 (FACTA),
including its requirements relating to the content of Transaction Receipts provided to
84
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 13
Customers. Company will assist Member and Elavon in complying in a complete and timely
manner with all Laws and Payment Network Regulations now or hereafter applicable to any
Transaction or the Agreement. Company will execute and deliver to Member and Elavon all
documents they may from time to time reasonably deem necessary to verify Company’s
compliance with this provision. Company websites that are not in compliance with the Payment
Network Regulations may result in Company’s settlement funding being directed to a Reserve
Account pursuant to Section 6(b).
b. Privacy Laws in the United States (if applicable). In addition to Section (A)(17)(b), Company
must take all commercially reasonable steps to protect the confidentiality of Customer and
Transaction information and shall establish and maintain physical, technical and administrative
safeguards to prevent unauthorized access by third parties to such Customer and Transaction
information and in a manner that complies with applicable Laws, including without limitation
the federal Health Insurance Portability and Accountability Act, the federal Gramm-Leach-
Bliley Act, FACTA or other applicable privacy laws.
c. Privacy Laws in Canada (if applicable). Company represents, covenants and agrees that it is
in compliance with all applicable privacy laws, including without limitation the Personal
Information Protection and Electronic Documents Act (Canada), and that any personal
information of a Customer that may be communicated or disclosed to Elavon under or in
connection with the Agreement or any services to be provided by Elavon to Company has been
obtained in compliance with such laws and that Elavon will not be in breach of any such laws
by receiving and using such information in connection with performing its obligations under or
in connection with the Agreement or any services to be provided by Elavon to Company.
d. MATCHTM and Consortium Merchant Negative File. Company acknowledges that Member
and/or Elavon is required to report Company’s business name and the name of Company’s
principals to the MATCHTM listing maintained by MasterCard and accessed and updated by
Visa, to the Consortium Merchant Negative File maintained by Discover, if applicable, or to any
other negative or terminated merchant file of any other Payment Network, if applicable,
pursuant to the requirements of the Payment Network Regulations. Company specifically
consents to the fulfillment of the obligations related to the listing by Elavon and Member, the
listing itself and Company waives and holds harmless Elavon and Member from all claims and
liabilities Company may have as a result of such reporting.
e. Security Program Compliance. Company must comply with the requirements of the Payment
Card Industry Data Security Standard (PCI DSS) including the Cardholder Information Security
Program (CISP) of Visa, the Site Data Protection Program (SDP) of MasterCard, the Data
Security DISC Program and the PCI DSS regulations of Discover Network, and the security
programs of any other Payment Network regarding which Company accepts a Payment Device,
as applicable, and any modifications to, or replacements of such programs that may occur from
time to time (collectively, “Security Programs”). Company also shall ensure that all Service
Providers and third parties from whom Company procures third party POS Devices comply with
the requirements of the Security Programs. Upon request, Elavon will provide Company with
the respective website links to obtain the current requirements of the Visa, MasterCard, and
Discover Network Security Programs. Company is responsible for Company’s own actions or
inactions, those of Company’s officers, directors, shareholders, employees and agents, including
any Service Provider (collectively, “Company’s Agents”). Company shall indemnify and hold
Elavon and Member harmless from any liability, loss, cost, or expense resulting from the
violation of any of the Security Program requirements by any of Company’s Agents. Should
Company participate in a program with any other Credit Card Association or Issuer, or accept a
Payment Device of any other Payment Network that has a security program in place, Company
must comply therewith and ensure that Company’s officers, directors, shareholders, employees,
and agents, including Service Providers or third party POS Devices, also comply with the
program requirements of such Payment Network.
85
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 14
f. Data Compromise.
i. Notice and Investigation. Company acknowledges and agrees that Cardholder Data and
bank account information obtained by Company in connection with any Transaction is the
property of the financial institution that issued the Payment Device or holds the Customer’s
account. Company must notify Elavon and Member within twenty-four (24) hours (and if
notice is given orally, it must be confirmed in writing within the same twenty-four hour
period), if Company knows or suspects that Cardholder Data, Customer information, or
Transaction information has been accessed or used, including from systems within
Company’s or any Agent’s control, without authorization from Company or Company’s
Agents (a “Data Incident”). The notice must include: (a) a detailed written statement about
the Data Incident including the contributing circumstances; (b) the form, number and range
of compromised account information; (c) specific account numbers compromised; and (d)
details about the ensuing investigation and Company’s security personnel who may be
contacted in connection with the Data Incident. Company must fully cooperate with the
Payment Networks, Elavon and Member in the forensic investigation of the Data Incident.
Within seventy-two (72) hours of becoming aware of the Data Incident, Company must
engage the services of a data security firm acceptable to the Payment Networks and/or to
Elavon and Member to assess the vulnerability of the compromised data and related
systems. Company must provide weekly written status reports to Elavon and Member until
the forensic audit is complete. Company must promptly furnish updated lists of potential or
known compromised account numbers and other documentation or information that the
Payment Networks and/or Elavon and Member may request. In addition, Company must
provide all audit reports to Elavon and Member, and such audits must be completed to the
satisfaction of the Payment Networks and/or of Elavon and Member. If Company fails to
supply the forensic audits or other information required by the Payment Networks and/or by
Elavon and Member, Company will allow Elavon or Member to perform or have performed
such audits at Company’s expense.
ii. Preservation of Records. In the event of a Data Incident, Company must take immediate
steps to preserve all business records, logs and electronic evidence relating to the Data
Incident. Company shall cooperate with Elavon and Member to rectify, correct and resolve
any issues that may result from the Data Incident, including providing Elavon and Member
with (and obtaining any necessary waivers for) all relevant information to verify
Company’s ability to prevent future data incidents in a manner consistent with the
Agreement.
iii. Liability for Data Incident. Without waiving any of Elavon’s and Member’s rights and
remedies, Company is liable for all fraudulent transactions related to any Data Incident and
all costs Elavon or Member incur as a result of such Data Incident, including any fees,
fines, penalties, assessments or other amounts levied or collected by the Payment Networks,
claims from third parties, all costs related to the notification of Cardholders or Customers
and cancellation, re-issuance of Payment Devices (including underlying accounts), forensic
investigation, and PCI DSS review for a report of compliance.
iv. Data Breach Reimbursement. Company may be eligible to receive reimbursement or
setoff from amounts owed to Elavon for: (a) any sums reasonably required to conduct an
independent security audit of Company to identify the source of the Data Incident, and (b)
any fines and assessments levied or collected by the Payment Networks in connection with
a Data Incident (collectively, “Data Breach Reimbursement”). In order to be eligible to
receive Data Breach Reimbursement, Company must: (x) be enrolled in Elavon’s PCI
Compliance Program and (y) be classified as either a Level 3 or Level 4 Company by the
Payment Networks. If Company is eligible for Data Breach Reimbursement, except as
otherwise provided in the Agreement, the maximum amount of Data Breach
Reimbursement available to Company is $20,000.
86
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 15
g. Office of Foreign Assets Control Compliance. Elavon and Member are entities governed by
the Laws of the United States of America and as such, neither Elavon nor Member may provide
any products or services to Company or its Customers that contravene the Laws of the United
States of America, including, without limitation, the Laws promulgated by the United States
Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or any successor
thereto.
17. USE OF TRADEMARKS; CONFIDENTIALITY; PASSWORDS.
a. Use of Trademarks. Company will prominently display the promotional materials provided by
Elavon in Company’s place of business as may be required or requested by the Payment
Networks. Company’s use of Visa, MasterCard, and Discover Network marks, as well as marks
of other Payment Networks, will fully comply with the Payment Network Regulations.
Company’s right to use all such marks will terminate upon termination of the Agreement or
upon notice by a Payment Network to discontinue such use. Company’s use of promotional
materials, provided by Visa, MasterCard, Discover Network, and/or other Payment Networks
will not indicate, directly or indirectly, that Visa, MasterCard, Discover Network, or such other
Payment Networks endorse any goods or services other than their own and Company may not
refer to Visa, MasterCard, Discover Network, or any other Payment Networks in stating
eligibility for Company’s products or services.
b. Confidentiality.
i. Customer and Transaction Information. Company shall, at all times protect the
confidentiality of Customer and Transaction information in accordance with all applicable
Laws and Payment Network Regulations. Company will not disclose Customer or
Transaction information to any third party, except to an agent of Company approved by
Elavon that is assisting in completing a Transaction, or as required by Laws or Payment
Network Regulations. Company must maintain all systems and media containing
Customer and Transaction information in a secure manner to prevent access by or
disclosure to anyone other than Company’s authorized personnel. Company must
maintain Customer and Transaction information for such time periods as may be required
by Laws and the Payment Network Regulations and thereafter destroy in a manner that
will render the data unreadable all such media that Company no longer deems necessary
or appropriate to maintain. Further, Company must take all steps reasonably necessary to
ensure that Customer and Transaction information is not disclosed or otherwise misused.
Company may not retain or store magnetic stripe or CVV2/CVC2/CID data after
authorization for any purpose, including record keeping or additional authorization
processing. After authorization, Company may only retain the Customer account number,
name, and Card expiration date if Company has a reasonable business purpose to retain
such information and is otherwise in compliance with the Agreement. Company may not
print on any Transaction Receipt or other document that is given to the Customer,
retained by Company, or transferred to a third party, the entire contents of the magnetic
stripe or the CVV2/CVC2/CID data elements. In accordance with Section (A)(16)(e),
Company shall immediately notify Elavon if Company knows or suspects that any
Customer or Transaction information has been accessed by unauthorized persons or has
been used for any purpose not permitted herein whether such access or use occurred at: (i)
Company; (ii) a Service Provider; (iii) Elavon or Member; or (iv) elsewhere.
ii. Bankruptcy. In the event of failure or other suspension of Company’s business
operations, including bankruptcy or insolvency, Company must not sell, transfer, or
disclose any materials that contain Customer or Transaction information to third parties,
and Company must:
87
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 16
aa. Return this information to Elavon; or
bb. Provide acceptable proof of destruction of this information to the Elavon.
iii. Elavon or Member Confidential Information. Company agrees to protect Elavon’s and
Member’s Confidential Information from unauthorized disclosure, publication, or
dissemination with the same standard of care and discretion it employs with similar
information of its own, but in no event less than reasonable care, and shall not use, reproduce,
distribute, disclose, or otherwise disseminate Elavon’s or Member’s Confidential Information,
except in connection with the performance of its obligations under this Agreement. The
obligations of non-disclosure provided hereunder shall continue during the term of the
Agreement and (i) with respect to Confidential Information that does not constitute a trade
secret, for a period of three (3) years thereafter and (ii) with respect to Confidential Information
that rises to the level of a trade secret under applicable law, for such period of time thereafter as
the information shall retain its status as a trade secret under applicable law, and no less than
three (3) years thereafter.
c. Passwords. If Company receives a password from Elavon to access any of Elavon’s databases
or services Company will: (i) keep the password confidential; (ii) not allow any other entity or
person to use the password or gain access to Elavon’s databases or services; (iii) be liable for all
action taken by any user of the password; and (iv) promptly notify Elavon if Company believes
the Elavon’s databases or services or Company’s information has been compromised by use of
the password. If Company receives passwords from a third party, Company must protect such
passwords in the manner required by such third party and indemnify, defend, and hold Elavon
and Member harmless from any losses, costs, or expenses that arise from Company’s use or
misuse of such third party passwords.
d. Proprietary Interest. Company has no interest whatsoever, including, without limitation,
copyright interests, franchise interests, license interests, patent rights, property rights, or other
interest in any services, software, or hardware provided by Elavon. Nothing in the Agreement
shall be construed as granting Company any patent rights or patent license in any patent which
Elavon may obtain in respect to Elavon’s services, software, or equipment. Company will make
no attempt to duplicate or otherwise ascertain the components, circuit diagrams, logic diagrams,
flow charts, source and object code, schematics or operation of, or otherwise attempt to reverse
engineer any of Elavon’s services, equipment, or software.
18. MISCELLANEOUS PROVISIONS.
a. Entire Agreement. The Agreement (including all attachments, exhibits, addenda and other
documents incorporated by reference into the Agreement, attachments, exhibits or addenda),
Payment Network Regulations, and any amendment or supplement to either, constitutes the
entire agreement between the parties, and all prior or other representations, written or oral, are
merged in and superseded by the Agreement; provided, however the Agreement shall not
supersede any Personal Guaranty signed by a Guarantor, which Personal Guaranty shall be
deemed to remain an agreement separate and distinct from the Agreement. In the event of a
conflict between the documents comprising the Agreement, excluding any Personal Guaranty,
the following order of priority will apply: (i) any amendment to the Agreement; (ii) the TOS;
(iii) the Payment Network Regulations; (iv) the Company Application; (v) any Company
Agreement or Company Processing Agreement; (vi) the Operating Guide; and (vii) any other
guides or manuals provided to Company from time to time.
b. Governing Law in the United States (if applicable). The Agreement will be governed by and
construed in accordance with the Laws of the State of Georgia with respect to Transactions
occurring in the United States, except that Section (A)(18)(g) shall be governed by the Federal
Arbitration Act. The parties agree that all performances and Transactions under the Agreement
will be deemed to have occurred in the State of Georgia and that Company’s entry into and
88
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 17
performance of the Agreement will be deemed to be the transaction of business within the State
of Georgia. Any challenge to the enforceability of the agreement to arbitrate contained in
Section (A)(18)(g) of the Agreement, on any ground, shall be brought in either the Superior
Court of Fulton County, Georgia or in the United States District Court for the Northern District
of Georgia, and in no other court, and each of the parties to the Agreement consents to the
exercise of personal jurisdiction by these courts and waives all objections based on a lack of
personal jurisdiction, venue or the inconvenience of the forum. Company, hereby waives any
and all right to trial by jury in any action or proceeding relating to the Agreement. Company
represents that this waiver is knowingly, willingly and voluntarily given.
c. Jurisdiction and Venue; Governing Law in Canada (if applicable). All matters arising out of
or related to the Agreement will be governed by and construed in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario
with respect to Transactions occurring in Canada, except for the hypothec created pursuant to
Section (A)(6)(a)(i) (the “Québec Hypothec”) which will be governed by and construed in
accordance with the laws of the Province of Québec and the federal laws of Canada applicable
in the Province of Québec. The parties agree that all performances and Transactions under the
Agreement will be deemed to have occurred in the Province of Ontario and that Company’s
entry into and performance of the Agreement will be deemed to be the transaction of business
within the Province of Ontario. Any action or proceeding relating to or arising from the
Agreement (other than collection actions by Elavon or Member relating to amounts owed by
Company under the Agreement) must be brought, held, or otherwise occur exclusively in
Toronto, Canada, and the parties hereby attorn to the exclusive jurisdiction of the courts of
Ontario (or of the courts of Québec with respect to the Québec Hypothec). Company, Member
and Elavon hereby jointly and severally waive any and all right to trial by jury in any action or
proceeding relating to the Agreement. Company, Member and Elavon each represents to the
other that this waiver is knowingly, willingly and voluntarily given.
d. Exclusivity. During the Initial Term and any Renewal Term of the Agreement, Company will
not enter into an agreement with any other entity that provides processing services similar to
those provided by Elavon and Member as contemplated by the Agreement without Elavon’s
written consent.
e. Construction. Any alteration or strikeover in the text of the Agreement will have no binding
effect and will not be deemed to amend the Agreement. The headings used in the TOS are
inserted for convenience only and will not affect the interpretation of any provision. The
language used will be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any party.
f. Assignability. The Agreement may be assigned by Member or Elavon, but may not be assigned
by Company, directly or by operation of law, without the prior written consent of Elavon. If
Company, nevertheless, assigns the Agreement without Elavon’s consent, the Agreement will
be binding on the assignee as well as Company. If Company sells its business and the new
owners incur Chargebacks, the original owner(s) and all original Guarantors will be held
personally liable for all Chargebacks and any other liabilities of the new owners.
g. Arbitration. All claims or controversies, or other matters in question, between the parties
arising out of or related to the Agreement or the relationship between the parties that are not
otherwise settled by agreement of parties will be submitted to and decided by arbitration held in
Atlanta, Georgia in accordance with the rules of the American Arbitration Association as
modified by the Agreement. The arbitration proceeding shall be conducted before one (1)
neutral arbitrator, who shall be a member of the bar of the State of Georgia, actively engaged in
the practice of law for at least ten (10) years. The arbitrator will have the authority to award any
remedy or relief that a court in Georgia could order or grant, including, without limitation,
specific performance, issuance of an injunction or imposition of sanctions for abuse or
frustration of the arbitration process. The arbitrator shall have no authority to decide claims on a
class action basis. An arbitration can only decide our or Company’s claim and may not
89
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 18
consolidate or join the claims of other persons who may have similar claims. Company may not
assert a claim in arbitration on behalf of any third party or represent any class of claimants in an
arbitration brought pursuant to the Agreement. The parties agree that anything communicated,
exchanged, said, done, or occurring in the course of the arbitration, including any private caucus
between the arbitrator and any party before or after any joint arbitration session, will be kept
confidential. The parties agree that the underlying agreement between the parties involves
interstate commerce and that, notwithstanding the choice of law provision in Section (A)(18)(b),
any arbitration shall be governed by the Federal Arbitration Act.
h. Notices. Any written notice to Company under the Agreement will be deemed received upon the
earlier of: (i) actual receipt; or (ii) five (5) business days after being deposited in the United
States mail, or with a nationally recognized overnight carrier, and addressed to the last address
shown on the records of Elavon. Any written notice to Elavon, shall be sent by U.S. mail or a
nationally recognized overnight carrier to: 7300 Chapman Highway, Knoxville, TN 37920, and
shall be deemed received only upon actual receipt.
i. Bankruptcy in the United States (if applicable). Company will immediately notify Elavon of
any Bankruptcy Proceeding, receivership, insolvency, or similar action or proceeding initiated
by or against Company or any of its principals. Company will include Elavon on the list and
matrix of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the
time of filing. Failure to do so will be cause for immediate termination of the Agreement and
shall allow the pursuit of any other action available to Elavon under applicable Payment
Network Regulations or Laws. Company acknowledges that the Agreement constitutes a
contract to extend credit or other financial accommodations to, or for the benefit of Company,
and, as such, cannot be assumed or assigned in the event of Company’s bankruptcy. Such
financial accommodations include, but may not be limited to, the incurrence by Elavon from
time to time of credit risk associated with funds transfers and Elavon’s compliance with
Payment Network Regulations relating to Chargebacks. Company further acknowledge that
such financial accommodations constitute an integral part of the Agreement.
j. Bankruptcy in Canada (if applicable). Company will immediately notify Elavon of any
Bankruptcy Proceeding, receivership, insolvency, or similar action or proceeding initiated by or
against Company or any of its principals. Company will include Elavon on the list and matrix of
creditors as filed with any bankruptcy, commercial or civil court, whether or not a claim may
exist at the time of filing. Failure to do so will be cause for immediate termination of the
Agreement and shall allow the pursuit of any other action available to Elavon under applicable
Payment Network Regulations or Laws. Company agrees that the Agreement is a contract for
the advance of credit to Company within the meaning of Section 11.01(b) of the Companies'
Creditors Arrangement Act (Canada) and within the meaning of Section 65.1(4)(b) of the
Bankruptcy and Insolvency Act (Canada) and cannot be assigned by Company in the event of a
Bankruptcy Proceeding relating to Company. Company hereby acknowledges but that for the
agreement in the immediately preceding sentence, Member and Elavon would not have entered
into the Agreement.
k. Attorneys’ Fees. Company will be liable for and will indemnify and reimburse Member and
Elavon for all reasonable attorneys’ fees and other costs and expenses paid or incurred by
Member or Elavon: (i) in the enforcement of the Agreement; (ii) in collecting any amounts due
from Company to Member or Elavon; (iii) resulting from any breach by Company of the
Agreement; or (iv) in defending against any claim, proceeding, or cause of action brought
against Elavon or Member arising out of Company’s obligations under this Agreement.
l. Customer Contact. Company authorizes Member and Elavon to contact its Customers or their
Issuer if Member or Elavon determines that such contact is necessary to obtain information
about any Transaction between Company and a Customer.
m. Telephone Recording. Company authorizes Elavon to monitor and record telephone
conversations at any time without further notice to the parties to such conversations. The
90
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 19
decision to record any conversation shall be solely in Elavon’s discretion.
n. Information Sharing. Company understands and agrees that Elavon may disclose any
information gathered by Elavon to (i) Elavon’s “affiliates” (i.e., companies related to Elavon by
common control or ownership) that offer financial products or services, including those
identified in the Agreement and to Elavon’s administrative or service units that perform such
functions; (ii) to non-affiliated companies to assist Elavon in providing the products and
services Company has requested; (iii) to credit rating agencies; and (iv) as required by the
Payment Network Regulations or the Laws (e.g., for tax reporting purposes or in response to a
subpoena).
o. Communication with Company. Company agrees that Elavon and Member may provide
Company with information about their services including, without limitation, information about
new products and/or services by telephone, electronic mail, and/or facsimile. By providing
Elavon with a telephone number for a cellular phone or other wireless device, including a
number that Company later converts to a cellular number, Company is expressly consenting to
receiving communications — including but not limited to prerecorded or artificial voice
message calls, text messages, and calls made by an automatic telephone dialing system—from
Elavon and its affiliates and agents at that number. This express consent applies to each such
telephone number that Company provide to Elavon now or in the future and permits such calls
for non-marketing purposes. Calls and messages may incur access fees from Company’s cellular
provider.
p. Amendments. Member and Elavon may propose amendments or additions to the Agreement.
Member or Elavon will inform Company of a proposed change in a periodic statement or other
notice. Company will be deemed to have agreed to the change if Company continues to present
Transactions to Member and Elavon after thirty (30) days following the issuance of the notice.
Notwithstanding any limitations set forth in the previous sentence, changes to fees authorized by
the Agreement will be effective upon notice to Company, unless a later effective date is
provided. Further, Elavon is entitled to pass through to Company any fee increases imposed
upon Elavon by Visa, MasterCard, Discover Network, any other Payment Network, and any
other third party including telecommunications vendors.
q. Severability and Waiver. If any provision of the Agreement is found to be invalid, illegal or
otherwise unenforceable by a court of competent jurisdiction, the validity, legality and
enforceability of the remaining provisions of the Agreement shall not in any way be affected or
impaired thereby if the essential terms and conditions of the Agreement for each party remain
valid, legal and enforceable. Neither the failure, the delay by Elavon or Member to exercise,
nor the partial exercise of any right under the Agreement will operate as a waiver or estoppel of
such right, nor shall such amend the Agreement. All waivers requested by Company must be
signed by Elavon.
r. Independent Contractors. Elavon, Member, and Company will be deemed independent
contractors and no one will be considered an agent, joint venturer, or partner of the other, unless
and to the extent otherwise specifically provided herein. The Agreement has been entered into
solely for the benefit of the parties hereto and is not intended to create an interest in any third
party.
s. Survival. All of Company’s obligations to Elavon and Member shall survive termination of the
Agreement, including, without limitation, Sections (A)(4)(a)-(d), (A)(5)(a)-(d), (A)(6)(a)-(d),
(A)(7)(a)-(c), (A)(8)(a)-(d), (A)(9)(g), (A)(13), (A)(14), (A)(15), (A)(17)(a)-(d), (A)(18)(b),
(A)(18)(g), and (A)(18)(k) of the TOS.
t. Counterparts; Facsimile Signatures; Delivery. The Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which, taken together, shall
constitute one and the same agreement. Delivery of the various documents and instruments
comprising the Agreement may be accomplished by a facsimile transmission, and such a signed
91
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 20
facsimile or copy shall constitute a signed original.
u. Force Majeure. None of the parties hereto shall be considered in default in performance of its
obligations to the extent such performance is delayed by force majeure affecting the party’s
ability to so perform. Force majeure shall include, but not be limited to, hostilities, restraint of
rulers or peoples, revolution, civil commotion or riots, strike, lockout, epidemic, accident, fire,
flood, earthquake, windstorm, explosion, lack of or failure of telecommunication facilities,
regulation or ordinance, demand or requirement of any government or governmental agency, or
any court, tribunal or arbitrator(s), having or claiming to have jurisdiction over the subject
matter of the Agreement or over the parties hereto, or any act of God or any act of government
or any cause whether of the same or different nature existing now or in the future which is
beyond the reasonable control of the parties hereto.
v. Expenses. Except as otherwise specifically provided in the Agreement, each party shall pay its
own costs and expenses in connection with the Agreement and the transactions contemplated
hereby, including all attorneys’ fees, accounting fees and other expenses.
w. No Third Party Beneficiaries. No provisions of the Agreement shall be construed to confer
any rights or benefits on any Person not a party to the Agreement or a permitted assignee or
successor of a party to the Agreement, unless such rights or benefits are expressly extended to
third parties.
19. PROVISIONS APPLICABLE TO COMPANY’S ACCEPTANCE OF TRANSACTIONS IN
CANADA
a. Pre-Authorized Debits (PADs). Company authorizes Member, Elavon, and their respective
vendors and agents to initiate debit and credit entries to the DDA, the Reserve Account, or any
other account maintained by Company at any institution that is a member of the CPA, all in
accordance with the Agreement. Company agrees that any withdrawal by Member, Elavon and
their respective vendors and agents in accordance with the Agreement are PADs for business
purposes, as defined under Rule H1 of the CPA. Company hereby waives the right to receive
advance notice from Member, Elavon and their respective vendors and agents of any and
all such debits. This authorization will remain in effect after termination of the Agreement and
until all of Company’s obligations to Elavon and Member have been paid in full. If Company
changes the DDA, this PAD authorization will apply to the new account and Company shall
provide Elavon and Member in writing such information regarding the new DDA as they deem
necessary. It may take Elavon up to ten (10) business days after Elavon’s receipt of a written
notice from Company to reflect in its system any change to Company’s DDA. If Company
changes the DDA, Company agrees that it is responsible for all costs incurred by Member
and/or Elavon in connection with Company’s decision to change the DDA. Company may
revoke the PAD authorization upon thirty (30) days’ prior written notice to Elavon, but any such
revocation shall constitute a material breach of the Agreement. Company may obtain a sample
cancellation form, as well as further information on Company’s right to cancel a PAD
authorization by contacting Company’s financial institution or by visiting www.cdnpay.ca.
Company has certain recourse rights if any debit does not comply with the Agreement. For
example, Company has the right to receive reimbursement for any debit that is not authorized or
is not consistent with this PAD Agreement. To obtain more information on Company’s
recourse rights, Company may contact its financial institution or visit www.cdnpay.ca.
b. Amendments. This Section applies to companies in Canada in lieu of Section (A)(18)(p) above.
Member and Elavon may propose amendments or additions to the Agreement. Member or
Elavon will inform Company of a proposed change in a periodic statement or other notice.
Company will be deemed to have agreed to the change if Company continues to present
Transactions to Member and Elavon after thirty (30) days following the issuance of the notice.
Notwithstanding the previous sentence, changes to fees authorized by the Agreement will be
92
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 21
effective upon notice to Company, unless a later effective date is provided; provided, that, with
respect to Credit Card and Debit Card Transactions, changes to fees or the introduction of new
fees authorized by the Agreement will be effective upon ninety (90) days’ notice to Company,
unless a later effective date is provided. Further, Elavon is entitled to pass through to Company
any fee increases imposed upon Elavon by Visa, MasterCard, Discover Network, any other
Payment Network, and any other third party including telecommunications vendors; provided,
that, with respect to Credit Card and Debit Card Transactions, any such fee increases will be
effective upon ninety (90) days’ notice to Company.
c. Termination. In addition to Company’s other termination rights in the Agreement, the
Agreement may be terminated by Company without penalty in the event that Elavon or Member
notifies Company of a fee increase or the introduction of a new fee; provided that Company’s
may not terminate the Agreement in connection with new fees or fee increases made in
accordance with pre-determined fee schedules. Company must notify Elavon and Member of its
intent to terminate the Agreement within ninety (90) days of receiving notice of the new fee or
fee increases from Elavon or Member.
d. Personal Guaranty. As a primary inducement to Elavon and Member to enter into the
Agreement and in consideration of the services and accommodations of any kind given or
continued at any time and from time to time by Elavon or Member to or for the benefit of
Company, the designated Guarantor(s), jointly and severally, and in Quebec solidarily,
unconditionally and irrevocably, guarantee the continuing full and faithful payment and
performance by Company of all duties, debts, liabilities and obligations of Company to Elavon
or Member, whether present or future, direct or indirect, absolute or contingent, matured or not,
at any time owing or remaining unpaid by Company to Elavon or Member in any currency, and
wherever incurred, and all interest, fees, commissions and legal and other costs, charges and
expenses owing or remaining unpaid by Company to Elavon or Member in any currency
pursuant to the Agreement, as the same may be amended by either of them from time to time,
with or without notice (collectively, the “Obligations”). The Guarantor(s) also unconditionally
agrees that, if Company does not unconditionally and irrevocably pay any Obligations when due
and those Obligations are not recoverable from the Guarantor(s) for any reason under the
guarantee set forth above, the Guarantor(s) shall indemnify Elavon and Member immediately on
demand against any cost, loss, damage, expense or liability suffered by Elavon or Member as a
result of Company’s failure to do so. The liability of the Guarantor(s) hereunder is unlimited.
No act or thing, except the indefeasible and full payment and discharge in cash of all of the
Obligations, which but for this provision could act as a release or impairment of the liability of
the Guarantor(s), shall in any way release, impair, or affect the liability of the Guarantor(s). The
Guarantor(s) waives any and all defenses of Company pertaining to the Obligations, any
evidence thereof, and any security therefore, except the defense of discharge of the Obligations
by full and indefeasible payment in cash. Guarantor’s(s’) liability to pay or perform the
Obligations shall arise immediately after demand has been made in writing on Guarantor(s).
Guarantor(s) understands further that Elavon and/or Member may proceed directly against
Guarantor(s) without first exhausting their respective remedies against Company or any other
person or entity responsible therefore or any security held by Elavon, Member, or Company.
The Guarantor(s) waives: (i) notice of acceptance of this Personal Guarantee and of the creation
and existence of the Obligations; (ii) presentment, demand for payment, notice of dishonor,
notice of non-payment, and protest of any instrument evidencing the Obligations; (iii) all other
demands and notices to the Guarantor(s) or any other person and all other actions to establish
the liability of the Guarantor(s); (iv) without limiting in any way any other waivers of defenses
set out herein, any and all defenses available at equity or common law to the fullest extent
permitted under applicable law; and (v) the right to trial by jury in action in connection with
this Personal Guarantee. Guarantor(s) agrees that this is a continuing guarantee and that
Guarantor’s(s’) liability under this Personal Guarantee will not be discharged, affected or
released by: (a) any variation, renewal, extension or replacement of the Agreement, other
agreements or any security (including any other guarantees) held by Elavon or Member; (b) any
extension of time or other indulgence given to Company or others under the Agreement or any
93
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 22
security; (c) any delay or refusal by Elavon to require or enforce payment of the Obligations or
any security; (d) the taking, non-perfecting, or giving up of any security or by any dealings with
Company or others respecting the Obligations, the Agreement or any security; (e) the death or
legal incapacity of the Guarantor(s) or the dissolution, amalgamation, other fundamental
change, death or legal incapacity, as the case may be, of Company; or (f) any event which
results in Company not being under a legal obligation to make any payment or perform any
obligation under the Agreement. Guarantor(s) renounces the benefit of discussion and division.
This Personal Guarantee will bind all heirs, administrators, estate trustees, representatives,
permitted successors, and assigns of Guarantor(s), and may be enforced by or for the benefit of
any successors in interest to Elavon or Member. Guarantor(s) understands that the inducement
to Elavon and Member to enter into the Agreement and give or continue services and
accommodations of any kind to or for the benefit of Company, is consideration for the Personal
Guarantee and that each Personal Guarantee remains in full force and effect even if the
Guarantor(s) receives no additional benefit from the Personal Guarantee. Guarantor hereby
authorizes any credit reporting agency or bureau to furnish Elavon and Member upon
request with a credit bureau report that relates to the Guarantor. To the extent that any
limitation period applies to any claim for payment of obligations or remedy for enforcement of
obligations under this Personal Guarantee, each Guarantor agrees that: (a) any limitation period
is expressly excluded and waived entirely if permitted by applicable law; (b) if a complete
exclusion and waiver of any limitation period is not permitted by applicable law, any limitation
period is extended to the maximum length permitted by applicable law; (c) any limitation period
applying to this Personal Guarantee expressed to be payable on demand shall not begin before
an express demand for payment of the relevant obligations is made in writing by Elavon or
Member to the Guarantor; (d) any applicable limitation period shall begin afresh upon any
payment or other acknowledgment by the Guarantor of its obligations; and (e) each of this
Personal Guarantee and the Agreement is a "business agreement" as defined in the Limitations
Act, 2002 (Ontario) if that Act applies to it. This Personal Guarantee has been negotiated by the
Guarantor or reviewed by the Guarantor with the benefit of independent legal counsel and any
rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not apply to the construction or interpretation of this Personal Guarantee.
e. Language. The parties hereby acknowledge that they have required the Agreement and all
related documents to be drawn up in the English language. Les parties reconnaissent avoir
demandé que le présent contrat ainsi que tous les documents qui s’y rattachent soient rédigés en
langue anglaise.
f. Equipment Leasing in Canada. If Lessee has elected to lease any Leased Equipment from
Lessor, the terms and conditions set forth in Sections (A)(19)(g) through (w) below apply in lieu
of Section (A)(20) below.
g. Non-Cancellable Lease. This lease cannot be cancelled by Lessee during the term hereof.
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Leased Equipment on
terms and conditions set forth herein. The parties agree that the lease of the Leased Equipment
in the lease is, for all purposes, a financial lease under a financial lease agreement (as such terms
are used in the Bank Act (Canada) and the regulations thereunder). Lessee acknowledges
acceptance and receipt of the Leased Equipment and certify that the Leased Equipment shall be
used for business purposes only. Lessee hereby authorizes any credit reporting agency or
bureau to furnish to Lessor upon Lessor’s request a credit bureau report that relates to
Lessee.
h. No Warranties by Lessor. Lessor has made and makes no representations or warranties of any
kind or nature, directly or indirectly, expressed or implied, as to any matter whatsoever,
including the suitability of the Leased Equipment, its durability, its condition, and/or its quality.
Lessee leases the Leased Equipment “as-is.” Lessor disclaims any warranty of merchantability
or fitness for use or purpose whether arising by operation of law or otherwise. Lessor shall not
be liable to Lessee or others for any loss, damage or expense of any kind or nature caused
directly or indirectly by any Leased Equipment however arising, or the use or maintenance
94
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 23
thereof or the failure of operation thereof, or the repairs, service or adjustment thereto. No
representation or warranty as to the Leased Equipment or any other matter by the supplier of the
Leased Equipment (the “Vendor”), the manufacturer or others shall be binding on Lessor nor
shall the breach of such relieve Lessee of, or in any way affect, any of Lessee’s obligations to
Lessor herein. If the Leased Equipment is not satisfactory for any reason, Lessee shall make any
claim on account thereof solely against the Vendor and/or manufacturer and Lessee shall
nevertheless perform all of Lessee’s obligations under the lease. Lessee will not assert any claim
whatsoever against Lessor for any loss whatsoever including without limitation any loss of
anticipatory profits or any other indirect, special, or consequential damages. Lessor makes no
warranty as to the treatment of the lease for accounting or tax purposes. Neither Vendor nor any
agent of Vendor is an agent of Lessor or is authorized to waive or alter any term or condition of
the lease.
i. Ordering Leased Equipment; Lessor’s Right to Terminate. Lessee has selected the Leased
Equipment and the Vendor and requested that Lessor purchase the Leased Equipment from the
Vendor and arrange for delivery to Lessee at Lessee’s expense. If within forty-five (45) days
from the date Lessor orders the Leased Equipment, it has not been delivered, installed and
accepted by Lessee in form satisfactory to Lessor, Lessor may on ten (10) days written notice to
Lessee terminate the lease and Lessor’s obligations to Lessee.
j. Term and Payments. The sum of all periodic monthly installment payments indicated herein or
on any application shall constitute the aggregate payments under the lease. The term of the lease
shall commence as of the date that the lease is accepted by Lessor (the “Commencement Date”),
and shall continue until all of Lessee’s obligations under the lease have been fully performed.
The installment payments shall be payable monthly in advance, the first payment being due on
the Commencement Date, or such later date as Lessor designates in writing, and subsequent
payments shall be due on the same day of each successive month thereafter until all of the
balance of the payments and any additional payments or expenses payable by Lessee under the
lease have been paid in full. All payments shall be made to Lessor by pre-authorized debit as
contemplated herein or at the address set forth herein or such other address as Lessor may
designate in writing. Lessee hereby authorizes Lessor and its agents to withdraw without
advance notice to Lessee, which notice Lessee waives, any amounts, including without
limitation any and all taxes now due or imposed, owed by Lessee in conjunction with the lease,
by initiating periodic debit entries to the DDA all in accordance with and subject to the terms of
Section (A)(19)(a) above. Upon a Default (as defined below), Lessee authorizes debit of the
DDA for the full amount due under the lease. Lessee agrees that any withdrawals authorized
above are pre-authorized debits for business purposes, as defined under Rule H1 of the CPA.
Lessee represents, warrants and guarantees that all persons whose signatures are required to sign
on the DDA have signed the lease and that the DDA is a business purpose account. By
providing and delivering this authorization to Lessor, this constitutes delivery to the financial
institution that maintains the DDA. A lease payment (whether paid by debit or other means)
that is not honored by Lessee’s financial institution for any reason will be subject to a returned
item service fee in the amount of $20 payable by Lessee to Lessor, the amount of which may be
debited from the DDA. Should it be necessary to switch to statement billing from pre-authorized
debits, Lessor is authorized to add a $10.00 per month service charge to the monthly payment
amount as reimbursement for the added service and processing expenses. Lessee’s obligation to
make all payments hereunder shall be absolute and unconditional and is not subject to any
abatement, set-off, compensation, defense or counterclaim for any reason whatsoever. If a
security deposit is required, the same shall be held by Lessor to secure the faithful performance
of the lease and returned or applied in accordance with the terms of the lease. If Lessee fails to
make any monthly payment or other amount required herein to be paid to Lessor within five (5)
days of when due, Lessee agrees to pay Lessor, in addition to the required payment, a late fee of
15% of the amount past due (but at least $7.50) for each late payment. Each month the past due
payment remains unpaid, an additional late fee will be assessed. Payments are applied to late
fees and service charges first and then to payments in respect of lease obligations. These
amounts shall be payable in addition to all amounts payable by Lessee to Lessor as a result of
95
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 24
exercise of any of the remedies herein provided. If Lessee requests and Lessor provides any
services not set out herein, Lessee agrees to pay additional applicable fees. In addition to the
payment of monthly rent, Lessee agrees to pay Lessor an annual fee in an amount not to exceed
$50.00 for the administration, billing, reconciliation, and tracking of payments due under the
lease, which may generate a profit to Lessor.
k. Assignment. (a) Lessor may assign or transfer the lease or Lessor’s interest in the Leased
Equipment without notice to or consent by Lessee. Any assignee of Lessor shall have all of the
rights, but none of the obligations, of Lessor under the lease and Lessee agrees that it will not
assert against any assignee of Lessor any defense, counterclaim, set-off or compensation that
Lessee may have against Lessor, (b) Lessee shall not assign all or any part of Lessee’s rights or
obligations under the lease or enter into any sublease of all or any part of the Leased Equipment
without Lessor’s prior written consent, (c) Lessee shall not create, incur, assume or suffer to
exist any security interest, mortgage, lien, pledge, hypothec or other right, encumbrance or
attachment of any kind whatsoever upon, affecting or with respect to the Leased Equipment or
the lease or any of Lessor’s interests thereunder.
l. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased Equipment. Lessor
may at Lessee’s expense, cause the lease or any document, statement or other instrument in
respect to the lease showing Lessor’s interest in the Leased Equipment, including without
limitation Personal Property Security Act or Civil Code of Québec financing statements, to be
filed, registered or recorded and/or refiled, reregistered and rerecorded. Lessee waives the right,
where permitted by law, to receive a copy of any financing statement, financing change
statement or verification statement. Lessee agrees to execute and deliver any document,
statement or instrument requested by Lessor for such purpose, and agrees to reimburse Lessor
for any expense arising therefrom. Lessee shall at Lessee’s expense protect and defend Lessor’s
title against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever, and shall give Lessor
immediate notice thereof and shall indemnify Lessor from any loss caused thereby. Lessee
agrees to procure for and deliver to Lessor, such estoppel certificates, landlord’s or mortgagees’
waiver or other similar documents as Lessor may request. Provided Lessee is not in default
hereunder, Lessee may quietly use and enjoy the Leased Equipment subject to the terms hereof.
m. Care, Use and Location. Lessee shall maintain the Leased Equipment in good operating
condition, repair and appearance, and protect the same from deterioration other than normal
wear and tear; shall use the Leased Equipment in the regular course of Lessee’s business, within
its normal operating capacity, without abuse, and shall comply with all laws, ordinances,
regulations, requirements and rules with respect to the use, maintenance and operation of the
Leased Equipment; shall use the Leased Equipment solely for business purposes; shall not make
any modification, alteration or addition to the Leased Equipment without Lessor’s prior written
consent; shall not affix the Leased Equipment to real or immovable property as to change its
nature to a fixture; shall keep the Leased Equipment at the location(s) to which Lessor has
agreed, and shall not move the Leased Equipment from such location(s) without Lessor’s prior
written consent. Under no circumstances does Lessor have any responsibility to install, promote,
service, clean, maintain or repair the Leased Equipment, all of which is Lessee’s responsibility.
n. Net Lease; Taxes. Lessee intends the monthly payments hereunder to be net to Lessor, and
Lessee agrees to pay all provincial, territorial and federal sales, goods and services, harmonized,
use, excise, stamp, documentary and ad valorem taxes, license and registration fees,
assessments, fines, penalties and similar charges imposed on the lease, possession or use of the
Leased Equipment during the term of the lease; Lessee shall pay all taxes (except Lessor’s net
capital and income taxes) imposed on Lessor or Lessee with respect to the payments hereunder
or the lease of the Leased Equipment; and, shall reimburse Lessor upon demand for any taxes
paid by or advanced by Lessor. Lessor is entitled to the tax benefits available to an owner of the
Leased Equipment, including without limitation, the right to claim tax depreciation, capital cost
allowance or other deductions in respect of the capital cost thereof, investment tax credits and
deductions for interest incurred by Lessor to finance the purchase of the Leased Equipment, and
96
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 25
Lessee shall not take any tax filing position inconsistent with the foregoing.
o. Indemnity. Lessee agrees to indemnify and save Lessor, Lessor’s agents, servants, successors
and assigns harmless from any and all liability, damage or loss, including without limitation
reasonable legal fees, arising out of the ownership, selection, possession, leasing, operation,
control, use, condition (including but not limited to latent and other defects, whether or not
discoverable by Lessee), maintenance, delivery and return of the Leased Equipment. The
indemnities and obligations herein provided shall continue in full force and effect
notwithstanding the termination of the lease.
p. Insurance. Lessee shall keep the Leased Equipment insured against all risks of loss or damage
from any cause whatsoever for not less than the full replacement value thereof. The amount of
such insurance shall be sufficient so that neither Lessor nor Lessee will be considered a co-
insurer. Lessee shall carry public liability insurance, both personal injury and equipment
damage, covering the Leased Equipment. All such insurance shall be in form and with insurers
satisfactory to Lessor, and shall name Lessor and any assignee as first loss payee as its interest
may appear with respect to equipment damage coverage and as additional insured with respect
to public liability coverage. Lessee shall pay the premiums for such insurance and upon request
deliver to Lessor satisfactory evidence of insurance coverage required hereunder. The proceeds
of such insurance payable, as a result of loss or damage to any item of Leased Equipment, shall
be applied to satisfy Lessee’s obligation as set forth in Section (A)(19)(q) below. Lessee hereby
irrevocably appoints Lessor as Lessee’s attorney-in-fact, to make a claim for, receive payment
of and execute and endorse all documents, cheques or drafts, received in payment for loss or
damage under any such insurance policy. This appointment is coupled with an interest and is
irrevocable.
q. Loss or Destruction of Leased Equipment. Lessee shall notify Lessor immediately and shall
bear the entire risk and be responsible for loss, theft, damage or destruction of the Leased
Equipment from any cause whatsoever after taking possession of the Leased Equipment. In such
event, Lessee shall at Lessee’s expense (except to the extent of any proceeds of insurance
provided by Lessee which shall have been received by Lessor as a result thereof), and at
Lessor’s option, shall either (a) repair such item, returning it to its previous condition, unless
damaged beyond repair; or (b) pay Lessor all accrued and unpaid monthly payments and late
charges payable hereunder, plus an amount (the “Loss Amount”) equal to (i) the value of all
monthly payments to become due during the remaining term of the lease, plus (ii) the amount of
any purchase option or obligation with respect to the Leased Equipment or, if there is no such
option or obligation, the fair market value of the Leased Equipment, as estimated by Lessor in
Lessor’s sole reasonable discretion; or (c) replace such item with a like item acceptable to
Lessor, in good condition and of equivalent value, which shall be and become Lessor’s property,
shall be included within the term “Leased Equipment” as used herein and shall be leased from
Lessor herewith for the balance of the full term of the lease.
r. Loss or Destruction Waiver. Lessor may in Lessor’s sole and absolute discretion waive
Lessee’s responsibility for loss or destruction of the Leased Equipment and for keeping the
Leased Equipment fully insured during the lease term (a “Loss or Destruction Waiver”). Should
Lessee fail to provide proof of insurance, Lessor may invoke the Loss or Destruction Waiver
and charge a monthly fee at current rates in order that Lessor may fully insure the Leased
Equipment. In the event of loss or destruction of the Leased Equipment, Lessor shall provide for
its replacement with Leased Equipment of comparable value at that time, provided (i) Lessee
took reasonable care in preventing the loss or destruction of the Leased Equipment and (ii)
Lessee has paid in a timely manner the required monthly fee for the Loss or Destruction Waiver.
Lessee shall cooperate with Lessor in making any claim with respect to the Leased Equipment.
s. Default. If any one of the following events (each a “Default”) shall occur, then to the extent
permitted by applicable law, Lessor shall have the right to exercise any one or more remedies
set forth herein: (i) Lessee fails to pay any payments hereunder, monthly or otherwise, when
due; or (ii) Lessee fails to pay, when due, any indebtedness owed to Lessor or any of Lessor’s
97
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 26
affiliates arising independently of the lease, and such default shall continue for five (5) days; or
(iii) Lessee fails to perform any of the terms, covenants, or conditions of the lease, other than as
provided above, after ten (10) days written notice; or (iv) Lessee becomes insolvent or make an
assignment for the benefit of creditors; or (v) a receiver, trustee or liquidator of Lessee or of all
or a substantial part of Lessee’s assets are appointed with or without Lessee’s application or
consent; or (vi) an application for a bankruptcy order is filed, or any other proceedings are
commenced by or against Lessee, or Guarantor, under the Bankruptcy and Insolvency Act
(Canada), or under any other bankruptcy, arrangement, dissolution, liquidation or insolvency
law(s) providing for relief of debtors.
t. Remedies. If a Default shall occur, Lessor may, at Lessor’s option, at any time (i) declare
immediately due and payable and recover from Lessee, as liquidated damages for the loss of a
bargain and not as a penalty, an amount equal to all accrued and unpaid installment payments
and late charges, taxes, and other fees, plus the Loss Amount; provided, however, that if a
Default shall occur as described in any of Sections (A)(19)(s)(iv) through (vi) above, Lessor
without any notice or action shall be deemed to have made such a declaration; (ii) automatically
charge any or all of Lessee’s credit cards or accounts, other lines-of-credit or the DDA or other
bank accounts for all money amounts owed; (iii) to the extent permitted by applicable Law,
without demand or legal process, enter into the premises where the Leased Equipment may be
found and take possession of and remove the Leased Equipment, without liability for such
retaking; (iv) hold, sell or otherwise dispose of any such Leased Equipment at a private or
public sale; or (v) exercise any other remedies available under applicable Law. If Lessor takes
possession of the Leased Equipment, Lessor shall give Lessee credit for any sums received by
Lessor from the sale or rental of the Equipment after deduction of the expenses of sale or other
disposition and Lessee shall remain liable to Lessor for any deficiency. Notwithstanding the
foregoing, to the extent any software forming part of the Leased Equipment is nontransferable
or its transfer restricted, Lessee agrees that Lessor and/or the licensor of such software shall
have no duty to remarket such software or otherwise mitigate any damages relating to such
software. Lessee shall also be liable for and shall pay to Lessor (i) all expenses incurred by
Lessor in connection with the enforcement of any of Lessor’s remedies including without
limitation all collection expenses, that includes, but is not limited to, charges for collection
letters and collection calls, charges of collection agencies, sheriffs, etc.; and all expenses of
repossessing, storing, shipping, repairing and selling the Leased Equipment; and (ii) reasonable
legal fees and court costs. Lessee and Lessor acknowledge the difficulty in establishing a value
for the unexpired lease term and, owing to such difficulty, agree that the provisions of this
paragraph represent an agreed measure of damages and are not to be deemed a forfeiture or
penalty. All of Lessor’s remedies hereunder are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be exercised
concurrently or separately. The exercise of any one remedy shall not be deemed to be an
election of such remedy or to preclude the exercise of any other remedy. No failure on Lessor’s
part to exercise and no delay in exercising any right to remedy shall operate as a waiver thereof
or modify the terms of the lease.
u. END OF LEASE TERM. (I) UPON EXPIRATION OF THE LEASE TERM, LESSEE
SHALL HAVE THE OPTION TO PURCHASE THE LEASED EQUIPMENT FOR AN
AMOUNT EQUAL TO 10% OF THE AGGREGATE LEASE PAYMENTS ON 12
MONTH, 24 MONTH, 36 MONTH, 48 MONTH OR 60 MONTH LEASES. WRITTEN
NOTICE OF THE EXERCISE OF THIS OPTION MUST BE SENT TO LESSOR AT
LEAST THIRTY (30) DAYS PRIOR TO EXPIRATION OF THE LEASE TERM; (II) IF
LESSEE DOES NOT ELECT TO PURCHASE THE LEASED EQUIPMENT, THEN
UPON EXPIRATION OR EARLIER TERMINATION OF THE LEASE, LESSEE
SHALL RETURN THE LEASED EQUIPMENT TO LESSOR IN GOOD OPERATING
CONDITION AND REPAIR, SHIPPED BY PREPAID AND INSURED FREIGHT TO A
LOCATION DESIGNATED BY LESSOR. IF THE LEASED EQUIPMENT IS
RETURNED DAMAGED, INCOMPLETE OR SHOWS SIGNS OF EXCESSIVE WEAR,
LESSEE AGREES TO PAY THE REPLACEMENT COST AND/OR THE REPAIR,
98
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 27
REFURBISHING AND CLEANING COST IN AN AMOUNT DESIGNATED BY
LESSOR WHICH IS PAYABLE WITHIN TEN (10) DAYS OF LESSOR’S DEMAND;
(III) IF LESSEE DOES NOT ELECT TO PURCHASE OR RETURN THE LEASED
EQUIPMENT AS PROVIDED IN (I) OR (II) ABOVE, THE LEASED EQUIPMENT
SHALL CONTINUE TO BE HELD AND LEASED HEREUNDER AND THE LEASE
SHALL BE EXTENDED INDEFINITELY AS TO TERM AT THE THEN CURRENT
MONTHLY PAYMENT UNTIL LESSOR HAS RECEIVED PAYMENT AT LEAST
EQUAL TO LESSOR’S FULL INVESTMENT IN THE LEASED EQUIPMENT, AS
CALCULATED BY LESSOR, FOLLOWING WHICH, AND UPON NOTICE FROM
LESSOR TO LESSEE, LESSEE SHALL BE DEEMED TO HAVE PURCHASED THE
LEASED EQUIPMENT FROM LESSOR ON AN “AS IS, WHERE IS” BASIS,
SUBJECT TO THE RIGHT OF EITHER LESSEE OR LESSOR TO TERMINATE THE
LEASE UPON THIRTY (30) DAYS WRITTEN NOTICE, WHEREUPON LESSEE
SHALL DELIVER THE LEASED EQUIPMENT TO LESSOR AS SET FORTH IN THIS
PARAGRAPH; AND (IV) PROVIDED LESSEE HAS FULFILLED ALL OF LESSEE’S
OBLIGATIONS HEREUNDER, LESSEE’S SECURITY DEPOSIT, IF ANY, (1) SHALL
BE REFUNDED AT THE EXPIRATION OF THE LEASE WITHOUT INTEREST OR
(2) AT LESSEE’S DIRECTION, SUCH SECURITY DEPOSIT MAY BE APPLIED TO
THE PURCHASE OF THE LEASED EQUIPMENT BY LESSEE.
v. Privacy. Each of Lessee and Guarantor consents and agrees that Lessor may (i) collect and use
any personal information provided by Lessee or Guarantor or obtained under any provision of
the lease for the purpose of furthering the objects of the lease and to respond to any further
application for services by Lessee; (ii) use such information to conduct credit checks from
time to time with credit bureaus; (iii) disclose such information and any information regarding
late payments, missed payments or Defaults hereunder to Lessor’s affiliates and third party
service providers, payment networks, credit bureaus or agencies, financial institutions and
similar parties for the purposes stated herein; (iv) use such information to investigate potentially
fraudulent or questionable activities regarding the Leased Equipment or services for which the
Leased Equipment is used; (v) use or disclose such information in the course of any actual or
potential sale, reorganization, amalgamation or other change to Lessor’s business or assignment
under Section (A)(19)(k) above; (vi) collect, use and disclose such information when required or
permitted by applicable law, regulation or legal process; and (vii) retain all such information for
such periods of time as required by Lessor to perform Lessor’s obligations and exercise Lessor’s
rights under the lease.
w. Miscellaneous. Lessee shall inform Lessor of any change in Lessee’s name, address, billing
address, telephone numbers, location of the Leased Equipment, or the DDA. If Lessee fails to
comply with any provision of the lease, Lessor shall have the right, but not be obligated, to
effect such compliance on Lessee’s behalf upon ten (10) days prior written notice to Lessee. In
such event, all monies expended by Lessor and all Lessor’s expenses in effecting such
compliance, shall be deemed to be additional obligations hereunder, and shall be paid by Lessee
at the time of the next monthly payment hereunder. All notices under the lease shall be
sufficient if given personally or mailed postage prepaid to the party intended at the respective
address set forth herein, or at such other address as said party may provide in writing from time
to time. The lease inures to the benefit of and is binding upon the personal representatives,
successors, heirs and assigns of the parties hereto. Time is of the essence of the lease. Lessee
and Lessor intend the lease to be a valid and subsisting legal instrument, and agree that no
provision of the lease that may be deemed unenforceable in any jurisdiction shall in any way
invalidate any other provision or provisions of the lease in that jurisdiction, all of which shall
remain in full force and effect. References to any legislation, statutory instrument, regulation,
rule or a section thereof, unless otherwise specified, is a reference to the legislation, statutory
instrument, regulation, rule or section as amended, restated or re-enacted from time to time. The
lease and the personal guarantee set forth herein shall be binding on Lessee and Guarantor when
accepted in writing by Lessor and shall be governed by the laws of the Province of Ontario and
the federal laws of Canada applicable in such Province, except in the event that the Leased
99
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 28
Equipment is situated in the Province of Québec, in which case the lease shall be governed by
the laws of the Province of Québec and the federal laws of Canada applicable in such Province.
The limitation period in the lease is extended to the greater of six years or any longer period
permitted by applicable law. For greater certainty, each of the parties hereto acknowledges that
the lease is a “business agreement” as defined under Section 22 of the Limitations Act, 2002
(Ontario).
x. Security Agreement. The following sentence is hereby added to the end of Section
(A)(6)(a)(i): “The hypothec created pursuant to this Section (A)(6)(a)(i) is granted for the sum
of $1,000,000 with interest at the rate of twenty-five percent (25.0%) per annum.”
20. EQUIPMENT LEASING
If Company has elected to lease any Leased Equipment from Lessor, the following terms and conditions
apply to Company as Lessee of the Leased Equipment:
a. Non-Cancellable Lease. THIS LEASE IS NONCANCELABLE AND AN IRREVOCABLE
AGREEMENT. THIS EQUIPMENT LEASE AGREEMENT CANNOT BE CANCELED
OR TERMINATED BY COMPANY. Lessor, its successors and assigns, does hereby lease to
Lessee and Lessee hereby rents from Lessor the Leased Equipment, on terms and conditions set
forth in this Section.
b. No Warranties by Lessor. Lessee represents that Lessee has selected and approved the
Leased Equipment leased hereunder and Lessee acknowledges Lessor has made and makes no
representations or warranties of any kind or nature, directly or indirectly, expressed or implied,
as to any matter whatsoever, including the suitability of the Leased Equipment, its durability, its
condition, and/or its quality. Lessee leases the Leased Equipment “as-is.” Lessor also disclaims
any warranty of merchantability or fitness for use or purpose whether arising by operation of
law or otherwise. Lessor and Lessor’s assignee shall not be liable to Lessee or others for any
loss, damage or expense of any kind or nature caused directly or indirectly by any Leased
Equipment however arising, or the use or maintenance thereof or the failure of operation
thereof, or the repairs, service or adjustment thereto. No representation or warranty as to the
Leased Equipment or any other matter by the Leased Equipment supplier (“Equipment
Vendor”) identified in the Company Application, or elsewhere in the Agreement, or others shall
be binding on the Lessor nor shall the breach of such relieve Lessee of, or in any way affect, any
of Lessee’s obligations to Lessor herein.
If the Leased Equipment is not satisfactory for any reason, Lessee shall make any claim on
account thereof solely against the Equipment Vendor and Lessee shall nevertheless pay Lessor
all rent payable under the lease. Lessor agrees to assign to Lessee, solely for the purpose of
making and prosecuting any such claim, any rights it may have against the Equipment Vendor
for breach of warranty or representation respecting the Leased Equipment.
Regardless of cause, Lessee will not assert any claim whatsoever against Lessor for loss of
anticipatory profits or any other indirect, special, or consequential damages. Lessor makes no
warranty as to the treatment of the lease for accounting or tax purposes. NOTWITHSTAND-
ING ANY FEES WHICH MAY BE PAID BY LESSOR TO EQUIPMENT VENDOR OR
ANY AGENT OF THE LESSOR, LESSEE UNDERSTANDS AND AGREES THAT
NEITHER THE EQUIPMENT VENDOR NOR ANY AGENT OF THE EQUIPMENT
VENDOR IS AN AGENT OF LESSOR OR IS AUTHORIZED TO WAIVE OR ALTER
ANY TERM OR CONDITION OF THE LEASE.
c. Authorization for Automatic Withdrawal of Monthly Payments. Lessee hereby authorizes
Lessor, or its designee, successor or assign to withdraw the monthly lease amount and any
additional amounts, including any and all taxes now due or imposed, owed by Lessee in
100
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 29
connection with the Leased Equipment, by initiating debit entries to the DDA indicated on the
Company Application or the Agreement, or such other DDA as the Lessee may from time to
time use. In the event of default of Lessee’s obligations hereunder, Lessee authorizes the debit
of its DDA for the full amount due under the lease. Lessee agrees to contest transactions that
might be invalid within ninety (90) days of the transaction date, or the transaction will be
deemed valid. A rental payment (whether paid by debit or other means) that is not honored by
Lessee’s financial institution for any reason will be subject to a returned item service fee
imposed by Lessor, the amount of which may be debited from Lessee’s DDA. Should it be
necessary to switch to statement billing, Lessor is authorized to add a $10.00 per month service
charge to Lessee’s monthly payment amount as reimbursement for the added service and
processing expenses. In the event that Lessor withdraws funds erroneously from Lessee’s DDA,
Lessee authorizes Lessor to credit Lessee’s DDA for an amount not to exceed the original
amount of the debit. This authorization is to remain in full force and effect until Lessor and
Lessee’s financial institution have received written notice from Lessee of its termination in such
time and in such manner as to afford Lessor and Lessee’s financial institution a reasonable
opportunity to act. LESSEE REPRESENTS AND WARRANTS THAT ITS DDA HAS
BEEN ESTABLISHED AS A BUSINESS-PURPOSE CHECKING ACCOUNT.
d. Finance Lease. Lessor and Lessee agree that the lease is a “Finance Lease” as defined by
Section 11-2A-103(g) of the GA UCC. Lessee acknowledges either (i) that Lessee has reviewed
and approved any written “Supply Contract” as defined by GA UCC Section 11-2A-103(y)
covering the Leased Equipment purchased from the “Supplier” as defined by GA UCC Section
11-2A-103(x) thereof for lease to Lessee or (ii) that Lessor has informed or advised Lessee, in
writing, either previously or by the lease of the following: (1) the identity of the Supplier; (2)
that the Lessee may have rights under the Supply Contract; and (3) that the Lessee may contact
the Supplier for a description of any such rights Lessee may have under the Supply Contract.
e. Ordering Equipment; Lessor’s Right to Terminate. Lessee requests Lessor to purchase the
Leased Equipment from Equipment Vendor and arrange for delivery to Lessee at Lessee’s
expense. If within forty-five (45) days from the date Lessor orders the Leased Equipment, the
same has not been delivered, installed and accepted by Lessee in form satisfactory to Lessor,
Lessor may on ten (10) days written notice to Lessee terminate the lease and its obligations to
Lessee.
f. Term and Rent. The sum of all periodic installments of rent indicated in the Company
Application or the Agreement shall constitute the aggregate rent reserved under the lease. The
lease term shall commence as of the date that the lease is accepted by Lessor, (the
“Commencement Date”), and shall continue until the obligations of the Lessee under the lease
shall have been fully performed. The installments of rent shall be payable monthly in advance as
stated above or on a schedule, the first such payment being due on the Commencement Date, or
such later date as Lessor designates in writing, and subsequent payments shall be due on the
same day of each successive month thereafter until the balance of the rent and any additional
rent or expenses chargeable to Lessee under the lease shall have been paid in full. All payments
of rent shall be made to Lessor at the address set forth in the Company Application or the
Agreement or such other address as Lessor may designate in writing. Lessee’s obligation to pay
such rentals shall be absolute and unconditional and is not subject to any abatement, set-off,
defense of counterclaim for any reason whatsoever. Lessee hereby authorizes Lessor to insert
into the lease the serial numbers and other identification data of the Leased Equipment when
determined by Lessor and dates or other omitted factual matters and to correct any
typographical or spelling errors. If a security deposit is indicated in the Company Application,
or in any additional application and setup forms, the same shall be held by Lessor to secure the
faithful performance of the terms of the lease and returned or applied in accordance with Section
(A)(20)(q)(iv) below. In addition to the payment of monthly rent, Lessee agrees to pay Lessor
an annual fee in an amount not to exceed $50.00 for the administration, billing, reconciliation,
and tracking of payments due under the lease, which may generate a profit to Lessor.
101
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 30
g. Assignment. (i) LESSOR MAY ASSIGN OR TRANSFER THE LEASE OR LESSOR’S
INTEREST IN THE LEASED EQUIPMENT WITHOUT NOTICE TO LESSEE. Any
assignee of Lessor shall have all of the rights, but none of the obligations, of Lessor under the
lease and Lessee agrees that it will not assert against any assignee of Lessor any defense,
counterclaim or offset that Lessee may have against Lessor. Lessee acknowledges that any
assignment or transfer by Lessor shall not materially change Lessee’s duties or obligations
under the lease nor materially increase the burdens or risks imposed on Lessee. Lessee agrees
that Lessor may assign or transfer the lease or Lessor’s interest in the Leased Equipment even if
said assignment or transfer could be deemed to materially affect the interest of Lessee. (ii)
LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART
OF ITS RIGHTS OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY
SUBLEASE OF ALL OR ANY PART OF THE LEASED EQUIPMENT WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR. (iii) Lessee shall not create, incur, assume or
suffer to exist any mortgage, lien, pledge or other encumbrance or attachment of any kind
whatsoever upon, affecting or with respect to the Leased Equipment or the lease or any of
Lessor’s interests thereunder.
h. Title; Quiet Enjoyment. Lessor shall at all times retain title to the Leased Equipment. All
documents of title and evidence of delivery shall be delivered to Lessor. Lessee hereby
authorizes Lessor, at Lessee’s expense, to cause the lease or any statement or other instrument in
respect to the lease showing the interest of Lessor in the Leased Equipment including Uniform
Commercial Code Financing Statements, to be filed or recorded and/or refiled and rerecorded,
and grants Lessor the right to execute Lessee’s name thereto. Lessee agrees to execute and
deliver any statement or instrument requested by Lessor for such purpose, and agrees to pay or
reimburse Lessor for any filing, recording or stamp fees or taxes arising from the filing or
recording of any such instrument or statement. Lessee shall at its expense, protect and defend
Lessor’s title against all persons claiming against or through Lessee, at all times keep the Leased
Equipment free from legal process or encumbrance whatsoever and, shall give Lessor
immediate notice thereof and shall indemnify Lessor from any loss caused thereby. Lessee
agrees to procure for Lessor, such estoppel certificates, landlord’s or mortgagees’ waiver or
other similar documents as Lessor may reasonably request. Provided Lessee is not in default
hereunder, Lessee shall quietly use and enjoy the Leased Equipment subject to the terms hereof.
i. Care, Use and Location. Lessee shall maintain the Leased Equipment in good operating
condition, repair and appearance, and protect the same from deterioration other than normal
wear and tear; shall use the Leased Equipment in the regular course of its business, within its
normal operating capacity, without abuse, and shall comply with all Laws with respect to the
use, maintenance and operation of the Leased Equipment; shall use the Leased Equipment
solely for business purposes; shall not make any modification, alteration or addition to the
Leased Equipment, without the written consent of Lessor, which shall not be unreasonably
withheld; shall not at any time so affix the Leased Equipment to realty as to change its nature to
real equipment or to a fixture regardless of how attached or installed; shall keep the Leased
Equipment at the location shown in the Company Application or the Agreement, and shall not
remove the Leased Equipment without written consent of Lessor, which shall not be
unreasonably withheld.
j. Net Lease; Taxes. Lessee intends the rental payments hereunder to be net to Lessor, and Lessee
agrees to pay all sales, use, excise, personal equipment, stamp, documentary and ad valorem
taxes, license and registration fees, assessment, fines, penalties and similar charges imposed on
the ownership, possession or use of the Leased Equipment during the term of the lease; shall pay
all taxes (except Lessor’s federal or state net income taxes) imposed on Lessor or Lessee with
respect to the rental payments hereunder or the ownership of the Leased Equipment; and, shall
reimburse Lessor upon demand for any taxes paid by or advanced by Lessor. Lessee agrees that
the reimbursement of equipment tax calculation is based on an average tax rate. Unless
otherwise agreed to in writing, Lessee shall file personal equipment tax returns with respect to
the Leased Equipment.
102
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 31
k. Indemnity. Lessee shall and does hereby agree to indemnify and save Lessor, its agents,
servants, successors, and assigns harmless from any and all liability, damage or loss, including
reasonable attorney’s fees, arising out of the ownership, selection, possession, leasing,
operation, control, use, condition (including but not limited to latent and other defects, whether
or not discoverable by Lessee), maintenance, delivery and return of the Leased Equipment. The
indemnities and obligations herein provided shall continue in full force and effect
notwithstanding the termination of the lease.
l. Insurance. During the term of the lease, Lessee agrees to maintain, at Lessee’s expense, (i)
“Special Form” property insurance protecting the Leased Equipment for its replacement value,
naming Lessor as a loss payee on a “Lender’s Loss Payable” endorsement; and (ii) public
liability insurance, in amounts acceptable to Lessor, naming Lessor as an additional insured
(together, “Required Insurance”). Lessee must provide Lessor satisfactory written evidence of
Required Insurance within thirty (30) days of the Commencement Date or any subsequent
written request. If Lessee does not do so, Lessor may obtain insurance from an insurer of
Lessor’s choosing in such forms and amounts as Lessor deems reasonable to protect Lessor’s
interests (“Lease Insurance”). Lease Insurance covers the Leased Equipment and the Lessor; it
does not name the Lessee as an insured and may not cover all of the Lessee’s interest in the
Leased Equipment. Lessee agrees to pay Lessor periodic charges for Lease Insurance
(“Insurance Charges”) that include: a premium that may be higher than if the Lessee maintained
the Required Insurance separately; a finance charge of up to 1.5% per month on any premium
advances made by the Lessor or Lessor’s agents; and billing and processing fees; each of which
may generate a profit to Lessor and Lessor’s agents. Unless Lessee provides satisfactory
evidence of Required Insurance by the Insurance Charge due date, Lessor will pay such
Insurance Charge by debiting Lessee’s DDA under the withdrawal provision of the lease. Lessor
shall discontinue billing Insurance Charges upon receipt of satisfactory evidence of Required
Insurance. Lessee agrees to arbitrate any dispute with Lessor or Lessor’s agents regarding
Lease Insurance or Insurance Charges under the rules of the American Arbitration Association
in Atlanta, Georgia; provided however, such agreement does not authorize class arbitration.
m. Loss or Destruction of Leased Equipment. Lessee shall bear the entire risk and be
responsible for loss, theft, damage or destruction of the Leased Equipment from any cause
whatsoever after taking possession of the Leased Equipment. Lessee shall notify Lessor
immediately if the Leased Equipment is lost, destroyed, stolen or taken by any other person. In
the event of loss, damage or destruction of any item of Leased Equipment, Lessee at its expense
(except to the extent of any proceeds of insurance provided by Lessee which shall have been
received by Lessor as a result of such loss, damage or destruction), and at Lessor’s option, shall
either (i) repair such item, returning it to its previous condition, unless damaged beyond repair;
(ii) pay Lessor all accrued and unpaid rental payments and late charges, plus an amount (the
“Loss Amount”) equal to (1) the value of all rental payments to become due during the
remaining term of the lease, plus (2) the amount of any purchase option or obligation with
respect to the Leased Equipment or, if there is no such option or obligation, the fair market
value of the Leased Equipment, as estimated by Lessor in its sole reasonable discretion; or (iii)
replace such item with a like item acceptable to Lessor, in good condition and of equivalent
value, which shall become equipment of Lessor, included within the term “Leased Equipment”
as used herein, and leased from Lessor herewith for the balance of the full term of the lease.
n. Loss or Destruction Waiver. Lessor may waive Lessee’s responsibility for loss or destruction
of the Leased Equipment and for keeping the Leased Equipment fully insured during the lease
term (a “Loss or Destruction Waiver”). Should Lessee fail to provide proof of insurance, Lessor
may invoke the Loss or Destruction Waiver and charge a monthly fee at current rates in order
that Lessor may fully insure the Leased Equipment. In the event of loss or destruction of the
Leased Equipment, Lessor shall provide for its replacement with Leased Equipment of
comparable value at that time provided (i) Lessee took reasonable care in preventing the loss or
destruction of the Leased Equipment and (ii) Lessee has paid in a timely manner the required
103
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 32
monthly amount for the Loss or Destruction Waiver. Lessee shall cooperate with Lessor in
making any claim with respect to the Leased Equipment.
o. Event of Default. If any one of the following events (each an “Event of Default”) shall occur,
then to the extent permitted by applicable Law, Lessor shall have the right to exercise any one
or more remedies set forth in Section (A)(20)(p) below: (i) Lessee fails to pay any rental or any
other payment hereunder when due; (ii) Lessee fails to pay, when due, any indebtedness of
Lessee to Lessor arising independently of the lease, and such default shall continue for five (5)
days; (iii) Lessee fails to perform any of the terms, covenants, or conditions of the lease, other
than as provided above, after ten (10) days written notice; (iv) Lessee becomes insolvent or
makes an assignment for the benefit of creditors; (v) a receiver, trustee, conservator, or
liquidator of Lessee, of all or a substantial part of its assets, is appointed with or without the
application or consent of Lessee; or (vi) a petition is filed by or against Lessee under the
Bankruptcy Code of 1978, as amended, or under any other insolvency law(s), providing for
relief of debtors.
p. Remedies. If an Event of Default shall occur, Lessor may, at its option, at any time (i) declare
immediately due and payable and recover from Lessee, as liquidated damages for the loss of a
bargain and not as a penalty, an amount equal to all accrued and unpaid rental payments and late
charges, taxes, and other fees, plus the Loss Amount; provided, however, that if an Event of
Default shall occur as described in Section (A)(20)(o)(iv) through (vi) above, Lessor without
any notice or action shall be deemed to have made such a declaration; (ii) automatically charge
any or all of Lessee’s credit cards or accounts, other lines of credit or the DDA or other bank
accounts for all money amounts owed; (iii) to the extent permitted by applicable Law, without
demand or legal process, enter into the premises where the Leased Equipment may be found and
take possession of and remove the Leased Equipment, without liability for such retaking; (iv)
Lessor may hold, sell or otherwise dispose of any such Leased Equipment at a private or public
sale; or (v) exercise any other remedies available under applicable Law. In the event Lessor
takes possession of the Leased Equipment, Lessor shall give Lessee credit for any sums received
by Lessor from the sale or rental of the Leased Equipment after deduction of the expenses of
sale or rental and Lessee shall remain liable to Lessor for any deficiency. Notwithstanding the
foregoing, to the extent any software included with the Leased Equipment is nontransferable or
its transfer restricted, Lessee agrees that Lessor and/or the licensor of such software shall have
no duty to remarket or otherwise mitigate any damages relating to such software.
Lessee shall also be liable for and shall pay to Lessor (i) all expenses incurred by Lessor in
connection with the enforcement of any of Lessor’s remedies including all collection expenses,
that includes, but is not limited to, charges for collection letters and collection calls, charges of
collection agencies, sheriffs, etc.; and all expenses of repossessing, storing, shipping, repairing
and selling the Leased Equipment; and (ii) reasonable attorney’s fees and court costs. Lessor
and Lessee acknowledge the difficulty in establishing a value for the unexpired lease term and,
owing to such difficulty, agree that the provisions of this Section represent an agreed measure of
damages and are not to be deemed a forfeiture or penalty. All remedies of Lessor hereunder are
cumulative, are in addition to any other remedies provided for by Law, and may, to the extent
permitted by Law, be exercised concurrently or separately. The exercise of any one remedy
shall not be deemed to be an election of such remedy or to preclude the exercise of any other
remedy. No failure on the part of the Lessor to exercise and no delay in exercising any right to
remedy shall operate as a waiver thereof or modify the terms of the lease.
q. END OF LEASE TERM. (i) UPON EXPIRATION OF THE LEASE TERM, LESSEE
SHALL HAVE THE OPTION TO PURCHASE LEASED EQUIPMENT FOR ITS
RESIDUAL FAIR MARKET VALUE OR RETURN THE LEASED EQUIPMENT TO
LESSOR.
(ii) THE EXERCISE OF THIS OPTION MUST BE COMMUNICATED TO LESSOR IN
WRITING AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE
104
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 33
LEASE TERM. THE LEASED EQUIPMENT IS SOLD “AS IS” “WHERE IS” “WITH
ALL FAULTS.” EXCEPT AS PROVIDED IN THE LEASE, LESSOR MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO THE LEASED EQUIPMENT PURCHASED.
(iii) IN THE EVENT LESSEE DOES NOT ELECT TO PURCHASE THE LEASED
EQUIPMENT, THEN UPON EXPIRATION OR EARLIER TERMINATION OF THE
LEASE, LESSEE SHALL RETURN THE LEASED EQUIPMENT TO LESSOR IN
GOOD OPERATING CONDITION AND REPAIR, SHIPPED BY PREPAID AND
INSURED FREIGHT TO A LOCATION DESIGNATED BY LESSOR. IF, IN THE
JUDGMENT OF LESSOR, THE LEASED EQUIPMENT IS RETURNED DAMAGED,
INCOMPLETE, OR SHOWS SIGNS OF EXCESSIVE WEAR, LESSEE AGREES TO
PAY THE REPLACEMENT COST AND/OR THE REPAIR AND REFURBISHING
COST (INCLUDING CLEANING), FOR AN AMOUNT DESIGNATED BY LESSOR
AND PAYABLE WITHIN TEN (10) DAYS OF LESSOR’S DEMAND.
(iv) IF LESSEE DOES NOT ELECT TO PURCHASE OR RETURN THE LEASED
EQUIPMENT UPON EXPIRATION OR TERMINATION OF THE LEASE AS
PROVIDED HEREIN, THE LEASED EQUIPMENT SHALL CONTINUE TO BE HELD
AND LEASED HEREUNDER, AND THE LEASE SHALL BE EXTENDED FOR A
PERIOD OF UP TO TWELVE (12) MONTHS UPON THE EXISTING TERMS AND
CONDITIONS OF THIS LEASE AGREEMENT AND AT THE SAME MONTHLY
RENTAL, SUBJECT TO THE RIGHT OF EITHER THE LESSEE OR THE LESSOR
TO TERMINATE THE LEASE UPON THIRTY (30) DAYS WRITTEN NOTICE,
WHEREUPON THE LESSEE SHALL FORTHWITH DELIVER THE LEASED
EQUIPMENT TO LESSOR AS SET FORTH IN THIS SECTION. ONCE THE LESSEE
HAS FULLY PAID THE ADDITIONAL TWELVE (12) MONTHS OF EXTENDED
LEASE RENTAL, SUCH PAYMENT SHALL OPERATE AS PAYMENT OF THE
RESIDUAL FAIR MARKET VALUE OF THE EQUIPMENT AND LESSEE WILL BE
DEEMED TO HAVE PURCHASED THE LEASED EQUIPMENT.
(v) PROVIDED LESSEE HAS FULFILLED ALL OF ITS OBLIGATIONS TO LESSOR
HEREUNDER, LESSEE’S SECURITY DEPOSIT OR SECURITY RESERVE, IF ANY,
AS INDICATED IN THE COMPANY APPLICATION, OR IN ANY ADDITIONAL
APPLICATION AND SETUP FORMS, (1) SHALL BE REFUNDED TO LESSEE AT
THE EXPIRATION OF THE LEASE WITHOUT INTEREST OR (2) AT LESSEE’S
DIRECTION, SUCH SECURITY DEPOSIT MAY BE APPLIED TO THE PURCHASE
OF THE LEASED EQUIPMENT, IN WHICH EVENT THE LEASED EQUIPMENT
NEED NOT BE RETURNED TO LESSOR.
r. Entire Agreement; Changes. The lease contains the entire agreement between the parties and
may not be altered, amended, modified, terminated or otherwise changed except in writing and
signed by an executive officer of Lessor and by the Lessee.
s. Miscellaneous. If Lessee fails to pay any rent or other amount required herein to be paid to
Lessor within five (5) days of when due, Lessee agrees to pay Lessor, in addition to the
payment, a late charge of 15% of the amount past due (but at least $7.50) for each late payment.
Each month the past due payment remains unpaid, an additional late fee in the amount defined
will be assessed. Payments are applied to late fees and service charges first and then to the lease
obligation. Amounts shall be payable in addition to all amounts payable by Lessee to Lessor as a
result of exercise of any of the remedies herein provided. If Lessee requests any services not
provided for herein, Lessee agrees to pay an applicable fee for delivery of such services. Lessee
shall inform Lessor of any change in Lessee’s name, address, billing address, telephone
numbers, location of the Leased Equipment, or DDA. In the event Lessee fails to comply with
any provision of the lease, Lessor shall have the right, but not be obligated, to affect such
compliance on behalf of Lessee upon ten (10) days prior written notice to Lessee. In such event,
105
TOS201702 TERMS OF SERVICE
SECTION A – GENERAL PROVISIONS 34
all monies expended by, and all expenses of Lessor in effecting such compliance, shall be
deemed to be additional rental, and shall be paid by Lessee at the time of the next monthly
payment of rent. All notices under the lease shall be sufficient if given personally or mailed
postage prepaid to the party intended at the respective address set forth herein, or at such other
address as said party may provide in writing from time to time. The lease inures to the benefit of
and is binding upon the personal representatives, successors and assigns of the parties hereto.
Time is of the essence of the lease. Lessor and Lessee intend the lease to be a valid and
subsisting legal instrument, and agree that no provision of the lease that may be deemed
unenforceable shall in any way invalidate any other provision or provisions of the lease, all of
which shall remain in full force and effect. The lease shall be binding when accepted in writing
by Lessor and shall be governed by the laws of the State of Georgia, provided however, in the
event the lease or any provision hereof is not enforceable under the laws of the State of Georgia
then the laws of the state where the Leased Equipment is located shall govern. Lessee consents
and submits to the jurisdiction of the federal and state courts located in the State of Georgia and
within Fulton County (the “Courts”), and expressly agree to such forum for the bringing of any
suit, action or other proceeding arising out of the Lessee’s obligations hereunder, and expressly
waive any objection to venue in any such Courts and waive any right to a trial by jury so that
trial shall be by and only to the Court. Lessee agrees that any process served for any court action
or proceeding shall be valid if mailed by certified mail, return receipt requested.
t. Important Information about Credit Reporting. Lessor may report information about this
account to credit bureaus. Late payments, missed payments, or other defaults on this account
may be reflected in the credit report of Lessee and/or Guarantor.
106
TOS201702 TERMS OF SERVICE
SECTION B: ELECTRONIC CHECK SERVICES 35
SECTION B – ELECTRONIC CHECK SERVICES (ECS)
If Company has selected Electronic Check Services (“ECS”), Company shall be subject to this Section B in
addition to the terms and conditions of Section A of this TOS. The terms and conditions for ECS are set forth in the
Agreement and the ECS Merchant Operating Guide (the “ECS MOG”), incorporated herein and located at our
website https://www.merchantconnect.com/CWRWeb/ElectronicCheckService.do. In the course of its acceptance
and use of ECS, Company represents, warrants and covenants the following:
1. Company shall comply with and be bound by (a) the ECS Rules, including the ACH Rules, the ECS
MOG and the ECS Primer, and (b) Laws, including, but not limited to, the Check Clearing for the
21st Century Act and Regulation CC, Article 3 and Article 4 of the Uniform Commercial Code as in
effect in the applicable state(s), the Electronic Fund Transfer Act and Regulation E, and the Fair
Credit Reporting Act as amended by the Fair and Accurate Credit Transactions Act.
2. Company shall pay the fees for ECS as set forth in the Company Application, and in any additional
application and setup forms.
3. In the event Company accepts for ECS certain types of Customer payments that are ineligible as
specified in the ECS MOG for any reason, such Transaction is subject to Chargeback. Company may
be liable for the face value of the Transaction and any actual damages related to or arising out of
processing a Transaction that has been charged back.
4. Company shall cause a Check Reader/Imager to be readily available for use at all Company
locations where Company will accept Paper Checks for ECS processing.
5. Company must use commercially reasonable procedures to verify the identity of each Customer that
submits a payment.
6. Company shall be solely responsible for providing Customers with notifications and disclosures in
connection with ECS, including, but not limited to, posting all point of sale signage and distributing
all Customer takeaways and all notices and disclosures required to be provided under the ECS Rules
and Laws.
7. Company may use the ECS only in connection with the presentment and acceptance of certain types
of Customer payments in payment for goods or services sold by Company, or in payment for an
obligation owed to Company, and only in compliance with the ECS Rules. Company shall be the
sole user of the ECS, and Company may not resell or otherwise transfer any portion of ECS (or any
associated information) in whole or in part to any other Person.
8. Company represents and warrants, with respect to all ECS Transactions submitted for processing by
Elavon, that (i) the Customer has duly authorized the debiting of the Customer’s account for the
amount of the ECS Transaction in accordance with Laws and ECS Rules, (ii) the Transaction
represents an obligation of the Person who is submitting a Customer payment, and (iii) the ECS
Transaction is for merchandise actually sold or rented, for services actually rendered, or for the
actual amount due and owing from the Customer to Company, in each case for the actual price of
such merchandise or services (including tax) or for the actual amount due and owing to Company.
Company represents and warrants that no portion of any ECS Transaction involves any element of
Company’s extension of credit.
9. Company may not use ECS for merchandise returns or refunds, as ECS does not support this
function. Merchandise returns or refunds must be handled outside ECS by direct negotiation
between Company and the Customer.
10. Company is responsible to Elavon for any Transaction charged back by Elavon or its agent in
accordance with the Agreement, including the ECS MOG, and for any fines, penalties or
assessments incurred as a result of Company’s non-compliance with Laws or the ECS Rules.
Company agrees to immediately pay to Elavon or its agent (by means of debit or set-off initiated by
Elavon or its agent, submission of payment by Company, or otherwise, at the sole option of Elavon),
107
TOS201702 TERMS OF SERVICE
36 SECTION B: ELECTRONIC CHECK SERVICES
an amount equal to the amount of any ECS Transaction that is stopped, not settled, or charged back,
as well as any related fees and charges.
11. Company must fully cooperate with all parties in the resolution of Customer disputes, as well as
Chargebacks, returns, adjustments, representments, and errors in accordance with the ECS Rules and
Laws.
12. Company is responsible for and will ensure that all information, including MICR data and payment
amounts, are accurately captured from a Paper Check in accordance with the applicable ECS Rules,
and that all such information is accurately reflected in the related Item Company sends to Elavon for
processing through ECS. Company will not submit for clearing or settlement any physical Paper
Check unless and until Elavon and Member have processed and settled a Chargeback to Company
with respect to any Items created from such Paper Check.
13. Company will not disclose to third parties any information related to ECS Transactions including,
but not limited to, Customer DDA information, driver’s license number, telephone number, or social
security number except as specified in the Agreement, including the ECS MOG. Company shall
keep all such information confidential and secure, in accordance with the Agreement and Laws.
14. Company does not have the right to use ECS data for any purpose other than to support the ECS
itself.
15. Company must treat all ECS documents, including, but not limited to, the Agreement, including the
ECS Rules, the ECS MOG and ECS collateral material or related guides, as confidential and
proprietary information and must protect it with the same degree of care as Company would protect
its own confidential and proprietary information and as further specified in the Agreement.
16. Company’s Agreement and use of the ECS may be terminated immediately by Elavon for failure to
comply with the terms of the TOS, the Agreement or Laws.
108
TOS201702 TERMS OF SERVICE
SECTION C: TOKENIZATION SERVICES 37
SECTION C – TOKENIZATION SERVICES
If Company has selected Tokenization Services, Company shall be subject to this Section C in addition to the terms
and conditions of Section A of this TOS. The terms and conditions for Tokenization Services are set forth in the
Agreement and the Operating Guide, incorporated herein. In the course of its acceptance and use of the
Tokenization Services, Company hereby agrees to the following terms and conditions governing the Tokenization
Services:
1. For the payment of fees for the Tokenization Services, Elavon shall provide Tokenization Services
to Company, which shall consist of a tokenization feature pursuant to which Elavon will provide
Company with Tokens in substitution for Credit Card and Debit Card account numbers. More
specifically, under the Tokenization Services, when a Credit Card or Debit Card account number
associated with a Transaction is transmitted from Company to Elavon, Elavon will:
a. generate a Token;
b. associate the Token with the account number; and
c. send the Token, instead of account number, back to Company in the Transaction
authorization response message.
2. The account number associated with each Token under the Tokenization Services will be available
to Company until three (3) years after the expiration or termination of the Agreement (the “Token
Validity Period”). During the Token Validity Period, the Token, rather than the associated account
number, may be submitted by Company to Elavon to process additional Transactions to the Credit
Card or Debit Card associated with such Token across all Company locations. Company
acknowledges that the Tokens will be formatted in Elavon’s reasonable discretion and may not be
compatible with other Company systems, equipment, communications devices, databases and/or
services.
3. Company shall cause the appropriate Hardware, including POS Devices and any hardware provided
by or on behalf of Elavon from time to time, to be readily available for use at all Company locations
that are the recipients or users of the Tokenization Services.
4. Company acknowledges that Elavon does not store Credit Card or Debit Card expiration dates. In
order to use a Token to process a Transaction, Company must provide the Token (in lieu of a
account number) together with the expiration date for the original Credit Card or Debit Card.
5. Company may request a reversal of the Tokenization process as follows:
a. To reverse the Tokenization process on an individual Token basis, Company may access an
Elavon web portal and, with appropriate authentication credentials, retrieve the account
number associated with any Token.
b. To reverse the Tokenization process on a bulk basis (i.e., in excess of 100 Tokens at a time),
an officer of Company must make a request in writing to Elavon and provide Elavon with the
Tokens for which Company wishes to reverse the Tokenization process. Elavon will provide
Company with an encrypted file containing the account numbers associated with such Tokens
within thirty (30) days of receiving the request.
6. DISCLAIMER OF WARRANTIES. WITH RESPECT TO THE TOKENIZATION SERVICES,
THE HARDWARE, AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY,
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT OR ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE. THE TOKENIZATION SERVICES,
HARDWARE AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY,
PROVIDED TO COMPANY ARE PROVIDED “AS IS”. COMPANY ACKNOWLEDGES AND
AGREES THAT IT IS NOT RELYING ON ANY STATEMENT, PROMISE, OR
109
TOS201702 TERMS OF SERVICE
38 SECTION C: TOKENIZATION SERVICES
REPRESENTATION, EITHER ORAL OR WRITTEN, MADE BY OFFICERS, SALES
PERSONNEL, OR AGENTS OF ELAVON OR MEMBER, EXCEPT AS EXPRESSLY SET
FORTH IN THE AGREEMENT, INCLUDING THIS SECTION C, WHICH WOULD
SUPPLEMENT, EXPLAIN, INTERPRET, MODIFY OR EXPAND THE TERMS AND
CONDITIONS OF THIS AGREEMENT, THIS SECTION C, OR ANY SALES LITERATURE OR
WRITTEN PROPOSALS. COMPANY ACKNOWLEDGES AND UNDERSTANDS THAT NO
EXPRESS WARRANTY WITH RESPECT TO THE TOKENIZATION SERVICES, THE
HARDWARE AND LICENSED PRODUCTS (INCLUDING ANY SOFTWARE), IF ANY, IS
CONTAINED OR CREATED IN ANY ORAL STATEMENT OR IN ANY WRITING OTHER
THAN THE EXPRESS WRITTEN PROVISIONS OF THIS SECTION C.
7. LIABILITY. Except as otherwise expressly provided herein, in no event shall Elavon be liable
hereunder for (a) any loss of profits or other economic loss of whatever nature, or any indirect,
special, consequential, incidental or other similar damages arising out of any claim of whatever
nature relating to the Tokenization Services provided pursuant to this Agreement or to any
obligations, acts, events, or occurrences pursuant to, preliminary to or incidental to the Tokenization
Services provided pursuant to this Agreement, or (b) any liabilities of Company to third parties
resulting from any failure of Elavon, any Hardware or any software, documentation or other related
materials (whether provided by Elavon or a third party) to perform as required under the terms of
this Section C to the Agreement. In no event shall Elavon's licensors, contractors, service providers
or third party beneficiaries have any indemnification obligations or be liable pursuant to this Section
C for any damages, including, without limitation, any indirect, special, consequential, incidental or
other similar damages arising out of any claim of whatever nature relating to the Tokenization
Services provided pursuant to this Agreement or to any obligations, acts, events, or occurrences
pursuant to, preliminary to or incidental to the Tokenization Services provided pursuant to this
Agreement.
110
TOS201702 TERMS OF SERVICE
SECTION D: FANFARE SERVICES 39
SECTION D – FANFARE SERVICES
If Company has selected Fanfare Services, Company shall be subject to, and shall comply with, this Section D in
addition to the terms and conditions of Section A of this TOS. The terms and conditions for Fanfare Services are set
forth in the Agreement and the Operating Guide, incorporated herein. In the course of its acceptance and use of the
Fanfare Services, Company hereby agrees to the following terms and conditions governing the Fanfare Services:
1. GENERAL PROVISIONS
a. Elavon will host and make available to Company the Fanfare Web Portal.
b. Company must use Supported Hardware in order to make full use of the Fanfare Services, and
certain or all Fanfare Services may be unavailable or may function improperly if Company does not
use them in connection with Supported Hardware. Company may obtain a current list of Supported
Hardware from Elavon upon request, which Elavon may update from time to time. Elavon shall
have no responsibility or liability in connection with the performance or non-performance of the
Fanfare Services, including in connection with any errors or malfunctions that may occur in
connection with the Fanfare Services, if Company uses the Fanfare Services with any POS Devices
that are not Supported Hardware.
c. Company shall not acquire any intellectual property rights and/or any goodwill, know-how or any
other proprietary rights in any form whatsoever or howsoever in the Fanfare Platform or the Fanfare
Services. Any and all intellectual property rights in and to the Fanfare Platform or the Fanfare
Services, and related goodwill, know-how and other proprietary rights are and shall remain the
absolute exclusive property of Elavon and/or its licensors.
d. Company will (i) cooperate with Elavon in connection with the Fanfare Services, and (ii) provide
Elavon with reasonably requested information and access (which may be remote access) to
equipment and to Company’s personnel for purposes of facilitating setup of POS Devices for use in
connection with the Fanfare Services.
e. Company shall use all reasonable means to prevent any unauthorized access to or use of the Fanfare
Platform and the Fanfare Services, and if such access or use occurs, Company shall notify Elavon
immediately.
f. Company acknowledges and agrees that it is Company’s sole responsibility to comply with all Laws
related to its use of the Fanfare Services and all Laws governing its relationships with Customers and
use of any Customer Data in connection with the Fanfare Services, including (i) the collection,
storage and use of Customer Data for promotional or marketing purposes (including the compliance
of any such storage or use with Company’s applicable privacy policies and terms and conditions),
(ii) the distribution (including by e-mail or short message service (SMS)) of marketing or
promotional materials to Customers (including through any use of communication or marketing
services made available to Company through the Fanfare Platform), and (iii) the issuance, sale,
distribution, use and acceptance of gift cards, gift certificates, Loyalty Cards or Prepaid Cards that
may be applicable to Fanfare Gift Cards (including all laws related to purchase, service and
dormancy fees, Laws relating to expiration dates, Laws governing the treatment of unused or
unclaimed funds or other property and Laws related to money transmission). Further, Company
agrees to comply in a timely manner with any such Laws.
g. Company acknowledges and agrees that Elavon has no responsibility for recording or storing any
Customer Data or information related to the sale of any Fanfare Gift Card until such information has
been received and validated by Elavon.
h. Company understands and agrees that its data security obligations under the Agreement apply to any
Customer Data it collects or receives in connection with the Fanfare Services, and Company agrees
to comply with such data security obligations with respect to all Customer Data Company may
collect, access or receive in connection with the Fanfare Services.
111
TOS201702 TERMS OF SERVICE
40 SECTION D: FANFARE SERVICES
i. Company will exclusively use Elavon (including Elavon-designated service providers) for services
similar to the Fanfare Services, and Company will not receive services similar to the Fanfare
Services from any third parties not approved by Elavon in writing.
j. Company or Elavon may terminate the Fanfare Services for any of the reasons that Elavon or
Company, as applicable, may terminate the Agreement.
k. DISCLAIMER OF WARRANTIES. COMPANY UNDERSTANDS AND AGREES THAT THE
FANFARE PLATFORM AND THE FANFARE SERVICES ARE PROVIDED ON AN “AS IS”
AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ELAVON
DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE FANFARE PLATFORM OR
FANFARE SERVICES WILL COMPLY WITH ANY APPLICABLE LAWS GOVERNING THE
COLLECTION OF CUSTOMER INFORMATION, THE USE OF CUSTOMER INFORMATION
FOR MARKETING OR PROMOTIONAL PURPOSES, OR THE ISSUANCE, SALE
DISTRIBUTION, USE OR ACCEPTANCE OF ANY FANFARE GIFT CARD. ELAVON WILL
NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO COMPANY’S COMPUTER
SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM COMPANY’S
ACCESS TO OR USE OF THE FANFARE PLATFORM OR THE FANFARE SERVICES.
ELAVON MAKES NO WARRANTY THAT THE FANFARE PLATFORM OR THE FANFARE
SERVICES WILL MEET COMPANY’S REQUIREMENTS OR BE AVAILABLE ON AN
UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED FROM ELAVON OR THROUGH THE
FANFARE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE
HEREIN. ELAVON IS NOT RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR
USE OF ANY PROMOTIONAL OFFER, REWARDS VALUE, OTHER FANFARE LOYALTY
PROGRAM OFFER, OR ANY FANFARE GIFT CARD. FURTHER, ELAVON MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OR PROFITABILITY
FOR COMPANY OF ANY (I) OFFER, PROMOTION OR REWARD ADOPTED BY COMPANY
IN CONNECTION WITH ITS FANFARE LOYALTY PROGRAM, OR (II) FANFARE GIFT
CARD ARRANGEMENT OR SOLUTION ADOPTED BY COMPANY IN CONNECTION WITH
ITS FANFARE GIFT CARD PROGRAM, IN EACH CASE EVEN IF ELAVON PROMOTES
SUCH A SOLUTION AS COMMON OR HISTORICALLY SUCCESSFUL IN COMPANY’S
INDUSTRY OR MARKET.
l. LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELAVON
AND EACH OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS,
PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF
PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM
COMPANY’S ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE FANFARE
PLATFORM OR THE FANFARE SERVICES, OR RESULTING FROM COMPANY’S
PROVISION OF PROMOTIONS, OFFERS, REWARDS OR FANFARE GIFT CARDS TO
CUSTOMERS IN CONNECTION WITH THE FANFARE SERVICES, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL
THEORY, WHETHER OR NOT ELAVON HAS BEEN INFORMED OF THE POSSIBILITY OF
SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE
FAILED OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION SHALL
REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR ANY
TERMINATION OF THE AGREEMENT FOR ANY REASON WHATSOEVER AND EACH OF
THE PROVISIONS OF THIS SECTION SHALL OPERATE SEPARATELY IN ITSELF AND
SURVIVE INDEPENDENTLY OF OTHERS.
m. All Company locations, including chain locations, will be boarded on Elavon’s system pursuant to
the paperwork submitted by Company to Elavon. However, in the event of an error or omission of
fees payable by Company on the submitted paperwork, the setup fees and other monthly fees applied
to the locations during the initial set up or subsequent negotiations will be applied to such locations.
112
TOS201702 TERMS OF SERVICE
SECTION D: FANFARE SERVICES 41
n. In the event that a particular location closes or changes its Merchant Identification Number (MID),
Company agrees that Elavon may bill the Primary Fanfare Company for any fees associated with
subsequent transactions processed on Fanfare Gift Cards activated by the closed MID. This would
apply to any system generated transactions including, but not limited to, deduction and points
conversion transactions. Monthly fees billed for Fanfare Services provided with respect to the closed
location may also be billed to the Primary Fanfare Company.
o. Fanfare Services are not available to Company’s located in Canada or Puerto Rico.
2. FANFARE LOYALTY SERVICES PROVISIONS
a. Elavon will host the Fanfare Loyalty Website.
b. Company acknowledges that, to enroll in the Fanfare Loyalty Program and receive promotional
offers and/or rewards, a Customer must enroll with Company during a point-of-sale transaction at
Company or by visiting Company’s Fanfare Loyalty Program Website, in each case in accordance
with the Customer enrollment procedures described in the Operating Guide.
c. Company is responsible for creating (i) a set of terms and conditions governing its Fanfare Loyalty
Program, and (ii) a privacy policy addressing Company’s collection and usage of Customer Data.
Elavon will post (which may be by cross-reference link) Company’s terms and conditions and
privacy policy, on Company’s behalf, on the Fanfare Loyalty Website hosted by Elavon. Elavon
will provide Company with Model Documents that Company may adapt and use to govern its
Customers’ participation in the Fanfare Loyalty Program. Elavon makes no warranties with respect
to the legality or legal sufficiency of the Model Documents. In addition, Company acknowledges
that it has sole responsibility for ensuring compliance with all applicable Laws and any pre-existing
commitments or obligations of Company to Customers in connection with (i) Company’s use of the
Model Documents; (ii) the content of the Model Documents, and (iii) any adaptations that Company
may make to the Model Documents in developing its own Customer-facing terms and conditions and
privacy policy regarding the Fanfare Loyalty Program. Company acknowledges that Elavon will not
review Company’s privacy policy or terms and conditions governing its Fanfare Loyalty Program
for any purpose, including specifically for purposes of assessing the legality or legal sufficiency of
such disclosures, regardless of whether Company uses the Model Documents, in whole or in part.
Company represents, warrants and covenants to Elavon that the Customer terms and conditions and
privacy policy governing Company’s Fanfare Loyalty Program will (i) establish sufficient rights for
Company and Elavon to exercise all rights and perform all obligations contemplated under the
Agreement, including the Operating Guide, (ii) prevent Company from sharing Customer Data with
any third party, affiliated or unaffiliated, except as permitted by applicable Law and (iii) not be
inconsistent with any provision included in the Model Documents provided by Elavon unless Elavon
has granted its prior written consent to any such inconsistency. Company must notify Elavon, in
writing prior to the launch of Company’s Fanfare Loyalty Program, of the Customer-facing terms
and conditions and privacy policy Company wishes Elavon to post (by cross-reference link) to
Company’s Fanfare Loyalty Website. If Company does not so notify Elavon of modified or
different Customer-facing terms and conditions and/or privacy policy that should govern Company’s
Fanfare Loyalty Program prior to the launch of Company’s Fanfare Loyalty Program, Company will
be deemed to have instructed Elavon to post the Model Documents, in the form provided by Elavon
to Company, as Company’s Customer-facing terms and conditions and privacy policy. Company
agrees that it has fully reviewed and approved, as appropriate for Company and its Customers, the
Model Documents Elavon posts to Company’s Fanfare Loyalty Website.
d. Company represents and warrants that it will only use Customer Data in accordance with its Fanfare
Loyalty Program privacy policy and terms and conditions. In addition, Company shall obtain for the
benefit of Elavon and its licensor(s) any necessary consents, approvals or notifications required for
Elavon or its licensor(s) to use any Customer Data for the purpose of providing Customers with
services related to the Fanfare Loyalty Program. Company understands that Elavon will have the
authority to use and share Customer Data as described in the Elavon Fanfare Privacy Policy
available at www.elavon.com.
113
TOS201702 TERMS OF SERVICE
42 SECTION D: FANFARE SERVICES
e. Company understands and agrees that Elavon may use the Fanfare Loyalty Website for purposes of
obtaining Customer consent to use Customer Data in accordance with the Elavon Fanfare Privacy
Policy. Company further agrees that Elavon may use Customer Data for any of the purposes
permissible under the Elavon Fanfare Privacy Policy.
f. Company agrees that it will not share Customer Data with any third parties, including any Company
affiliates, without Elavon’s prior written consent.
g. Company agrees that it will not collect or receive Customer Data from any source other than directly
from the Customer (including as a result of any Customer transactions at Company) or Elavon, and
Company agrees that it shall not supplement or enhance any Customer Data collected in connection
with the Fanfare Loyalty Program with any data or information from sources other than the
Customer or Elavon.
3. FANFARE GIFT CARD SERVICES PROVISIONS
a. Company agrees that all Fanfare Gift Cards will be printed by Elavon or an Elavon-approved
vendor.
b. Company agrees to comply with the Graphic Specifications and Procedures provided by Elavon, as
the same may be updated by Elavon in its sole discretion from time to time.
c. Company authorizes Elavon to initiate credit and debit entries among Company’s individual chain
locations for any Transactions that change the balance of a Fanfare Gift Card. In the event Elavon is
unable to accomplish a credit or debit entry to reflect the effect of a Transaction, Company further
authorizes Elavon to credit and/or debit the designated Master Account or Primary Fanfare
Company. Company also understands that Elavon may, in its sole discretion, offset any debits
against the related credit Transactions of the applicable chain or Company location. Both Company
and the individual chain locations agree to pay related direct settlement fees.
114
TOS201702 TERMS OF SERVICE
SECTION E – AMERICAN EXPRESS ACCEPTANCE PROGRAM 43
SECTION E – AMERICAN EXPRESS® ACCEPTANCE PROGRAM
If Company has elected to accept American Express Payment Devices through the OptBlue® Program, Company
shall be subject to, and shall comply with, this Section E in addition to the terms and conditions of Section A of the
TOS, and the Operating Guide. In the course of its acceptance of American Express Payment Devices, Company
hereby agrees to the following terms and conditions:
1. GENERAL PROVISIONS
a. Company hereby acknowledges and agrees that for purposes of acceptance of American Express in
the United States, the American Express Merchant Operating Guide is hereby incorporated by
reference into this Agreement and is available at www.americanexpress.com/merchantopguide. For
the purposes of acceptance of American Express in Canada, the American Express Program
Merchant Guide is hereby incorporated by reference into this Agreement and is available at
www.americanexpress.ca/merchantguide. Company will comply with the terms of the American
Express Merchant Operating Guide or American Express Program Merchant Guide, as applicable.
b. Except as set forth herein, the terms of this Section E supplement, rather than displace, the terms of
the remainder of the Agreement. To the extent there is any direct conflict between the terms of this
Section E and the Operating Guide or TOS, the terms of this Section E shall govern solely with
respect to the Company’s acceptance of American Express Payment Devices and solely to the extent
necessary to resolve the conflict. For the avoidance of doubt, in the event that compliance with this
Section E would cause you to violate the American Express Merchant Operating Guide or American
Express Program Merchant Guide, as applicable, and/or Laws, you should comply with the
American Express Merchant Operating Guide and/or Laws.
c. For all purposes of this Agreement, the American Express Merchant Operating Guide and the
American Express Program Merchant Guide (as applicable) are considered to be part of the Credit
Card Rules.
d. Company authorizes Elavon to submit American Express transactions to, and receive settlement
from, American Express on behalf of Company.
e. Company acknowledges and agrees that (i) Elavon may disclose American Express Transaction Data
(which for purposes of this Section E shall have the same definition as “Transaction Data” in the
applicable American Express Guide), Company Data (as defined below), and other information
about Company to American Express, (ii) American Express may use such information to perform
its responsibilities in connection with the American Express OptBlue® Program, promote the
American Express Network, perform analytics and create reports, and for any other lawful business
purpose, including marketing purposes, and (iii) American Express may use the information
obtained in this application at the time of setup to screen and/or monitor Company in connection
with American Express Card marketing and administrative purposes. If Company has provided a
wireless phone number in connection with this Agreement, Company hereby agrees that it may be
contacted at that number and the communications sent may include autodialed text messages or
automated prerecorded calls. If Company has provided a fax number, Company hereby agrees that it
may be sent fax communications. To opt out of American Express-related marketing
communications, Company may contact Elavon as described in this Agreement. For purposes of this
Section E, “Company Data” means names, postal and email addresses and names of the authorized
signer of Company and similar identifying information about Company.
f. Company hereby agrees that, in the event that Company becomes a “High Charge Volume
Merchant” (as defined below), Company may be converted from the OptBlue® Program to a direct
American Express Card acceptance relationship with American Express, and upon such conversion,
(i) Company will be bound by American Express’s then-current card acceptance agreement, and (ii)
American Express will set pricing and other fees payable by Company for American Express Card
acceptance. “High Charge Volume Merchant” for purposes of this Section E means a Company
115
TOS201702 TERMS OF SERVICE
SECTION E – AMERICAN EXPRESS ACCEPTANCE PROGRAM 44
processing with either (i) greater than C$500,000 in American Express charge volume in a rolling
twelve (12) month period if Company is located in Canada or (ii) greater than US$1,000,000 in
American Express charge volume if Company is located in the United States. For clarification, if
Company operates multiple establishments, the American Express charge volume from all
establishments in the United States, or if a Canadian Company in Canada, shall be summed to
together when determining whether Company has exceeded the thresholds above.
g. Company shall not assign to any third party any American Express-related payments due to it under
this Agreement, and all indebtedness arising from American Express Charges (as defined below)
will be for bona fide sales of goods and services (or both) at its establishments (as defined below)
and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that
Company may sell and assign future American Express transaction receivables to Elavon, its
Affiliates, or any other cash advance funding source that partners with Elavon or its affiliated
entities, without consent of American Express.
h. Company hereby agrees that American Express shall have third party beneficiary rights, but not
obligations, to enforce the Agreement against Company to the extent applicable to American
Express processing. Termination of American Express card acceptance shall have no direct or
indirect effect on Company’s rights to accept other card brands. To terminate American Express
acceptance, without penalty, Company may contact Elavon customer service as described in this
Agreement.
i. Without limiting any other rights provided herein, Elavon shall have the right to immediately
terminate Company’s acceptance of American Express cards upon request of American Express.
j. Glossary. As used in this Section E, the capitalized terms set forth below shall have the following
definitions:
i. American Express Payment Device: (i) Any Card, account access device, or Payment
Device or service bearing American Express or American Express Affiliate’s Mark and
issued by an Issuer or (ii) a Card Number.
ii. American Express Acceptance Program: The American Express OptBlue® Program,
pursuant to which a Company is permitted to accept Transactions initiated with American
Express Payment Devices through Elavon.
iii. American Express Merchant Operating Guide: The Merchant Operating Guide
published by American Express containing the rules and regulations of American Express
applicable to the American Express Acceptance Program in the United States, together
with all technical specifications, documentation, and other policies or procedures
incorporated therein and currently located at
http://www.americanexpress.com/merchantopguide. For all purposes of this Agreement,
the American Express Merchant Operating Guide is considered to be part of the Credit
Card Rules.
iv. American Express Program Merchant Guide: The American Express Program
Merchant Guide published by American Express containing the rules and regulations of
American Express applicable to the American Express Acceptance Program in Canada,
together with all technical specifications, documentation, and other policies or procedures
incorporated therein and currently located at www.americanexpress.ca/merchantguide.
For all purposes of this Agreement, the American Express Program Merchant Guide is
considered to be part of the Credit Card Rules.
116
TOS201702 TERMS OF SERVICE
SECTION F – SAFE-T FOR SMB SERVICES 45
SECTION F – SAFE-T FOR SMB SERVICES
If Company has elected to receive SAFE-T for SMB Gold or SAFE-T for SMB Silver, Company shall be subject to,
and shall comply with, this Section F in addition to the terms and conditions of Section A of this TOS in connection
with its receipt such services. For the avoidance of doubt, this Section F shall not apply to any tokenization or
encryption solution offered by Elavon other than the SAFE-T for SMB Gold and SAFE-T for SMB Silver offerings,
and to the extent terms governing any other such tokenization or encryption solution are separately provided to
Company, those terms, rather than this Section F, shall apply. In the course of its acceptance and use of the SAFE-T
for SMB Services (as defined below), Company hereby agrees to the following terms and conditions:
1. DESCRIPTION OF SAFE-T FOR SMB SERVICES. Subject to the terms and conditions of this
Section F and the Agreement, Elavon shall provide Company with the following services
(collectively, the “SAFE-T for SMB Services”):
a. Encryption Services. Transaction Receipts properly encrypted by Company using Elavon-
provided encryption software and Elavon-approved Hardware (as defined below) will be
decrypted by Elavon in accordance with the terms and conditions of this Section F and the
Agreement (such services, the “Encryption Services”).
b. Tokenization Services. Elavon will provide Company with Tokens in substitution for Credit
Card, Debit Card and Gift Card account numbers. More specifically, when a Credit Card, Debit
Card or Gift Card account number associated with a Transaction is transmitted from Company
to Elavon, Elavon will:
i. Generate a Token;
ii. Associate the Token with the account number in a secure manner; and
iii. Send the Token, instead of the account number, back to the Company in the Transactions
authorization response message.
As long as Company is receiving the SAFE-T for SMB Services, Company may submit the
Token, rather than the associated account number, to Elavon to process additional Transactions
to the Credit Card, Debit Card or Gift Card associated with such Token at any of Company’s
locations.
Note: The SAFE-T for SMB Services only apply to Card Present and mail order/telephone order
Transactions, and do not apply for Electronic Commerce Transactions. For mail order/telephone
order transactions, information must be hand-keyed into the POS Device for SAFE-T For SMB
Services to apply.
2. COMPANY RESPONSIBILITIES.
a. Company shall cause the appropriate Hardware, including POS Devices and any other Hardware
provided by or on behalf of Elavon from time to time, to be readily available for use at all
Company locations that are the recipients or users of the SAFE-T for SMB Services. Company
shall be solely responsible for ensuring that, for every Transaction, (i) it utilizes only such
Hardware that is included on Elavon’s then-current list of Hardware compatible with the SAFE-
T for SMB Services for every Transaction and (ii) the SAFE-T for SMB Services are enabled on
such Hardware.
b. Company acknowledges that Elavon does not store Payment Device expiration dates. In order
to use a Token to process a Transaction, Company must provide the Token (in lieu of an
account number) together with the expiration date for the original Payment Device, if available.
c. Company must cooperate with Elavon to promptly take any action necessary to enable the
SAFE-T for SMB Services on Company’s Hardware, including promptly downloading,
117
TOS201702 TERMS OF SERVICE
SECTION F – SAFE-T FOR SMB SERVICES 46
installing and implementing any software or updates thereto in accordance with Elavon’s
instructions. Company acknowledges and agrees that it may not be able to receive the benefits
of the SAFE-T for SMB Services to the extent that it does not take such actions in accordance
with Elavon’s instructions.
3. LIABILITY; DISCLAIMER OF WARRANTIES.
a. COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE LIMITATION
OF LIABILITY AND DISCLAIMER OF WARRANTIES CONTAINED IN SECTION A OF
THIS TOS SHALL APPLY WITH RESPECT TO THE SAFE-T FOR SMB SERVICES AND
TO ANY HARDWARE AND SOFTWARE PROVIDED IN CONNECTION WITH THE
SAFE-T FOR SMB SERVICES. ALL HARDWARE AND SOFTWARE PROVIDED IN
CONNECTION WITH THE SAFE-T FOR SMB SERVICES IS PROVIDED “AS IS”.
NOTWITHSTANDING THE FOREGOING, THE TERMS OF ANY EXPRESS LIMITATION
OF LIABILITY OR DISCLAIMER OF WARRANTIES CONTAINED IN ANY ADDENDUM
TO THE AGREEMENT SHALL CONTROL WITH RESPECT TO THE SERVICES AND
PRODUCTS (INCLUDING HARDWARE AND SOFTWARE), IF ANY, PROVIDED
PURSUANT TO SUCH ADDENDUM TO THE AGREEMENT.
b. Notwithstanding the forgoing, subject to the eligibility requirements provided in Section A of
this TOS, companies that have selected the Silver level of the SAFE-T for SMB Services will be
eligible for Data Breach Reimbursement up to a maximum amount of $100,000, and companies
that have selected the Gold Level of SAFE-T for SMB Services will be eligible for Data Breach
Reimbursement of up to a maximum amount of $250,000, provided that such companies have
properly installed all software and updates made available by Elavon in connection with the
SAFE-T for SMB Services and the SAFE-T for SMB Services are actually enabled on the
Company’s Hardware.
4. TERM AND TERMINATION.
a. Term. Unless terminated as set forth below, the terms of this Section F will remain in effect
from the date of acceptance of the Company Application or other form by which Company
elects to receive the SAFE-T for SMB Services, as applicable, by Elavon and Member until the
expiration or termination of the Agreement.
118
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 47
SECTION G: GLOSSARY
ABA Routing Number: The ABA number that uniquely identifies the bank on which a check is drawn.
ACH: Automated Clearing House, the funds transfer system governed by the rules of NACHA. ACH
allows financial institutions to clear interbank entries electronically.
ACH Network: The funds transfer system governed by the ACH Rules. The ACH Network allows
participating depository financial institutions to clear interbank entries electronically.
ACH Rules: The NACHA Operating Rules and Operating Guidelines, which govern the interregional
exchange and settlement of ACH transactions.
Agreement: The TOS, including the Company Application, the Operating Guide, the Electronic Check
Service Merchant Operating Guide (if applicable), any Company Agreement or Company Processing
Agreement, and any other guides or manuals provided to Company from time to time, and all additions to,
amendments and modifications of, and all replacements to any of them, as applicable.
American Express: The American Express Company or Amex Bank of Canada and, to the extent
applicable in Canada, The American Express Company.
Authorization Code: The code sent by the Issuer in response to an Authorization request that indicates
whether the Transaction is approved. Responses may include: “Approved,” “Declined,” “Declined Pick-
Up,” or “Referral” (“Call Auth”).
Bankruptcy Proceeding: With respect to an entity, (i) that the entity or any subsidiary of such entity will:
(a) commence a voluntary case under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect); (b) file or be subject to a petition seeking to take advantage
of any other applicable state or federal laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts or any other similar conservatorship or
receivership proceeding instituted or administered by any regulatory agency or body; (c) consent to or fail
to contest, in a timely and appropriate manner, any petition filed against it in an involuntary case under
such bankruptcy laws or other applicable laws; (d) 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 trustee, receiver, custodian,
liquidator, or similar entity of such entity or of all or any substantial part of its assets, domestic or foreign;
(e) admit in writing its inability to pay its debts as they become due; (f) make a general assignment for the
benefit of creditors; (g) make a conveyance fraudulent as to creditors under any applicable state or federal
laws; or (h) take any action for the purpose of effecting any of the foregoing; or (ii) that a case or other
proceeding will be commenced against the entity or any subsidiary of such entity in any court of competent
jurisdiction, or through any regulatory agency or body, seeking: (x) relief under the Bankruptcy Code of
1978, as amended, or other federal bankruptcy laws (as now or hereafter in effect) or under any other
applicable laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
composition, or adjustment of debts; or (y) the appointment of a trustee, receiver, custodian, liquidator or
the like of such entity or of all or any substantial part of the assets, domestic or foreign, of such entity or
any other similar conservatorship or receivership proceeding instituted or administered by any regulatory
agency or body.
Biller Direct Services: The services offered by Elavon described herein pursuant to which Transactions
are presented for authorization, clearing and settlement in accordance with the Agreement.
119
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 48
Canadian Payments Association (CPA): The national association that establishes standards, rules, and
procedures and maintains a funds transfer system to enable depository financial institutions to exchange
electronic payments.
Card Present: The processing environment where the Payment Device is physically presented to the
Company by the Cardholder as the form of payment at the time of Transaction.
Cardholder: The individual in whose name a Payment Device has been issued and any authorized user of
such Payment Device.
Cardholder Data: Has the meaning stated in the Payment Card Industry (PCI) Data Security Standard
(DSS) and Payment Application Data Security Standard (PA-DSS) Glossary of Terms, Abbreviations, and
Acronyms.
Cardholder Information Security Program (CISP): Visa’s data security regulations to protect
Cardholder account data and other data security best practices. The exact requirements for CISP can be
found at www.visa.com/cisp.
Chargeback: A Transaction disputed by a Customer or Issuer pursuant to the Payment Network
Regulations. For purposes of Section B, “Chargeback” means (i) a sales Transaction disputed by a
Customer or an Item not in compliance with Conversion with Guarantee warranty provisions or ECS Rules;
(ii) for all Service Levels other than Conversion with Guarantee, the face amount of any Item that is
returned by the Drawee Bank or an ECS Association to Elavon unpaid and that is ineligible for
resubmission to the Drawee Bank or the ECS Association, including any Item returned for non-sufficient or
uncollected funds after the third presentment; and (iii) for all Service Levels, an Item that is not in
compliance with Company’s obligations, representations and warranties under the Agreement or the TOS.
Check Reader/Imager: A device certified by Elavon that electronically captures the MICR line and/or an
image of the Paper Check.
Company: The business entity indicated on the Company Application that provides goods and/or services
to Customers, or that accepts payments from Customers.
Company Agreement (Company Processing Agreement): Any agreement that Company has entered into
for Processing Services, which agreement is either with Elavon or another entity that, directly or indirectly,
transferred its rights under such agreement to Elavon.
Company Application: The Company Application and any additional document containing information
regarding Company’s business that is submitted to Elavon and Member in connection with Company’s
application for Processing Services, including any additional location form(s) and any documents submitted
by Company as a part of the bid process, if applicable.
Confidential Information: All information or items proprietary to Elavon or Member, of which Company
obtains knowledge or access as a result of Company’s relationship with Elavon and Member, including, but
not limited to, the following types of information and other information of a similar nature (whether or not
reduced to writing): scientific, technical, or business information, product makeup lists, ideas, concepts,
designs, drawings, techniques, plans, calculations, system designs, formulae, algorithms, programs,
software (source and object code), hardware, manuals, test procedures and results, identity and description
of computerized records, identity and description of suppliers, customer lists, processes, procedures, trade
secrets, “know-how,” marketing techniques and material, marketing and development plans, price lists,
pricing policies, and all other financial information.
Credit Card: A card or device associated with a revolving line of credit that may be used to purchase
goods and services from Company or to pay an amount due to Company or to obtain cash advances.
Credit Card Associations: (i) Visa; (ii) MasterCard; (iii) American Express; (iv) Discover Network; (v)
Diners Club International Ltd.; (vi) JCB International Co., Ltd.; (vii) China UnionPay Co., Ltd; and (viii)
120
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 49
any other organization or association that hereafter contracts with Elavon to authorize, capture, and settle
Transactions effected with Credit Cards issued or sponsored by such organization or association, and any
successor organization or association to any of the foregoing.
Credit Card Rules: All applicable rules and operating regulations of the Credit Card Associations, and all
rules, operating regulations, and guidelines for Credit Card Transactions issued by Elavon from time to
time, including, without limitation, all amendments, changes and revisions made thereto from time to time.
Credit Transaction Receipt: A document, in paper or electronic form, evidencing a Company’s refund or
price adjustment to be credited to the Cardholder’s account and debited from Company’s DDA. This is
also known as a credit slip or credit voucher.
Customer: a client of Company who elects to conduct a payment Transaction with Company through
presentation of a Payment Device (including a Cardholder) or who participates in Company’s Fanfare
Loyalty Program.
Customer Data: Any information or data related to a Customer, including personal information, personally
identifying information and information about a Customer’s purchase Transactions at Company, collected
by Company and provided to Elavon or received by Elavon from a Customer in connection with the
Fanfare Loyalty Program or Elavon’s provision of the Fanfare Loyalty Services.
DDA (Demand Deposit Account): The commercial checking account at a financial institution acceptable
to Elavon designated by Company to facilitate payment for Transactions, Chargebacks, returns,
adjustments, fees, fines, penalties, assessments from the Payment Networks, Leased Equipment payments
and other payments due under the Agreement. In the instance of a Debit Card or ATM Card, this refers to
the Cardholder’s deposit account.
Debit Card: A card or device bearing the symbol(s) of one or more EFT Networks or Credit Card
Associations, which may be used to purchase goods and services from Company or to pay an amount due
to Company by an electronic debit to the Cardholder’s designated deposit account. A “Debit Card” includes
(i) a card or device that bears the symbol of a Credit Card Association and may be used to conduct
signature-based, offline debit Transactions; and (ii) a card or device that bears the symbol of an EFT
Network and can be used to conduct PIN-based, online debit Transactions.
Debit Card Rules: All applicable rules and operating regulations of the EFT Networks, and all rules,
operating regulations, and guidelines for Debit Card Transactions issued by Elavon from time to time,
including, without limitation, all amendments, changes, and revisions made thereto from time to time.
Diners: Diners Club International Ltd.
Discover: DFS Services LLC.
Discover Network: Discover Network, Inc.
Drawee Bank: The financial institution where a Customer maintains a checking account on which a Paper
Check that serves as the source document to generate an Item at the POS Device or payment for a
Transaction is drawn.
ECS Association: NACHA and any regional ACH association or network, the Federal Reserve (in its
processing of ACH entries or demand drafts or other legal replacements or substitutes for a paper check,
including under the Check Clearing for the 21st Century Act or under applicable provisions of the Uniform
Commercial Code), and any other organization or association Elavon uses in connection with the ECS that
is hereafter designated as an ECS Association by Elavon from time to time.
ECS Primer: The detailed information relating to ECS processes and implementation provided by Elavon
to Company, which must be used by Company in conjunction with the technical specifications and
121
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 50
certification requirements provided by Elavon to promote integrated point of sale system connectivity and
integration between Company and Elavon.
ECS Rules: All applicable rules and operating regulations of or applicable to the ECS Associations
(including the ACH Rules) and the ECS MOG, in each case including without limitation, all amendments,
changes, and revisions made thereto from time to time.
ECS Transaction: Any purchase, reversal/void, decline, Chargeback, or representment/resubmit pursuant
to the Electronic Check Service Rules.
EFT Networks: (i) Interlink Network Inc., Maestro U.S.A., Inc., STAR Networks, Inc., NYCE Payments
Network, LLC, PULSE Network LLC, ACCEL/Exchange Network, Alaska Option Services Corporation,
Armed Forces Financial Network, Credit Union 24, Inc., NETS, Inc., and SHAZAM, Inc.; (ii) (i) Interac
and the Interac Direct Payment service; and (iii) any other organization or association that hereafter
authorizes the Elavon and/or Member to authorize, capture, and/or settle Transactions effected with Debit
Cards, and any successor organization or association to any of the foregoing.
Elavon: As applicable, Elavon, Inc., a Georgia corporation, Elavon Canada Company, a company validly
existing and organized in Nova Scotia, and any affiliate or subsidiary of Elavon, Inc. that provides
Processing Services to a Company related to Transactions. Elavon is a registered member service provider
of each Member. Elavon may also be referred to as “Servicer” in the Agreement, the Operating Guide or
other documents provided to Company in connection with the Processing Services.
Elavon Fanfare Privacy Policy: Elavon’s privacy policy applicable to Elavon’s use of Customer Data
obtained from consenting Customers in connection with Company’s Fanfare Loyalty Program.
Electronic Commerce Transaction: A Transaction that occurs when the Cardholder uses the Internet to
make a purchase from a Company or Company uses the Internet to submit the Transaction for processing.
Electronic Gift Card (EGC): A special stored value card provided by or on behalf of Company that is
redeemable for merchandise, services or other Transactions.
Electronic Gift Card Services: The Processing Services provided by Elavon to companies with respect
to Electronic Gift Cards offered by such companies, as more fully described herein and the Operating
Guide.
Fanfare Enrolled Customer: A Customer of Company that has enrolled (as further described herein) to
participate in Company’s Fanfare Loyalty Program.
Fanfare Gift Card: A special card, code or device purchased by or provided to a Customer that is
redeemable for merchandise, services or other Transactions with Company.
Fanfare Gift Card Program: A program established and managed by Company using the Fanfare
Platform in accordance with the Agreement, including applicable provisions of the Operating Guide.
Fanfare Gift Card Services: Fanfare Gift Card Program setup and Processing Services provided by
Elavon and Member to Company as described in the Agreement and in the Operating Guide.
Fanfare Loyalty Program: A program established and managed by Company, using the Fanfare
Platform, through which Company may endeavor to promote Customer loyalty and increased spending by
offering promotions, rewards and incentives to Fanfare Enrolled Customers.
Fanfare Loyalty Services: A loyalty program platform that supports Company establishment of a Fanfare
Loyalty Program, Customer enrollment in the Fanfare Loyalty Program at Company’s point-of-sale,
establishment and maintenance of the Fanfare Loyalty Website, the ability to generate marketing
campaigns and offer promotions to Customers, and Processing Services related to redemption of Customer
122
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 51
rewards, in each case as described in the Agreement, including applicable provisions of the Operating
Guide.
Fanfare Loyalty Website: A Customer-facing website hosted by Elavon and co-branded by Elavon
(Fanfare) and Company through which (i) Customers that have not enrolled in Company’s Fanfare Loyalty
Program may enroll online as part of the registration process, (ii) Fanfare Enrolled Customers may access
Company’s Fanfare Loyalty Program disclosures, (iii) Fanfare Enrolled Customers may un-enroll in the
Fanfare Loyalty Program, or (iv) Fanfare Enrolled Customers that have registered through the website
may manage their Fanfare Loyalty Program accounts, in each case as described in the Agreement,
including the Operating Guide.
Fanfare Platform: The systems hosted directly or indirectly by Elavon through which (i) Company
establishes its Fanfare Loyalty Program and/or Fanfare Gift Card Program, and (ii) the Fanfare Services
are provided to Company.
Fanfare Services: The Fanfare Loyalty Services and/or Fanfare Gift Card Services provided by Elavon
and Member and used by Company in accordance with the Agreement.
Fanfare Web Portal: A web-based portal provided by Elavon through which Company may obtain
information and guides pertaining to the Fanfare Services and Fanfare Platform, and may access
Company-specific program metrics via dashboards, view information about a Customer’s purchase
Transactions at Company, create additional Customer offers and retrieve reports regarding Company’s
Fanfare Gift Card Program and/or Fanfare Loyalty Program, in each case as applicable to the Fanfare
Services elected by Company.
GA UCC: Georgia Uniform Commercial Code.
Glossary: This Section G of the TOS.
Graphic Specifications and Procedures: The requirements, specifications and procedures applicable to
standard and custom Electronic Gift Cards, including all artwork appearing or permitted to appear on
Electronic Gift Cards, as may be provided by Elavon to Company from time to time.
Guarantor: A Person that executes a Personal Guaranty for the benefit of Elavon and Member.
Hardware: POS Devices and other similar Hardware used by Company to accept Payment Devices,
including any Hardware provided by Elavon.
Interac: Interac Association.
Interac Direct Payment: The service provided by Interac to permit Customers to pay for goods and
services by debiting money directly from their accounts using a POS Device equipped with a PIN pad with
PIN verification.
Issuer: The financial institution or other entity that issued the Credit Card or Debit Card to the Cardholder.
JCB: JCB International Co., Ltd.
Laws: All applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding law
in effect from time to time.
Leased Equipment: The equipment and/or software and related license agreement(s) described in the
Company Application or the Agreement with all replacement parts, repairs, additions and accessories
included therein and/or affixed thereto.
Lessee: Company, when applicable.
Lessor: Elavon dba LADCO Leasing.
123
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 52
Loyalty Card: A device used to hold a currency and/or points value in a stored value program.
Master Account: The account (e.g. funds pool) that is used to hold the value of Electronic Gift Cards or
Fanfare Gift Cards, as applicable, that have been issued among a group or chain of merchants.
Alternatively, this may refer to the back-up account used to offset electronic payment, ACH or Canadian
Payments Association rejects or returns, if applicable.
MasterCard: MasterCard International Incorporated.
MasterCard Merchant Agreement: The Company Agreement that is a part of the Agreement and is
between Company, the Member of MasterCard and Elavon, if as part of the Program Company has
requested the ability to accept MasterCard Credit Cards. The Member of MasterCard is a party to the
MasterCard Merchant Agreement for purposes of compliance with the MasterCard Credit Card Rules while
Elavon is a member service provider of MasterCard and as such is also a party to the MasterCard Merchant
Agreement. The Member of Visa is not a party to the MasterCard Merchant Agreement and shall have no
liability with respect to any matters relating to or arising out of the MasterCard Merchant Agreement,
including any actions of Elavon or the Member of MasterCard thereunder. The MasterCard Merchant
Agreement is contained within the Agreement and is identical to the Visa Merchant Agreement except as
set out herein
Member: A financial institution designated by Elavon that is a principal, sponsoring affiliate or other
member of Visa, MasterCard or other member of the applicable Payment Network. References to
“Member” in the MasterCard Merchant Agreement shall refer to the Member of MasterCard and references
to “Member” in the Visa Merchant Agreement shall refer to the Member of Visa. For purposes of
Transactions in Canada only, as of the date of distribution of the TOS, the Visa Member is U.S. Bank
National Association, acting through its Canadian branch, the MasterCard Member is Elavon Canada
Company, and the Discover Network Member is Elavon Canada Company. The Member may be changed
by Elavon at any time and Company will be provided notice of same.
MICR: The magnetic ink character read line encoded on a Paper Check that contains information about the
Customer’s checking account, including the ABA Routing Number and checking account number.
Model Documents: A sample set of customer terms and conditions and a privacy policy provided by
Elavon to Company for Company’s use in developing its own Customer-facing terms and conditions and
privacy policy governing Customer participation in the Fanfare Loyalty Program.
NACHA: The national association that establishes standards, rules, business practices, and procedures
governing the ACH Network, including the ACH Rules.
Operating Guide: The operating manual provided by Elavon to its Company that prescribes rules and
procedures governing the Transactions. The Operating Guide may be amended from time to time by Elavon
in its sole discretion, which amendments will be effective upon notice to Company.
Paper Check: A Customer’s paper check presented to Company for payment to Company, which check
will serve as the source document for Items.
Payment Card Industry Data Security Standard (PCI DSS): The data security regulations, including
maintaining Cardholder account data in a secure environment, and other data security best practices
endorsed by the major card associations including Visa, MasterCard and Discover, as such may be
amended from time to time. Visa requires that companies and their agents comply with CISP, MasterCard
requires that companies and their agents comply with SDP and the PCI DSS regulations of Discover
Network.
Payment Device: Any device or method used for the purpose of obtaining credit or debiting a designated
account including a Credit Card, Debit Card, and any other financial transaction device or method,
including an Electronic Gift Card, check (whether converted into electronic form or used as a source
124
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 53
document for an electronic fund transfer), EBT Card, stored value card, “smart” card, or other device
created to be used for the purpose of obtaining credit or debiting a designated account.
Payment Network: Any Credit Card Association, EFT Network, ECS Association or automated clearing
house association, governmental agency or authority, and any other entity or association that issues or
sponsors a Payment Device or PayPal Payment Device (as defined in the Operating Guide) or operates a
network on which a Payment Device is processed.
Payment Network Regulations: The rules, operating regulations, guidelines, specifications and related or
similar requirements of any Payment Network. The Visa operating rules are located at
https://usa.visa.com/dam/VCOM/download/about-visa/15-April-2015-Visa-Rules-Public.pdf. MasterCard
operating rules are located at https://www.mastercard.com/ca/merchant/en/getstarted/rules.html.
PCI Compliance Program: Elavon’s program for validation of Company compliance with the PCI-DSS
requirements.
Person: Any individual, firm, corporation, business trust, partnership, governmental agency or authority, or
other entity and shall include any successor (by merger or otherwise) of such entity.
Personal Guaranty: Any written guaranty of Company’s duties and obligations to Elavon and Member by
a Person that is given in connection with the Agreement including, without limitation, as part of this TOS,
the Company Application, any Company Agreement or Company Processing Agreement, or any other
document signed by the Person in favor of Elavon and Member.
PIN: A number that must be entered by a Cardholder in order to complete certain types of Transactions
(e.g., online debit, EBT).
POS Device: A terminal, software or other point-of-sale device at a Company location that conforms to the
requirements established from time to time by Elavon and the applicable Payment Network.
Prepaid Card: A card having available funds paid for in advance by the Cardholder.
Primary Company: The Merchant Identification Number (MID)/location originally enrolled for
Electronic Gift Cards and set up to be billed for the card orders placed or designated as the corporate or
headquarter location.
Primary Fanfare Company: The Merchant Identification Number (MID)/location originally enrolled for
the Fanfare Services and set up to be billed for all Fanfare Services provided by Elavon.
Processing Services: The Payment Device processing services and other related products and services
received by Company pursuant to the Agreement.
Program: The Payment Device processing services and other related products and services received by
Company pursuant to the Agreement.
Reserve Account: The account established pursuant to Section (A)(6).
Retrieval Request: A request initiated by a Cardholder or Issuer that requires Company to produce a
legible copy of the Cardholder’s signed Transaction Receipt within a specified period of time.
Service Provider: Any entity that stores, processes, transmits or accesses Payment Device data or
Transaction data on behalf of Company or that provides software to Company for transaction processing,
storage, or transmission.
Servicer: See “Elavon.”
125
TOS201702 TERMS OF SERVICE
SECTION G – GLOSSARY 54
Site Data Protection Program (SDP): MasterCard’s data security regulations to protect Cardholder
account data and other data security best practices. The exact requirements for SDP can be found at
https://sdp.mastercardintl.com.
Supported Hardware: The equipment, systems and hardware, including POS Devices, necessary for
Company to make use of Company’s selected Fanfare Services.
Terms of Service (TOS): These Terms of Service and all additions to, amendments, and modifications of,
and all replacements to the TOS, as applicable.
Token: A numerical token provided by Elavon in substitution of a Payment Device account number.
Tokenization Services: Those services described in paragraph 1 of Section C of this Agreement.
Transaction: Any action between Company and a Cardholder using a Payment Device that results in
activity on the Cardholder’s account (e.g., payment, purchase, refund, or return).
Transaction Receipt: The paper or electronic record evidencing the purchase of goods or services from, or
payment to, a Company by a Cardholder using a Payment Device.
Visa: As applicable, Visa U.S.A., Inc. and Visa Canada, Inc.
Visa Merchant Agreement: The Company Agreement that it a part of the Agreement and is between
Company, the Member of Visa and Elavon, if as part of the Program Company has requested the ability to
accept Visa Credit Cards. The Member of Visa is a party to the Visa Merchant Agreement for purposes of
compliance with the Visa Credit Card Rules while Elavon is a registered independent sales organization of
Visa and as such is also a party to the Visa Merchant Agreement. The Member of MasterCard is not a party
to the Visa Merchant Agreement and shall have no liability with respect to any matters relating to or arising
out of the Visa Merchant Agreement, including any actions of Elavon or the Member of Visa thereunder.
The Visa Merchant Agreement is contained within the Agreement and is identical to the MasterCard
Merchant Agreement except as set out herein.
WebSuite Services: An electronic commerce solution provided by Elavon’s third party service providers
that permits Customers to purchase or add value to Electronic Gift Cards through Company’s WebSuite
site. Customers submit payment for the Electronic Gift Card via a Payment Device via the Processing
Services.
126
Operating Guide
February 2017
127
Operating Guide OG201702
i
Table of Contents
Chapter 1: About Your Card Program ........................................... 1
About Transaction Processing ..................................................................... 2
General Operating Guidelines ..................................................................... 2
Additional Services ...................................................................................... 4
Chapter 2: Processing Transactions ............................................. 6
Company Compliance .................................................................................. 6
Authorization ................................................................................................ 8
The Electronic Authorization Process .......................................................... 9
Full and Partial Authorization Reversals ..................................................... 10
Settlement ................................................................................................. 10
Paying The Company For Transactions .................................................... 11
Transaction Processing Procedures .......................................................... 11
Transaction Processing Restrictions ........................................................... 13
Transaction Receipts ................................................................................. 13
Processing Card Not Present Transactions ............................................... 15
Paper Drafts .............................................................................................. 19
Processing Credit Transactions .................................................................. 20
Returns And Exchanges ............................................................................. 20
Additional Requirements Applicable to Debit Card, PIN-Authorized
Debit Card and Prepaid Card Transactions ........................................... 21
Additional Requirements Applicable to PIN-Authorized
Debit Card Transactions ........................................................................ 23
Special Requirements Applicable to Internet PIN-Based Card
Transactions ............................................................................................... 25
Other Transaction Types ............................................................................ 27
Recurring Payments and Pre-Authorized Orders ....................................... 27
Quasi-Cash Transactions ........................................................................... 29
Contactless Transactions ........................................................................... 29
Chapter 3: Settling Daily Transactions ....................................... 31
Settling The Daily Batch ............................................................................ 31
Paper Deposits .......................................................................................... 31
Adjustments ............................................................................................... 32
Chapter 4: Preventing Card Fraud ............................................... 33
Identifying Suspicious Customer Actions ................................................... 33
128
Operating Guide OG201702
ii
Identifying Suspicious Card Not Present Transactions .............................. 34
Identifying Valid Cards ............................................................................... 35
Identifying Suspicious Employee Actions .................................................. 37
Factoring .................................................................................................... 37
Chapter 5: Code 10 Procedures ................................................... 38
CODE 10 Authorization Numbers .............................................................. 38
What To Do With An Unauthorized Card ................................................... 38
Chapter 6: Retrieval Requests and Chargebacks ...................... 40
Notification Of Retrieval Requests And Chargebacks ................................. 40
Retrieval Requests ..................................................................................... 41
Chargebacks ............................................................................................... 42
Excessive Activity ........................................................................................ 43
Chapter 7: International Transactions ......................................... 44
Dynamic Currency Conversion Transactions ............................................... 44
Your Responsibilities and Restrictions ........................................................ 44
DCC Written Disclosure Requirements ........................................................ 45
DCC Transaction Receipt Requirements .................................................... 45
Mail Order (MO) Transactions .................................................................... 46
Electronic Commerce Transactions ............................................................ 46
Priority Check-Out and Express Return Transactions
(Limited T&E Situations) ............................................................................. 46
Multi-Currency Pricing ................................................................................ 47
Chapter 8: Vehicle Rental or Leasing Authorization
Procedures ............................................................................... 48
Preparation Of Transaction Receipts .......................................................... 48
Vehicle Rental Or Leasing Ancillary Charges ............................................. 49
Chapter 9: Lodging Accommodations Authorization
Procedures ............................................................................... 50
Preparation Of Transaction Receipts .......................................................... 50
Lodging Accommodations Ancillary Charges .............................................. 51
Lodging Reservation Service ...................................................................... 52
Advance Lodging Deposit Service ............................................................... 53
Priority/Express Check-Out Services ........................................................... 55
129
Operating Guide OG201702
iii
Chapter 10: Convenience Fee and Government/Public Institution
Service Fee Requirements ............................................................. 57
Terms Applicable to Both Convenience Fees And
Government/Public Institution Service Fees ................................................ 57
Convenience Fees ...................................................................................... 58
Government/Public Institution Service Fees ................................................ 59
Chapter 11: Electronic Benefits Transfer (EBT)
Transactions ............................................................................. 62
Chapter 12: PIN-less Bill Payment Transactions ........................ 63
Chapter 13: No Signature Required Transactions ...................... 66
Chapter 14: Wireless Service Transactions ................................ 67
Chapter 15: Store and Forward Application Transactions ......... 69
Chapter 16: Electronic Gift Card (EGC) Services ........................ 71
EGC Processing Services ........................................................................... 71
WebSuite Services ..................................................................................... 72
Processing Electronic Gift Card Transactions ............................................. 73
Electronic Gift Card Artwork ........................................................................ 74
Chapter 17: Petroleum Services ................................................... 75
Provisions Applicable To All Petroleum Services ........................................ 75
Company’s Obligations For SmartLink Services ......................................... 76
Company’s Obligations For Voyager Card Acceptance .............................. 77
Company’s Obligations For Wright Express Card Acceptance .................... 77
Company’s Obligations For Private Label Card Acceptance ....................... 78
Chapter 18: Converge Services .................................................... 79
Use of Converge Services .......................................................................... 79
Additional Terms Applicable to Converge Services ..................................... 79
Terms Applicable to Converge Tokenization Services ................................. 81
Chapter 19: Services in Canada ................................................... 83
Chapter 20: Services in Puerto Rico ............................................ 91
130
Operating Guide OG201702
iv
Chapter 21: FanFare Loyalty and Gift Card Services .................. 96
General Features and Requirements .......................................................... 96
Fanfare Loyalty Services ............................................................................. 96
Fanfare Gift Card Services ........................................................................ 100
Chapter 22: Payments Insider and MerchantConnect ............... 102
Payments Insider ....................................................................................... 102
MerchantConnect ...................................................................................... 103
Chapter 23: Transend Pay Services ............................................ 104
Chapter 24: Payment Navigator ................................................... 106
Provisions Applicable to the Payment Navigator Services ......................... 106
Healthcare Administration Services ........................................................... 108
Chapter 25: Gateway Services ..................................................... 109
Description of the Gateway Services and Functionality ............................. 109
Gateway Services General Terms and Conditions .................................... 110
Connectivity Equipment Location Terms ................................................... 113
Chapter 26: Biller Direct Services ............................................... 116
General Provisions Applicable to the Biller Direct Services ....................... 116
Payment Card Service Provisions ............................................................. 119
ECS and ACH Provisions .......................................................................... 119
Chapter 27: Safe-T Instant Tokenization™ Services ................. 120
Chapter 28: Equipment ................................................................. 122
Provisions Applicable to Rental Equipment ............................................... 122
Provisions Applicable to Apple, Inc. Equipment ......................................... 123
Chapter 29: Supplies .................................................................... 124
Chapter 30: MasterPassTM Wallet Services.................................. 125
Chapter 31: PayPal Acceptance .................................................. 126
Chapter 32: Level III Data ............................................................. 127
131
Operating Guide OG201702
v
Chapter 33: Additional Resources .............................................. 129
Payment Network Company Information .................................................. 129
PCI Data Security Standards Information ................................................. 129
Appendix A: Glossary ................................................................. 130
132
Operating Guide OG201702
1
Chapter
1
About Your Card Program
Thank you for your choosing us as your Servicer. This Operating Guide contains instructions for processing card
transactions with us and minimizing the risk of fraud to your business.
This guide is a part of the Agreement with us. Please familiarize yourself with this guide as you are the first line of
defense against fraud. Failure to comply with these guidelines and suggestions may be considered a breach of the
Agreement and may result in financial loss to your business. In the event that compliance with this Operating Guide
would cause you to violate applicable Payment Network Regulations and/or Laws, you should comply with such
applicable Payment Network Regulations and/or Laws.
Throughout this guide terms that have specific meaning to the Card industry are noted with initially capitalized
letters (e.g., Credit Card, Card Present Transactions). If you are not familiar with these terms, refer to Appendix A,
Glossary for definitions.
TYPES OF CARDS
Types of Cards include:
Credit Card: A Credit Card is issued by a financial institution or other Credit Card company (called the Issuer)
that extends a line of credit to the Cardholder. A Credit Card allows the Cardholder to borrow money against
the credit line and to repay the funds with interest if the Balance is carried over from month to month. Visa and
MasterCard Credit Cards (often referred to as “Bank Cards”) are issued by banks, while American Express,
Discover Network, and other Credit Cards may be issued by the Card company itself or in some instances by
other financial institutions. There are many Issuers that offer Discover Network, Visa and MasterCard Credit
Cards, making it possible for a Cardholder to have several different Credit Cards, each of which represents its
own line of credit.
Debit Card: A Debit Card is issued by a financial institution. Purchases made with Debit Cards result in the
immediate withdrawal of funds from the Cardholder’s bank account. Debit Cards do not represent a line of
credit; they can only be used to the extent the Cardholder has available funds in the account associated with the
Debit Card. Discover Network, Visa and MasterCard offer Debit Cards in addition to Credit Cards. Debit Cards
that are processed on Credit Card Association networks are typically signature-based Debit Cards, while Debit
Cards that are processed on EFT Networks are generally Personal Identification Number (PIN)-based Debit
Cards.
Automated Teller Machine (ATM) Card: An ATM Card is a plastic card issued by a financial institution that
allows a Cardholder to withdraw funds, make deposits, make purchases, or perform other banking functions
against the Cardholder’s bank account through an ATM or POS Device.
133
Operating Guide OG201702
2
Electronic Gift Cards (EGC): EGCs are issued by Companies at a set dollar amount for future purchases.
When a Cardholder uses an EGC to make a purchase, the Transaction total is deducted from the value
remaining on the Card until the pre-paid amount is spent.
Electronic Benefits Transfer (EBT) Cards: EBT Cards are Cards used by a Cardholder to purchase qualifying
goods or services from a Company using government-funded benefits loaded onto the Card. EBT Cards are
used like Debit or ATM Cards (requiring a PIN). When an EBT Card is used to make a purchase, the
Transaction total is deducted from the value remaining in the Cardholder’s account until the pre-paid amount is
spent.
ABOUT TRANSACTION PROCESSING
To accept Credit Cards, Debit Cards or other Cards for payment, you process the Transactions through a POS
Device and/or with point-of-sale software. A group of Transactions is called a Batch, and the process of sending
these Transactions to us is called Settlement.
When you settle a Batch, information for each Transaction is sent to clearing networks across the country and
sometimes around the world. Based on each Card number, we send information about a Transaction to the
corresponding Issuer so they can charge the Cardholder. Then, funds for the Transaction are deposited into your
Demand Deposit Account (DDA). Refer to Chapter 2, Processing Transactions, for specific details about
processing Transactions.
In exchange for these services, you are charged a percentage of each Transaction (known as a Discount), along
with Transaction fees, Authorization fees, and any other fees specified in the Agreement. Fees are deducted
from your DDA on either a monthly or a daily basis.
When a Cardholder does not agree with a Transaction posted to his or her account, the Cardholder can contact
the Issuer and initiate a dispute. In this case, the Transaction amount is debited from your DDA and we send
you a Chargeback notice. In order to protect your rights, it is important that you respond promptly to any
Chargeback notice you receive. Refer to Chapter 6, Retrieval Requests & Chargebacks, for a detailed
explanation of this process.
GENERAL OPERATING GUIDELINES
When you process Transactions, it is important to keep the following general guidelines in mind:
Do Not Set Restrictions on Card Transactions: Discover Network, Visa and MasterCard prohibit setting
a minimum or maximum purchase amount except that you are permitted to set a minimum purchase
amount of up to $10 for Credit Card Transactions and, if you are a government agency or institution of
higher education, you may set a maximum purchase amount for Credit Card Transactions. Discover
Network, Visa and MasterCard permit adding a surcharge to a Credit Card Transaction amount, subject to
specific conditions and requirements. You may give a discount from your standard pricing or offer an in-
kind incentive for payment by cash, Credit Card, Debit Card or any other method of payment. Card
customers are frequently among your best customers due to their available lines of credit, purchasing
freedom, and their tendency to spend more than cash customers.
Do Not Discriminate: You must honor all valid Cards within your acceptance categories when properly
presented for payment, without discrimination, unless Laws expressly require otherwise. You must
maintain a policy that does not discriminate, unless Laws expressly require otherwise, among Cardholders
seeking to make purchases with a particular brand of Card accepted by you.
Keep Passwords Secure: Keep all passwords that allow you to access our databases or services secure.
Remember, you are responsible for the actions of anyone who uses your password. If you believe your
password has been compromised or shared with an unauthorized user, please contact us immediately.
Protect Cardholder Privacy: You may only require a Cardholder’s personal information if it is necessary
to complete a Transaction (such as a delivery address and/or telephone number for Card Not Present
134
Operating Guide OG201702
3
Transactions) or if the Voice Authorization Center specifically requests it. You may not refuse to complete
an otherwise valid Card Transaction just because a Cardholder refuses to provide additional identification
or information. Discover Network, Visa and MasterCard regulations prohibit listing a Cardholder’s
personal information on the Transaction Receipt because it can expose a Cardholder to increased risk of
fraud. You must not use any Servicer’s systems, including, but not limited to, custom fields or any other
unprotected fields within Service’s systems, to collect, transmit, or store any sensitive or confidential data,
including, but not limited to, personal unique identifiers, including, but not limited to, Primary Account
Numbers (PAN), Card expiration dates, track data, Card Identification Numbers, Card Validation Codes,
Social Security numbers, Personal Identification Numbers, individually identifiable health information, or
other private data of customers or cardholders. You must not, and must not cause Servicer to, violate
applicable requirements of the Payment Card Industry (PCI) Data Security Standard, including Visa’s
Cardholder Information Security Program (CISP), MasterCard’s Site Data Protection Program (SDP) and
the Discover Information Security & Compliance (DISC) program.
Plan Ahead for Fees and Chargebacks: Maintain sufficient funds in your DDA to cover all fees,
Chargebacks, or any other adjustments that may occur. Monthly fees are debited from your DDA near the
beginning of each month for the prior month’s activity. We recommend that you keep five percent (5%) of
your average monthly processing volume available in your account to cover monthly fees and the
possibility of Chargebacks. Keep in mind that this is only a recommendation and your business may require
additional available funds. For example, businesses that conduct high-risk Transactions (such as Card Not
Present or those with future delivery of products or services) should consider maintaining a higher
percentage of their average monthly processing volume in their account.
Keep Cardholder Data Secure: Keep all Transaction Receipts in a locked area that is accessible only to
select personnel. When you dispose of Transaction Receipts after the designated retention period, make
sure that account numbers and Imprints are rendered unreadable, as criminals can commit fraud with even a
few pieces of Cardholder data. Your customers will not only appreciate your concern and consideration, but
will also gain confidence in your service and integrity.
Perform Regular Audits: In addition to balancing daily receipts, compare Transaction Receipts to the
register tape to ensure that they match. Periodic reviews help identify potential problems associated with a
specific register or sales associate. Remember, it is your responsibility to address inconsistencies and
educate your staff.
Know Your Third Party Vendors: If you use software or other services (such as an online “shopping
cart”) provided by a third party or value-added reseller (VAR), you may be impacted by and financially
liable for security breaches or system failures by the third party vendor. Be sure to acquaint yourself with
the third party vendors’ requirements and limitations so you can minimize disruption in service and protect
yourself from unauthorized access. It is your responsibility to ensure that all Cardholder information
(including that accessed or maintained by your third party vendor) is stored in an encrypted and secure
environment. You are responsible for ensuring that any third party vendors that you engage are registered
with the Payment Networks prior to the performance of any contracted services on your behalf.
Additionally, you are responsible for notifying Servicer of any third party vendors registered or VARs used
by you.
Security Program Compliance: You, and any third party vendors that you utilize, must comply with all
applicable requirements of the Payment Card Industry (PCI) Data Security Standard, including Visa’s
Cardholder Information Security Program (CISP), MasterCard’s Site Data Protection Program (SDP) and
the Discover Information Security & Compliance (DISC) program. You must remain in compliance with
these standards as they change.
Data Compromise: Notify us immediately, and in any event within twenty-four (24) hours, if you know or
suspect that Cardholder information has been accessed or used without authorization, even if this
compromise involves a third party vendor. You must take immediate steps to preserve all business records,
logs and electronic evidence and contact local law enforcement authorities (including the local FBI and
U.S. Secret Service). You must work with us to rectify any issues that result, including providing us (and
135
Operating Guide OG201702
4
obtaining any waivers necessary to provide us with) all relevant information to verify your ability to
prevent future data incidents in a manner consistent with the Agreement.
Interchange: Interchange qualification requirements, as defined by the Credit Card Associations, affect the
Company’s fees or surcharges owed for Transactions. Company will pay a higher discount rate, higher
fees, and surcharges for Transactions that do not meet the best rate qualification criteria or have been
processed in a manner other than for which the Company was approved.
Display of Card Marks. Unless otherwise informed by Servicer, you must prominently display the most
current versions of the Credit Card Association’s and EFT Network’s names, symbols, and/or service
marks, as appropriate, at or near the POS Device as may be required or requested by the Payment
Networks. For Companies that accept Cards for Electronic Commerce Transactions, you must display such
names, symbols and/or service marks on Internet payment screens. You may also display such marks on
promotional materials to inform the public that such Credit Cards and Debit Cards will be honored at your
place(s) of business. Company’s use of such marks must comply with the requirements of each mark’s
owner. Company’s right to use or display such marks will continue only so long as the Agreement remains
in effect and such right will automatically terminate upon termination of the Agreement. Company must
remove the marks immediately upon termination.
Prohibited Transactions. A Company must not: (a) submit for payment into interchange any Transaction
that (i) arises from the dishonor of a Cardholder’s personal check, (ii) arises from the acceptance of a Card
at a POS Device that dispenses scrip, (iii) is illegal, or (iv) is otherwise prohibited herein or in the Payment
Network Regulations; (b) accept Cardholder payments for previous Card charges incurred at the Company
location; (c) accept a Card to collect or refinance an existing debt that has been deemed uncollectible by the
Company providing the associated goods or services; or (d) accept Cards at POS Devices that dispense
scrip.
Marketing; Opt-out. Elavon seeks to provide you with updated information regarding the products and
services that we offer to you. In addition to our traditional methods of communication, we may also reach
out to you via mobile text messaging and email messages. By providing your mobile phone number and/or
e-mail address in your Company Application, you authorize Servicer to use that information to contact you
about your account and to market additional products/services to you. You are not required to provide your
mobile phone number and/or e-mail address in connection with your Company Application, and, if you do,
you may elect not to receive such communications from Servicer in the future by contacting Servicer at
optout@elavon.com.
ADDITIONAL SERVICES
In addition to the traditional Card processing services offered, we also provide the following services:
Acceptance of American Express, Discover Network, Diners, JCB, and/or UnionPay Cards: If
Servicer provides authorization and/or data capture services to Company for American Express, Discover
Network, Diners, JCB, and/or UnionPay Transactions, Company agrees to the following provisions, in
addition to the other provisions set forth in the Operating Guide. If Card Processing Fees are indicated for
Discover Network on your Company Application or Schedule A (Schedule of Fees) to the Agreement, as
applicable, then Servicer provides full authorization, processing and settlement services for Discover
Network Transactions and the Company’s Discover Network Transactions must comply with the
provisions of the Operating Guide; otherwise, Servicer provides only authorization and/or data capture
services for Discover Network Transactions.
Address Verification Service (AVS): Allows a Company to help prevent fraud by verifying a
Cardholder’s billing address prior to completing a Card Not Present Transaction.
MerchantConnect: Allows a Company to manage Transaction Data from multiple locations or multiple
company accounts via any standard web browser (e.g., Internet Explorer) using a web-based Transaction
reporting and reconciliation system.
136
Operating Guide OG201702
5
Automated Customer Service (ACS): Allows a Company to view detailed reports of Transaction activity,
statement detail, Card type history, and qualification detail using a desktop reporting and accounting
reconciliation application.
Dynamic Currency Conversion (DCC): Allows a Company to offer international Cardholders in the
United States the option at the point-of-sale to pay in their home currency rather than in U.S. Dollars.
Electronic Check Services (ECS): Allows a Company to convert paper checks and other payment
information into electronic Transactions, eliminating the need to manually deposit checks at a bank. ECS
provides you and your Customers with efficient, easy, and secure bank account payment processing. Refer
to the separate Electronic Check Service Merchant Operating Guide (ECS MOG) for additional information
on electronic processing of checks using ECS.
Electronic Gift Card (EGC) Services: Allows a Company to sell Electronic Gift Cards redeemable for in-
store merchandise or services. EGCs provide Customers with another form of payment while encouraging
repeat shopping.
Electronic Benefits Transfer (EBT) Service: Allows electronic transfer of government funds to
individuals through the use of a plastic debit-like Card and a PIN. The federal government requires all
states to distribute food stamps and cash benefits in this manner.
Hospitality Services: Allows a Company operating in the hotel and hospitality industry to process
Transactions for lodging accommodations.
Petroleum Services: Allows a Company to process petroleum-related Transactions, including SmartLink
Services, Voyager Card Acceptance and Wright Express Card Acceptance.
Fanfare Loyalty and Gift Card Services: Allows a Company to establish and operate a Customer loyalty
program and/or a gift card program, including a Customer-facing website, through which the Company can
create and manage marketing campaigns and promotional offerings to Customers.
Services in Canada: Allows Companies operating in Canada to process Transactions subject to the
requirements set forth herein and in the Agreement.
Please contact us if you are interested in any of these services.
137
Operating Guide OG201702
6
Chapter
2
Processing Transactions
This Chapter explains the two steps involved in the Transaction process—Authorization and Settlement— as well as
the different types of Transactions.
COMPANY COMPLIANCE
1. Settlement of Transactions. Subject to the other provisions of the Agreement and subject to Company’s
compliance with the terms of the Agreement and the Payment Network Regulations, Servicer will process
Transactions daily, and if Company maintains its DDA with Member, provisional credit for Transactions
(less recoupment of any Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the
Payment Networks and other amounts due to Servicer under the Agreement) may be available as soon as
the next banking day after the banking day on which Servicer a process the Transactions. Regardless of
where Company maintains its DDA, Company acknowledges and agrees that Servicer may use either
“direct” (ACH debit authority pursuant to which Chargebacks, returns, adjustments, fees, fines, penalties,
assessments and charges from the Payment Networks and other amounts due to Servicer under the
Agreement are debited from the DDA) or “net” (pursuant to which Chargebacks, returns, adjustments, fees,
fines, penalties, assessments and charges from the Payment Networks and other amounts due to Servicer
under the Agreement are netted from Transaction proceeds) methods to recover any amounts owed by
Company to Servicer under the Agreement. To the extent required, Company authorizes and appoints
Servicer to act as Company’s agent to collect Transaction amounts from the Customer, the Issuer or the
Customer’s financial institution.
2. Deposits. Company acknowledges that its obligation to Servicer for all amounts owed under the Agreement
arises out of the same transaction as Servicer’s obligation to deposit funds to the DDA and such amounts
are owed in the ordinary course of business.
3. Provisional Credit. Company acknowledges that all credits for funds provided to it are provisional and
subject to reversal in the event that Servicer does not receive payment of corresponding settlement amounts
from the Payment Networks. Company further acknowledges that all credits are subject to adjustments for
inaccuracies and errors (including rejects) and Chargebacks in accordance with the Agreement and the
Payment Network Regulations, whether or not a Transaction is charged back by the Issuer or Customer.
Company authorizes Servicer to initiate reversal or adjustment (debit or credit) entries and to initiate or
suspend such entries in accordance with the Agreement as may be necessary to grant or reverse provisional
138
Operating Guide OG201702
7
credit for any Transaction. Further, Servicer may delay Company-issued Cardholder credits for up to five
(5) business days for accounting verification. Cardholder credits issued by Company to PIN-Debit Cards
will not be subject to this delay.
4. Chargebacks. Company agrees to accept for Chargeback, and will be liable to Servicer in the amount of
any Transaction disputed by the Cardholder or Issuer for any reason under the Payment Network
Regulations. Company authorizes Servicer to offset from funds due Company or to debit the DDA or the
Reserve Account for the amount of all Chargebacks. Company will fully cooperate with Servicer in
complying with the Payment Network Regulations regarding all Chargebacks.
5. Original Transaction Receipts. Under no circumstances will Servicer be responsible for processing
returns, refunds, or adjustments related to Transactions not originally processed by Servicer.
6. Demand Deposit Account. Company will maintain sufficient funds in the DDA to accommodate all
Transactions contemplated by the Agreement and all Chargebacks, returns, adjustments, fees, fines,
penalties, assessments from the Payment Networks and other payments due under the Agreement. Servicer
has the right to delay, within its reasonable discretion, crediting the DDA with funds related to Transactions
in order to investigate any Transactions related to suspicious or fraudulent activity or funds for
Transactions for which Servicer has not received funding from the applicable Payment Networks. Servicer
will endeavor to investigate or process any delayed Transactions expeditiously and will endeavor to notify
Company if any Transactions are delayed for more than 48 hours.
7. Asserted Errors. It is the responsibility of Company to reconcile the statements regarding Transaction
activity received from Servicer, any Payment Network, and any third party vendors with the statements
Company receives for Company’s DDA.
a. Company must promptly examine all statements relating to the DDA and promptly notify Servicer
in writing of any errors in the statement Company received from Servicer. Company’s written
notice must include:
i. Company name and account number;
ii. The dollar amount of the asserted error;
iii. A description of the asserted error; and
iv. An explanation of why Company believes an error exists and the cause of it, if known.
b. The written notice described above must be received by Servicer within forty-five (45) days of the
date of the Servicer statement containing the asserted error. If Company fails to provide such
notice to Servicer within said forty-five (45) days, Servicer will not be liable to Company for any
errors Company asserts at a later date. Company may not make any claim against Servicer for any
loss or expense relating to any asserted error for forty-five (45) days immediately following
Servicer’s receipt of Company’s written notice. During that forty-five (45) day period, Servicer:
i. Will be entitled to investigate the asserted error, and Company will not incur any cost or
expense in connection with the asserted error without notifying Servicer, and
ii. Notify Company of its proposed resolution of the asserted error.
139
Operating Guide OG201702
8
8. Fraud Monitoring. Company is solely responsible for monitoring its Transactions. Servicer is under no
duty to monitor Company’s Transactions for fraudulent or other suspicious activity.
9. Use of Trademarks. Company will use and display the Payment Networks’ marks as may be required or
requested by the Payment Networks, and will display such marks in accordance with the standards for use
established by the Payment Networks. Company’s right to use all such marks will terminate upon
termination of the Agreement or upon notice by a Payment Network to discontinue such use. Company’s
use of promotional materials provided by the Payment Networks will not indicate, directly or indirectly,
that such Payment Networks endorse any goods or services other than their own and Company may not
refer to any Payment Networks in stating eligibility for Company’s products or services.
10. Accuracy of Information. Company must promptly notify Servicer in writing of any material changes to
the information provided in the Company Application, in the bid process if applicable, or otherwise in the
Agreement, including, without limitation, any additional location or new facility at which Company desires
to use the Servicer Services, the form of entity (e.g., partnership, corporation, etc.), change in control,
material changes to the type of goods and services provided and/or payments accepted, and how
Transactions are completed (e.g., by telephone, mail, electronic commerce, or in person at Company’s
place of business). The notice must be received by Servicer at least ten (10) business days prior to the
change. Company will promptly provide any additional information reasonably requested by Servicer.
Servicer has the right to rely upon written instructions submitted by Company to request changes to
Company’s business information. Company may request written confirmation of Servicer’s consent to the
changes to the Company’s business information.
11. Transaction Receipts. Company is solely responsible for all Transactions and Transaction Receipts until
such time as the Transaction Receipts have been received and validated by Servicer. Company will
maintain sufficient “backup” information and data (e.g., Transaction Receipts or detailed reporting) with
respect to Transactions and will provide such information and data to Servicer upon request in order to
reconstruct any information or data lost due to any malfunction of Company’s or Servicer’s systems.
Servicer is under no duty to recreate lost Transactions or Transaction Receipts unless such loss results from
Servicer’s breach of the Agreement.
AUTHORIZATION
The first step in processing a Transaction is to request Authorization from the Issuer to accept a Card for
payment. Company must obtain an Authorization Code before completing any Transaction. An Authorization
request is made via one of the following two methods:
Electronic Authorization: The Company swipes a Card through or manually enters a Card number into a
POS Device. Then, the POS Device sends the Transaction information electronically to the Issuer for
Authorization.
Voice Authorization: The Company calls the Voice Authorization Center, which then communicates the
Transaction information electronically to the Issuer. An operator or an interactive voice response (IVR) unit
provides the Company with the Authorization Code given by the Issuer. Voice Authorization toll-free
telephone numbers are located on a sticker on your POS Device. If there is not a Voice Authorization
sticker on your POS Device, contact merchant services.
Most Authorizations are requested electronically. Voice Authorization is usually used if a Company does not
have a working POS Device or if the Issuer requests additional information during Electronic Authorization.
An Authorization request is required for every Transaction to determine if:
The Card number is valid;
The Card has been reported lost or stolen; and/or
Sufficient credit or funds are available.
140
Operating Guide OG201702
9
Receipt of an Approval Code in response to an Authorization request does not:
Guarantee that the Company will receive final payment for a Transaction;
Guarantee that the Cardholder will not dispute the Transaction later (all Card Transactions are subject to
Chargebacks even when an Approval Code has been obtained);
Protect you from Chargebacks for unauthorized Transactions or disputes regarding the quality of goods or
services; or
Waive any provision of the Agreement or otherwise validate a fraudulent Transaction or a Transaction
involving the use of an expired Card.
Company will follow any instructions received during Authorization. Upon receipt of an Authorization Code,
Company may consummate only the Transaction authorized and must note the Authorization Code on the
Transaction Receipt. In any case in which a Transaction is completed without imprinting the Card, the
Company, whether or not an Authorization Code is obtained, will be deemed to warrant the true identity of the
Customer as the Cardholder.
THE ELECTRONIC AUTHORIZATION PROCESS
The following diagram describes the Electronic Authorization process:
Figure 2-1. Authorization Process
1. Authorization of Purchase: The Transaction process begins when a Cardholder wants to buy goods or
services using a Card. Before the Transaction can be completed, the Company must receive an Approval
Code from the Issuer.
2. Servicer Host: The Company’s POS Device sends the Transaction Data to the Servicer Host to verify the
MID, to read the Card number, and to route the information to the appropriate Issuer.
3. Issuer: The Servicer Host sends the information to the Issuer through the Discover Network, Visa, or
MasterCard network, or directly to other Issuer networks (e.g., American Express). The Issuer determines
whether the Transaction should be approved and sends one of the following responses back to the Servicer,
who then forwards it to the Company:
Approval Code: Credit or funds are available to complete the sale and that the Card has not been
reported lost, stolen, or otherwise invalid. The Company may complete the Transaction.
Declined Code: The Issuer does not approve the Transaction. The Company should ask for another
form of payment and should not resubmit that Card for Authorization.
Declined Pick-Up: The Issuer does not approve the Transaction and requests that the Card not be
returned to the Cardholder. The Card should be cut lengthwise without damaging the Magnetic Stripe
and sent, along with the MID, Company address, and the date of the incident, to:
Exception Processing
141
Operating Guide OG201702
10
ATTN: Card Pick Up
Elavon, Inc.
7300 Chapman Highway
Knoxville, TN 37920
“Referral” or “Call Auth”: The Issuer requests the Company to call the Voice Authorization Center,
which will either provide an Approval Code or ask the Company to request additional information
from the Cardholder (e.g., mother’s maiden name). The Voice Authorization Center will provide this
information to the Issuer who will either approve or decline the Transaction.
4. Servicer Host: The Servicer Host receives the response from the Issuer and routes it to the Company.
5. Company: The Company receives the Issuer’s response from the Servicer Host and follows the appropriate
steps to complete the Transaction.
FULL AND PARTIAL AUTHORIZATION REVERSALS
For any approved amount received pursuant to an Authorization request that will not be included in a
Transaction presentment for Settlement, a full or partial authorization reversal must be processed by the
Company:
Within 24 hours of the original Authorization request for Card Present Transactions; and
Within 72 hours of the original Authorization request for Card Not Present Transactions.
This requirement does not apply if the Company is properly identified with any one of the following MCCs:
MCCs 3351 through 3441 (Car Rental Agencies);
MCCs 3501 through 3999 (Lodging—Hotels, Motels, Resorts);
MCC 4411 (Cruise Lines);
MCC 7011 (Lodging—Hotels, Motels, Resorts—not elsewhere classified); and
MCC 7512 (automobile Rental Agency—not elsewhere classified).
SETTLEMENT
The final step in processing a Transaction is Settlement, which occurs when the Company sends all of its Card
Transactions to Servicer to receive payment. During Settlement, the Company is paid and Cardholders are
billed for previously-approved Transactions.
NOTE: This process can take two or more business days (excluding holidays) unless you are set up for delayed
funding.
The following diagram describes the Settlement process:
142
Operating Guide OG201702
11
PAYING THE COMPANY FOR TRANSACTIONS
1. Company: Sends all approved, un-settled Transactions (known as the open Batch) in the POS Device to
the Servicer Host to close or settle the Batch.
2. Servicer Host: Sends Visa and MasterCard Card Transactions (and, if applicable, Discover Network
Transactions) to Interchange and other Card Transactions to the appropriate Issuer (e.g., American Express
Transactions to American Express). If the Transactions are not sent to Interchange, go to step 4.
3. Interchange: Sends Transaction Data to the appropriate Issuer.
4. Issuer: Posts the Transaction to the Cardholder’s account. The Issuer either sends to Interchange the
difference between the Transaction amount and the Interchange fee charged to the Servicer, or sends the
funds to the Company’s DDA (see step 7).
5. Interchange: Sends the difference between the Transaction amount and the Interchange Fees to the
Servicer Host.
6. Servicer Host: Sends a message to the Automated Clearing House (ACH) to pay the Company for the
Transactions.
7. Automated Clearing House (ACH): Sends the funds from Servicer to the Company’s DDA via electronic
transfer. Fees are debited from the Company’s DDA on a monthly or daily basis.
TRANSACTION PROCESSING PROCEDURES
Follow these guidelines when you process Transactions:
Keep the Card in your hand until you complete the Transaction; the Card is required in several Transaction
processing steps.
If your POS Device displays “Referral” or “Call Auth” during a Transaction, call your toll-free Voice
Authorization telephone number (located on a sticker on your POS Device) and follow the operator’s
instructions.
If you receive an Approval Code, but are still suspicious about the Cardholder, Card, or circumstances of
the Transaction, call for a Code 10 Authorization and follow the operator’s instructions. Refer to Chapter 5,
Code 10 Procedures, for additional information.
143
Operating Guide OG201702
12
Use a ballpoint pen for steps that require handwritten information. Never use a marker or a pencil to write
on a Transaction Receipt.
Do not write additional information (e.g., Cardholder’s telephone number, address, driver’s license number,
Social Security number) on any Transaction Receipt.
To process a Transaction, follow these steps:
1. Follow all Prompts and Enter all Data Elements. You must include required elements to receive
approval for Transactions and you can include optional data elements to qualify for better Interchange
rates.
For example: Under the current data requirements, Visa Business, Visa Corporate, and Visa Purchasing
Card Transactions must include sales tax information to qualify for the Level II Interchange Rate, where
applicable. Purchasing Cards only qualify if the customer code is also included in the Transaction.
2. Make Sure the Card is Valid. Check the Card’s expiration date and other features to ensure that the Card
is valid. Refer to Chapter 4, Identifying Valid Cards for validation information. Refer to Chapter 4,
Preventing Card Fraud for additional loss-prevention information.
3. Swipe the Card Through the POS Device. If the Card is successfully swiped, the POS Device may
prompt you to enter the last four digits of the Card number. This process compares the account number in
the Magnetic Stripe with the account number embossed on the Card.
If the POS Device cannot read the Magnetic Stripe, press the appropriate key to initiate a manual
Transaction. When you are prompted by the POS Device, enter the Card number and expiration date
embossed on the front of the Card. Make an Imprint of the Card on a paper Transaction Receipt to prove
that the Card was present during the Transaction. Keep the Imprinted Transaction Receipt with the
electronically printed Transaction Receipt from the POS Device.
Ensure that the paper Transaction Receipt contains all of the information related to the Transaction, such as
the Transaction amount, Transaction Date, Company information, Authorization Code, and Cardholder’s
signature.
4. Enter the Amount of the Transaction. When prompted by the POS Device, enter the amount of the
Transaction using the numeric key pad. You do not need to include a decimal point.
For Example: Enter $125.00 by pressing the 1-2-5-0-0 keys consecutively, and then pressing the ENTER
key. The POS Device displays a message that indicates when the Transaction is being processed for
Authorization.
5. Obtain the Authorization Code. If the Transaction is approved, the Approval Code prints on the
Transaction Receipt. If a printer is not present, the POS Device displays the Approval Code. If you have to
Imprint the Card, remember to record the Approval Code on the Transaction Receipt.
If the Transaction is declined, the POS Device displays “Declined” or “Declined-Pick-Up”. In these cases,
you should ask for another form of payment.
If the POS Device displays a “Referral” or “Call Auth” message, call the toll-free Voice Authorization
telephone number (located on a sticker on your POS Device) and follow the operator’s instructions. If you
receive an Approval Code, you must enter it into your POS Device to complete the Transaction. If
Authorization is declined, the Voice Authorization Center may ask you to retain the Card. If this occurs,
follow the operator’s instructions. A reward may be paid for the return of a Card at the Voice Authorization
Center’s request.
6. Have the Cardholder Sign the Transaction Receipt, and then Compare Signatures. In Card Present
Transactions, Transaction Receipts must be signed by the Cardholder unless otherwise specified under
separate criteria for a Credit Card Association program (e.g., No Signature Required Programs). Compare
the signature on the Transaction Receipt with the signature on the back of the Card. If you cannot tell
whether the signatures are similar, ask to see another form of identification and compare the second
signature with the others. You may also compare the appearance of the Cardholder with the picture on his
or her identification cards. Company must not honor any Card if: (i) the Card has expired; (ii) the signature
on the Transaction Receipt does not correspond with the signature on the Card or if the signature panel on
144
Operating Guide OG201702
13
the Card is blank, or uses language to the effect of “see id”; or (iii) the account number embossed on the
Card does not match the account number on the Card’s magnetic stripe. If you are still suspicious of the
Transaction or the Cardholder, you may perform a Code 10 Authorization. Refer to Chapter 4, Identifying
Valid Cards for more information.
7. Return the Card and the Customer Copy of the Transaction Receipt to the Cardholder. When the
Transaction is complete, return the Card to the Cardholder, along with the Customer copy of the
Transaction Receipt. Keep the Company copy of the Transaction Receipt for your records.
TRANSACTION PROCESSING RESTRICTIONS
Surcharges. Discover Network, Visa and MasterCard permit Companies in the U.S. to add a surcharge to a
Credit Card Transaction amount, subject to their respective Credit Card Rules. As a result, if permitted,
Company may add an amount to the posted price of goods or services Company offers as a condition of paying
with a Discover Network, Visa and MasterCard Credit Card. If Company is permitted to and elects to apply a
surcharge to its Discover Network, Visa and MasterCard Credit Card Transactions, Company must abide by all
Payment Network Regulations applicable to surcharging, including, but not limited to, any advance notice
requirements. In addition, Company may be required to register with Discover Network, Visa and/or
MasterCard prior to surcharging any Credit Card Transactions. Registration requirements are set forth in the
applicable Credit Card Rules and may be available through the applicable Payment Network websites. This
paragraph does not prohibit Company from offering a discount or in-kind incentive to induce a person to pay by
cash, Credit Card, Debit Card or any other method of payment.
Return Policy. Company must properly disclose to the Cardholder, at the time of the Transaction and in
accordance with the Card Rules, any limitation Company has on accepting returned merchandise.
No Claim Against Cardholder. Unless Servicer refuses to accept a Transaction Receipt or revokes their prior
acceptance of a Transaction Receipt (after receipt of a Chargeback or otherwise): (i) Company will not have any
claim against, or right to receive payment from, a Cardholder in any Transaction; and (ii) Company will not
accept any payments from a Cardholder relating to previous charges for merchandise or services included in a
Transaction Receipt, and if Company receives such payments, Company will promptly remit them to Servicer.
TRANSACTION RECEIPTS
A Transaction Receipt is a paper or electronic record of the purchase of goods or services from a Company by a
Cardholder using a Card. You must provide the Cardholder with a Transaction Receipt for his or her personal
records.
Transaction Receipts are required for all Transaction types and must be retained for a minimum of two (2) years
(or such longer period as the Card Rules or the Laws may require). Transaction Receipts should be stored in a
safe, secure area and organized in chronological order by Transaction Date.
ELECTRONIC TRANSACTION COMPONENTS
An Electronic Transaction Receipt must contain the following information:
Transaction Date
Total Transaction amount, including applicable taxes, fees and any adjustments or credits
Transaction Type (e.g., cash, debit, credit, etc.)
Description of the goods and/or services purchased
Card account number (must be truncated on the Cardholder copy) including the specific payment brand
(e.g., Visa, MasterCard or Discover)
Space for Cardholder signature for Card Present Transactions
Authorization Code
Company name and location
145
Operating Guide OG201702
14
Location code (i.e., POS Device or MID issued by Servicer)
Special return or refund terms printed in close proximity to the Cardholder signature line on the
Transaction Receipt, if restricted
Indication of who will receive each copy of the Transaction Receipt (e.g., Company Copy, Bank Copy, and
Cardholder Copy).
REPRODUCTION OF INFORMATION
For Card Present Transactions, if the following information embossed or printed on the Card is not legibly
imprinted on the Transaction Receipt, Company will legibly reproduce on the Transaction Receipt the: (i)
Cardholder’s name; (ii) Card account number; (iii) Card expiration date; and (iv) Company’s name and place of
business.
TRUNCATION
Cardholder’s Copy of the Transaction Receipt. The Card account number and expiration date must be
truncated on all Cardholder copies of Transaction Receipts and other paperwork provided to the
Cardholder. Truncated digits should be replaced with a fill character such as “x,” “*,” or “#,” and not with
blank spaces or numeric characters. All POS Devices must suppress all but the last four (4) digits of the
Card account number and the entire expiration date on the Cardholder’s copy of the Transaction Receipt
generated from electronic (including Cardholder-activated) POS Devices. These truncation rules do not
apply to Transactions in which the only way to record a Card account number and expiration date is in
handwriting or by making an Imprint or copy of the Card.
Company’s Copy of the Transaction Receipt. The Company’s copy of the Transaction Receipt must
suppress the entire expiration date. The Company may also have an obligation to suppress or truncate other
information on the Company’s copy of the Transaction Receipt under state or federal laws.
UNREADABLE MAGNETIC STRIPES
For Card Present Transactions, if Company authorizes and presents Transactions electronically and Company’s
POS Device is unable to read the Magnetic Stripe on the Card, Company must generate a manual Transaction
Receipt containing the information set forth below under “Manual Transaction Components,” in addition to
key-entering the Transaction into the POS Device for processing.
MANUAL TRANSACTION COMPONENTS
A manual Transaction Receipt must contain the following information:
Physical Imprint of the Card (not a photocopy)
Identification of the Transaction type (sale, credit/refund, etc.)
Transaction Date
Total Transaction amount
Cardholder signature
Authorization Code
Company name and location
POS Device or MID
Description of the merchandise or service purchased
Special return or refund terms printed in close proximity to the Cardholder signature line on the
Transaction Receipt
Salesperson’s initials or department number
146
Operating Guide OG201702
15
NOTE: If the Cardholder presents an unembossed Card and the POS Device cannot read the Magnetic Stripe
then the Company must request another form of payment. Manual Transaction Receipts are prohibited on
Transactions involving an unembossed Card.
DELIVERY OF TRANSACTION RECEIPTS
The Company must provide a complete and legible copy of the Transaction Receipt to the Cardholder in the
following manner:
Card Present Transactions: Provide the Transaction Receipt to the Cardholder at the time of the
Transaction.
Card Not Present Transactions: Provide the Transaction Receipt to the Cardholder in either electronic
(e.g., e-mail, fax) or paper (e.g., handwritten, POS Device-generated) format. Electronic Commerce
Transaction Receipts must not include the Card’s account number.
ELECTRONIC TRANSMISSION OF TRANSACTION RECEIPTS TO SERVICER
If Company utilizes electronic Authorization and/or data capture services, Company will enter the data related
to Transactions into a POS Device and settle the Transactions and transmit the data to Servicer or its designated
agent in the form specified by Servicer no later than the close of business on the date the Transactions are
completed. If Servicer requests a copy of a Transaction Receipt, Credit Transaction Receipt, or other
Transaction evidence, Company must provide it within the time frame specified in the request.
MULTIPLE TRANSACTION RECEIPTS
Company will include a description and total amount of goods and services purchased in a single Transaction
on a single Transaction Receipt unless: (i) partial payment is entered on the Transaction Receipt and the balance
of the Transaction amount is paid in cash or by check at the time of the Transaction; or (ii) a Transaction
Receipt represents an advance deposit in a Transaction completed in accordance with the Agreement and the
Card Rules.
DEPOSITS
Company must execute one Transaction Receipt when processing the deposit Transaction and a second
Transaction Receipt upon processing the balance of the Transaction. Company will note the words “deposit” or
“balance” on the applicable Transaction Receipt, as appropriate. Company will not deposit the Transaction
Receipt labeled “balance” until the goods have been delivered to the Cardholder or until Company has fully
performed the services.
FUTURE DELIVERY
Company represents and warrants to Servicer that Company will not rely on any proceeds or credit resulting
from future delivery Transactions to purchase or furnish goods or services. Company will maintain sufficient
working capital to provide for the delivery of goods or services at the agreed upon future date, independent of
any credit or proceeds resulting from Transaction Receipts or other Credit Transaction Receipts in connection
with future delivery Transactions.
PROCESSING CARD NOT PRESENT TRANSACTIONS
Card Not Present Transactions include Mail Order (MO), Telephone Order (TO), and Electronic Commerce
(EC) Transactions. These Transactions occur when the Card is not physically presented to the Company at the
time of a sale. You must be authorized by us to process Card Not Present Transactions.
If more than twenty percent (20%) of your Transactions are MO/TO, you must apply for a separate MID for
those Transactions. If more than one percent (1%) of your Transactions are Electronic Commerce orders, you
must also apply for a separate MID for those Transactions.
147
Operating Guide OG201702
16
MAIL ORDER/TELEPHONE ORDER (MO/TO)
Company understands that Transactions processed via MO/TO are high risk and subject to a higher incidence of
Chargebacks. Company is liable for all Chargebacks and losses related to MO/TO Transactions. Company may
be required to use an address verification service (“AVS”) on MO/TO Transactions. AVS is not a guarantee of
payment and the use of AVS will not waive any provision of the Agreement or validate a fraudulent
Transaction. Company will obtain the expiration date of the Card for a MO/TO Transaction and submit the
expiration date when requesting Authorization of the Transaction. For MO/TO Transactions, Company will
type or print legibly on the signature line of the Transaction Receipt the following applicable words or letters:
telephone order or “TO,” or mail order or “MO,” as appropriate. Servicer recommends that Company obtain a
signed Transaction Receipt or other proof of delivery signed by Cardholder for MO/TO Transactions.
ELECTRONIC COMMERCE (EC)
Company may process Electronic Commerce Transactions only if the Transactions have been encrypted by
Servicer or a third party vendor acceptable to Servicer. Company understands that Transactions processed via
the Internet are high risk and subject to a higher incidence of Chargebacks. Company is liable for all
Chargebacks and losses related to Electronic Commerce Transactions, whether or not such Transactions have
been encrypted. Encryption is not a guarantee of payment and does not waive any provision of the Agreement
or otherwise validate a fraudulent Transaction. Servicer recommends that Company obtain a signed Transaction
Receipt or other proof of delivery signed by the Cardholder for all Electronic Commerce Transactions. All
communication costs and compliance with Laws related to Electronic Commerce Transactions will be
Company’s responsibility. Company understands that Servicer will not manage the telecommunications link for
Electronic Commerce Transactions and that it is Company’s responsibility to manage that link. Company
authorizes Servicer to perform an annual audit and examination of Company’s website and such other due
diligence review as required by the Payment Network Regulations for Electronic Commerce Companies.
Requirements. Company’s website must contain all of the following information: (a) prominently display the
name of the Company; (b) prominently identify the name of the Company as displayed on the website as both
the Company and as the name that will appear on the Cardholder statement; (c) display Company name
information as prominently as any other information depicted on the website, other than images of the products
or services being offered for sale; (d) complete description of the goods or services offered; (e) returned
merchandise and refund policy; (f) customer service contacts, including electronic mail address and/or
telephone number; (g) complete address (street address, city, state, zip code, and country) of the permanent
establishment of the Company’s business; (h) complete address of the permanent establishment of the
Company’s business on either the checkout screen (which displays the total purchase amount) or within the
sequence of website pages presented to the Cardholder during the checkout process; (i) Transaction currency
(such as U.S. or Canadian dollars); (j) export or legal restrictions, if known; (k) delivery policy; (l) Customer
data privacy policy; and (m) Company’s method of Transaction security such as Secure Sockets layer (SSL) or
3-D Secure. If Company stores Card account numbers, expiration dates, or other personal Cardholder data in a
database, Company must follow the applicable Payment Network Regulations on securing such data. Company
may not retain or store CVV2/CVC2/CID data after authorization for record keeping or additional authorization
processing. A Company must not refuse to complete an Electronic Commerce Transaction solely because the
Cardholder does not have a digital certificate or other secured protocol.
Shipped Goods. For goods to be shipped on Electronic Commerce Transactions, Company may obtain
authorization up to seven (7) days prior to the shipment date. Company need not obtain a second authorization
if the Transaction Receipt amount is within fifteen percent (15%) of the authorized amount, provided the
additional amount represents shipping costs.
148
Operating Guide OG201702
17
Card Not Present Transactions pose a higher risk of fraud and Chargebacks, so it is important that you take
precaution in processing these Transactions. Follow these guidelines prior to processing a Card Not Present
Transaction, as applicable:
Use a ballpoint pen when handwritten information is required. Never use a marker or pencil when writing
on a Transaction Receipt.
Obtain the following information from the Cardholder, if needed:
Cardholder’s billing address
Shipping address, if different from billing address
Cardholder’s telephone number
Cardholder’s account number
Card expiration date
CVV2/CVC2/CID number
Purchaser’s name (in lieu of Cardholder signature)
NOTE: You must not retain or record the CVV2/CVC2/CID data element beyond the original Authorization
request. Further, the CVV2/CVC2/CID data element must not be printed on the Transaction Receipt or on any
document given to the Cardholder.
In addition to the Transaction Receipt requirements set out in Chapter 2, Processing Transactions, a Card Not
Present Transaction Receipt must also contain:
Company online address
Customer service contact, including telephone number
Do not settle a Transaction before shipping the goods. This increases the risk of a Chargeback to the Company
and is prohibited by the Agreement.
Do not retain magnetic stripe data except for first time use.
MANUAL TRANSACTION RECEIPTS FOR CARD NOT PRESENT TRANSACTIONS
Follow these steps for manual Transaction Receipts:
1. Write the Cardholder’s Name and Card Number on the Transaction Receipt. Refer to Chapter 2,
Processing Transactions – Electronic Transaction Components for information on Transaction Receipt
requirements. In addition to the electronic Transaction components requirements, a manual Transaction
Receipt for a Card Not Present Transaction may include the full Card account number and expiration date
and must include the Cardholder’s billing address (and shipping address, if different) and telephone
number. Do not record CVV2/CVC2/CID data elements on the Transaction Receipt.
2. Record the Order Type on the Transaction Receipt. Write one of the following on the signature line of
the Transaction Receipt:
“Mail Order”
“Telephone Order”
“Internet”
POS DEVICE GENERATED RECEIPTS
If you are using a POS Device to generate a Transaction Receipt for a Card Not Present Transaction, enter the
Transaction into the device by following these steps:
1. Press the appropriate key on your POS Device to initiate the Transaction.
2. When prompted, enter the Card number.
149
Operating Guide OG201702
18
3. When prompted again, enter the Card expiration date.
4. Finally, when prompted, enter the Transaction amount.
5. Record the Authorization Code on the Transaction Receipt. Refer to Chapter 2, Processing Transactions –
Transaction Receipts for more information.
CARD IDENTIFICATION NUMBER AND ADDRESS VERIFICATION SERVICE
The use of CVV2/CVC2/CID and AVS can lessen your risk of Chargebacks by providing you with additional
information to assist with your decision on whether or not to process a Card Not Present Transaction.
NOTE: The use of CVV2/CVC2/CID and AVS will not relieve you of liability for Chargebacks. Remember,
you bear the risk of loss associated with any Chargeback.
If you are using these services, follow the next two steps prior to processing a Transaction.
1. Verify the Card Identification Number (CVV2/CVC2/CID) Printed on the Front or Back of the
Card (at the end of the Card Account Number in the Signature Panel), as Applicable to the Specific
Card Type. If your POS Device is set up for CVV2/CVC2/CID and if the CVV2/CVC2/CID number is
provided at the time of Authorization, the Issuer returns either a “match” or a “no match” response.
“Match” means it is more likely that the Card is present and in the hands of the Cardholder at the time of
the Transaction. “No match” means you should consider whether or not to process the Transaction. Even
though you receive an Approval Code with a “no match” response, the Approval Code is not a guarantee
of payment. The decision to process a Transaction, regardless of the response received, is up to you,
because you are responsible for any risk associated with processing a Transaction.
NOTE: You must not retain or record the CVV2/CVC2/CID data element beyond the original
Authorization request. Further, the CVV2/CVC2/CID data element must not be printed on the
Transaction Receipt or on any document given to the Cardholder.
Most Customers do not know where the CVV2/CVC2/CID code is located on the Card. To assist a
Customer, have him or her locate the last three (or four) alphanumeric characters in the signature panel on
the back of his or her Card for Discover Network, Visa or MasterCard Card types or on the front of his or
her Card for American Express Card types.
Refer to Chapter 4, Unique Card Characteristics, for more details concerning the Card Identification
Number. The following table sets forth CVV2/CVC2 response codes.
Code Definition
Space CVV2 processing not requested
M CVV2/CVC2 Match
N CVV2/CVC2 not matched
P Not processed
S CVV2 should be printed on the card, but it was indicated that the value was not present
U Issuer does not support CVV2
X Service provider did not respond
2. Verify the Cardholder’s Address by Using the Address Verification Service (AVS). If your POS
Device is set up for AVS, it prompts you to enter the numeric portion of the Cardholder’s billing
address and the five digit zip code to verify that the individual providing the Card account number is
the Cardholder. The AVS result code indicates whether the address given by the Cardholder matches
(exactly, partially, or not at all) the address that the Issuer has on file for the Card. “Exactly” means it
is more likely that the Card is being used by the authorized Cardholder. “Partially” or “not at all”
150
Operating Guide OG201702
19
means you should consider whether or not to process the Transaction. The decision to process a
Transaction, regardless of the response received, is up to you, as you are responsible for any risk
associated with processing a Transaction. Even though you will receive an Approval Code following a
“no match” response, the Approval Code is not a guarantee of payment. The following table sets forth
AVS response codes.
Code Definition
A Address (street) matches - ZIP Code does not
B Street address match, postal code in wrong format (international issuer)
C Street address and postal code in wrong formats
D Street address and postal code match (international issuer)
E Error response for Merchant Category Code (SIC)
G Card issued by a non-U.S. issuer that does not participate in the AVS system
I Address information not verified by international issuer
M Street address and postal code match (international issuer)
N No match on address (street) or ZIP Code
O No response sent
P Postal codes match, Street address not verified due to incompatible formats
R Retry, system is unavailable or timed out
S Service not supported by issuer
U Address information is unavailable (domestic issuer)
W Nine-digit ZIP Code matches - Address (street) does not match
X Exact AVS Match
Y Address (Street) and five digit Zip match
Z Five-digit zip matches - address (street) does not match
NOTE: For more information about CVV2/CVC2/CID and AVS, contact merchant services.
For more information about processing Card Not Present Transactions, call the following numbers:
MC (MasterCard) Assist: (800) 622-7747
Visa’s Company Assistance Service: (800) 847-2750
American Express Address Verification Service: (800) 528-2121
Discover Network: (800) 347-1111
The information provided by calling these numbers may allow you to verify a Cardholder’s address and
obtain the Issuer’s telephone number.
PAPER DRAFTS
We supply you with the materials and forms that you need to process Discover Network, Visa or
MasterCard Transactions using paper drafts. You must maintain a supply of these materials. Refer to
Chapter 29, Supplies for more information.
Before you process a paper draft, please follow the guidelines under Transaction Processing Procedures
earlier in this Chapter.
To correctly process a paper Transaction Receipt, follow these steps:
1. Make Sure the Card is Valid. Check the Card’s expiration date and other features to ensure that the
card is valid. Refer to Chapter 4, Identifying Valid Cards for validation information. Refer to Chapter
4, Preventing Card Fraud for additional loss-prevention information.
151
Operating Guide OG201702
20
2. Imprint the Transaction Receipt. Make a legible Imprint of the Card on all copies of the Transaction
Receipt.
3. Call for Authorization. Call the Voice Authorization number provided on the sticker on your POS
Device and have the following information available:
Card account number
MID
Amount of sale (dollars and cents)
Card expiration date
4. Write the Approval Code in the Space Provided on the Transaction Receipt. The Approval Code
is required.
5. Have the Cardholder Sign the Transaction Receipt, and then Compare Signatures. Compare the
signature on the Transaction Receipt with the signature on the back of the Card. If you cannot tell
whether the signatures are similar, ask to see another form of identification and compare the second
signature with the others. You may also compare the appearance of the Cardholder with the picture on
his or her identification cards. If you are still suspicious of the Transaction or the Cardholder, you may
perform a Code 10 Authorization. Refer to Chapter 4, Identifying Valid Cards for more information.
6. Return the Card and the Cardholder Copy of the Transaction Receipt to the Cardholder. When
the Transaction is complete, return the Card to the Cardholder, along with the Cardholder copy of the
Transaction Receipt. Make sure to keep the Company copy of the Transaction Receipt for your
records.
7. Storage of Paper Drafts. It is important to keep copies of your Transaction Receipts in a safe place,
filed by Transaction Date. This is especially important for quickly locating a receipt if questions arise.
The PCI Data Security Standard sets out the requirements on how to handle the storage of paper drafts
that contain Cardholder information.
Visit http://www.pcisecuritystandards.org/security_standards/pci_dss.shtml or contact Customer
Service at 1-800-725-1243 for more information.
PROCESSING CREDIT TRANSACTIONS
Credit Transaction Receipt. Company must issue a Credit Transaction Receipt, instead of issuing cash or
a check, as a refund for any previous Transaction. Servicer will debit the DDA for the total face amount of
each Credit Transaction Receipt submitted to Servicer. Company must not submit a Credit Transaction
Receipt relating to any Transaction Receipt not originally submitted to Servicer, and Company must not
submit a Credit Transaction Receipt that exceeds the amount of the original Transaction Receipt. Company
must, within the time period specified by applicable Laws or the Card Rules, whichever time period is
shorter, provide Servicer with a Credit Transaction Receipt for every return of goods or forgiveness of debt
for services that was the subject of a previous Transaction in accordance with the Card Rules.
Revocation of Credit. Servicer may, in its reasonable discretion, refuse to accept any Credit Transaction
Receipt for processing.
Reprocessing. Company must not resubmit or reprocess any Transaction that has been charged back.
RETURNS AND EXCHANGES
Refunds for a Transaction must be processed by issuing a credit to the Card on which the original purchase
was made. You must also prepare a Credit Transaction Receipt for the amount of credit issued. Do not
refund a Card purchase with cash or check. Do not refund cash or check purchases to a Card.
If you have a special policy regarding returns or refunds, make sure that the policy is:
Clearly posted at the point-of-sale
152
Operating Guide OG201702
21
Printed on the Transaction Receipt using letters approximately ¼ inch high and in close proximity to
the signature line
If you are processing an even exchange, no action is necessary. However, if an exchange involves
merchandise of greater or lesser value, you must issue a Transaction Receipt or a Credit Transaction
Receipt for the difference. If you prefer, you may instead give a full refund to the Cardholder for the
original Transaction amount and process the exchange as a new Transaction.
ADDITIONAL REQUIREMENTS APPLICABLE TO DEBIT CARD, PIN-AUTHORIZED DEBIT
CARD AND PREPAID CARD TRANSACTIONS
With respect to Debit Card, PIN-authorized Debit Card, and Prepaid Card Transactions, Companies
operating in the Merchant Category Codes in the table below must:
1. For all Card Present Transactions occurring at an attended POS Device or at a Cardholder-activated
POS Device identified with MCC 5542 (Automated Fuel Dispensers), support partial approvals;
2. For all Transactions, support full and partial reversals; and
3. For all Card Present Transactions occurring at an attended POS Device and conducted with a Prepaid
Card, support account balance responses;
each as further described below.
MCC
4111 Transportation—Suburban and Local Commuter Passenger, including Ferries
4812 Telecommunication Equipment including Telephone Sales
4814 Telecommunication Services
4816 Computer Network/Information Services
4899 Cable, Satellite, and Other Pay Television and Radio Services
5111 Stationery, Office Supplies
5200 Home Supply Warehouse Stores
5300 Wholesale Clubs
5310 Discount Stores
5311 Department Stores
5331 Variety Stores
5399 Miscellaneous General Merchandise Stores
5411 Grocery Stores, Supermarkets
5499 Miscellaneous Food Stores — Convenience Stores, Markets, Specialty Stores and Vending Machines
5541 Service Stations (with or without Ancillary Services)
5542 Fuel Dispenser, Automated
5732 Electronic Sales
5734 Computer Software Stores
5735 Record Shops
5812 Eating Places, Restaurants
5814 Fast Food Restaurants
5912 Drug Stores, Pharmacies
5921 Package Stores, Beer, Wine, and Liquor
5941 Sporting Goods Stores
5942 Book Stores
153
Operating Guide OG201702
22
5943 Office, School Supply and Stationery Stores
5964 Direct Marketing—Catalog Merchants
5965 Direct Marketing—Combination Catalog—Retail Merchants
5966 Direct Marketing—Outbound Telemarketing Merchants
5967 Direct Marketing—Inbound Telemarketing Merchants
5969 Direct Marketing—Other Direct Marketers—not elsewhere classified
5999 Miscellaneous and Specialty Retail Stores
7829 Motion Picture-Video Tape Production-Distribution
7832 Motion Picture Theaters
7841 Video Entertainment Rental Stores
7996 Amusement Parks, Carnivals, Circuses, Fortune Tellers
7997 Clubs—Country Membership
7999 Recreation services—not elsewhere classified
8011 Doctors — not elsewhere classified
8021 Dentists, Orthodontists
8041 Chiropractors
8042 Optometrists, Ophthalmologists
8043 Opticians, Optical Goods, and Eyeglasses
8062 Hospitals
8099 Health Practitioners, Medical Services — not elsewhere classified
8999 Professional Services—not elsewhere classified
9399 Government Services —not elsewhere classified
Partial Approvals. When a Debit Card, PIN-authorized Debit Card, or Prepaid Card Authorization request
is sent, the issuer can respond with an approval amount less than the requested amount. When the approved
amount is less than the originally requested amount, Company should prompt the Customer to pay the
difference with another form of payment. If the Customer does not wish to proceed with all or part of the
Transaction (or if the Transaction “times out”), the Company must initiate an authorization reversal
Transaction.
Full and Partial Authorization Reversals. An “authorization reversal” is a real-time Transaction initiated
when the Customer decides that it does not want to proceed with the Transaction or if the Company cannot
complete the Transaction for any reason (e.g., the item is out of stock, the Transaction “times out” while
waiting for the Authorization response, etc.). To initiate an authorization reversal, the Transaction must
have already been authorized but not submitted for Settlement. If the Transaction has already been
submitted for clearing, then the Company should initiate a void, refund, or other similar Transaction so that
the Customer’s open-to-buy is freed up and the available balance is restored. A partial authorization
reversal should be initiated whenever the Company determines that the final Transaction amount will be
less than the amount of the Authorization.
Authorization reversals must be processed by the Company within 24 hours of the original Authorization
request for Card Present Transactions and within 72 hours of the original Authorization Request for Card
Not Present Transactions; provided, however, that Companies in hotel, lodging, cruise line and vehicle
rentals are exempt from this requirement.
Account Balance Response. For some Prepaid Cards, the Issuer is required to include the remaining
available balance on the Cardholder’s account in the Authorization response message. If the remaining
available balance is included, the Company must print it on the Transaction Receipt or display it on a
Customer facing POS Device.
154
Operating Guide OG201702
23
ADDITIONAL REQUIREMENTS APPLICABLE TO PIN-AUTHORIZED DEBIT CARD
TRANSACTIONS
Debit Card Rules. Company will comply with and be bound by the Debit Card Rules, which are
incorporated by this reference as if fully set forth herein. Except as otherwise provided below, Company
must comply with the general Card acceptance and Transaction processing provisions in this Chapter when
accepting Debit Cards. The Debit Card Rules are confidential information of the Payment Networks, and
Company will not disclose the Debit Card Rules to any Person except as may be permitted under the
Agreement or under requirements of Laws.
Use and Availability of POS Devices and PIN Pads.
A Cardholder’s Debit Card information and PIN are confidential. The Company may not request or
require a Cardholder to disclose his or her PIN at any point during a Transaction.
During the Transaction process, the Company must provide a reasonably secure area for Cardholders
to enter their PIN into the PIN Pad. Company is responsible for installing the POS Device and PIN Pad
in such a way that Cardholders may enter their PIN into the PIN Pad in a confidential manner.
Company will cause a POS Device and PIN Pad to be readily available for the use of all Cardholders
at all of Company’s business locations where PIN-authorized Debit Cards are accepted. Company will
take all reasonable steps to ensure that all POS Devices and PIN Pads operated at Company’s business
locations function with a minimum of error, in a reliable manner, and in accordance with the standards
established from time to time by Servicer and the EFT Networks.
Company will use a POS Device to initiate every PIN-authorized Debit Card Transaction, and
Company will require that either the Cardholder or the Company insert and “swipe” the Debit Card
through the POS Device to initiate every PIN-authorized Debit Card Transaction, except as set forth
herein. No PIN-authorized Debit Card Transaction may be initiated unless the Debit Card is physically
present.
Company will require that each Debit Cardholder enter his or her PIN utilizing a PIN Pad at the POS
Device when initiating a PIN-authorized Debit Card Transaction. Company may not require a Debit
Cardholder initiating a PIN-authorized Debit Card Transaction to sign a Transaction Receipt or other
receipt, or require any other means of identification.
No Minimum or Maximum. Company will not establish minimum or maximum Debit Card Transaction
amounts except to establish a maximum cash back dollar amount not to exceed $200.00 or such lower
amount as may be required under applicable Payment Network Rules.
Pre-Authorization Requests. Company may initiate pre-authorization requests pursuant to the following
procedures:
The Cardholder must enter the PIN on the PIN Pad.
The Debit Card must be inserted and “swiped” through the POS Device.
The pre-authorization request must be for a specific dollar amount and only goods and services,
including applicable taxes, may be purchased. The subsequent purchase pre-authorized hereunder must
be completed within two (2) hours after the original pre-authorization request.
Funds will not be transferred with respect to a pre-authorization request.
In order to complete the subsequent purchase pre-authorization, Company will transmit a completion
message indicating the actual dollar amount of the Debit Card Transaction, and will comply with all
requirements of a purchase Debit Card Transaction, at that time, except that entry of a PIN and
“swiping” of a Debit Card is not required to complete the subsequent purchase if these steps were
properly taken in order to pre-authorize such purchase. Such subsequent purchase will not be
authorized or completed unless the actual dollar amount of the purchase is less than or equal to the
amount specified in the pre-authorization request.
155
Operating Guide OG201702
24
If Company initiates pre-authorization requests, it will support the processing of partial pre-
authorizations.
Debit Card Transactions. Companies that accept PIN-authorized Debit Cards will support the following
Debit Card Transactions:
Purchases, and
Merchandise credits.
Company may also support the following Debit Card Transactions if supported by the applicable EFT
Network:
Purchase with cashback, and
Balance inquiries.
Prohibited Transactions. Company will initiate Transactions only for products or services approved by
Servicer. In no event will Company initiate, allow, or facilitate a gambling or gaming transaction, or fund a
stored value account for such purposes.
Transaction Receipt Requirements. At the time of any Debit Card Transaction (other than a balance
inquiry or pre-authorization request), Company will make available to each Cardholder a Transaction
Receipt that complies fully with all Laws and containing, at a minimum, the following information:
Amount of the Debit Card Transaction;
Date and local time of the Debit Card Transaction;
Type of Transaction;
If during the Debit Card Transaction the Cardholder is prompted to select the type of account used,
then the type of account accessed must be displayed on the Transaction Receipt;
Truncated Debit Card number (showing the final four (4) digits);
Company’s name and location at which the Debit Card Transaction was initiated;
Trace or retrieval reference number;
Authorization Code;
Unique number or code assigned to the POS Device at which the Debit Card Transaction was made;
and
Status and disposition of transaction (approved or declined).
Merchandise Returns. Company may electronically perform a merchandise return (if permitted by the
applicable EFT Network) for a Debit Card Transaction only at the same Company named on the
Transaction Receipt where the original Debit Card Transaction was initiated. If permitted, a merchandise
return requires the following procedures:
The Cardholder must re-enter the PIN on the PIN Pad;
The Debit Card must be inserted and “swiped” through the POS Device; and
Company must transmit the reference number or Authorization Code and the exact dollar amount of
the Debit Card Transaction to be returned.
For all merchandise returns or any other debit return initiated through Company’s POS Device or account,
Company bears all responsibility for such Transaction even if fraudulent.
Balance Inquiries. Company may accommodate balance inquiries if the applicable EFT Network and the
Issuer support the balance inquiry function, provided that the Company requires that the Cardholder enter
their PIN on the PIN Pad and insert and “swipe” the Debit Card through the POS Device.
156
Operating Guide OG201702
25
Purchase with Cash Back. Company may offer purchase with cash back Transactions pursuant to the
following procedures:
For each purchase with cash back, Company will transmit in its Transaction message the amount of
cash given to the Cardholder (if permitted by Servicer’s Debit System).
If a request for Authorization of a purchase with cash back is denied solely because the cash requested
exceeds the Debit Card Issuer’s limit on cash withdrawals, Company will inform the Cardholder of the
reason for the denial and that a new purchase Transaction in the amount of the purchase alone might be
approved.
The amount of cash back may be limited by the EFT Networks or Issuer.
Technical Problems. Company will ask a Cardholder to use an alternative means of payment if the
Servicer Debit System, the POS Device, or the PIN Pad is inoperative, the electronic interface with any
EFT Network is inoperative, or the magnetic stripe on a Debit Card is unreadable, and Company elects not
to or is unable to store Debit Card Transactions.
Adjustment. A Debit Card Transaction may be adjusted if an error is discovered during Company’s end-
of-day balancing only by means of a written request from Company to Servicer. The request for adjustment
must reference a settled Debit Card Transaction that is partially or completely erroneous or a denied pre-
authorize Transaction for which the pre-authorization request was approved. An adjustment must be
completed within forty-five (45) days after the date of the original Debit Card Transaction.
Termination/Suspension. When requested by any EFT Network, in its sole discretion, Company will
immediately take action to: (i) eliminate any fraudulent or improper Transactions; (ii) suspend the
processing of Debit Card Transactions; or (iii) entirely discontinue acceptance of Debit Card Transactions.
SPECIAL REQUIREMENTS APPLICABLE TO INTERNET PIN-BASED CARD TRANSACTIONS
Acceptance of Internet PIN-Based Card Transactions. This section describes certain special
requirements applicable to Internet PIN-Based Card Transactions. Except as specifically provided in this
section, Company will comply with the general provisions of this Chapter regarding PIN-authorized Debit
Card Transactions with respect to Internet PIN-Based Card Transactions. For the avoidance of doubt,
Internet PIN-Based Card Transactions are Card Not Present Transactions. Therefore, notwithstanding
anything in this Operating Guide to the contrary, Company is not required to “swipe” a Card in conjunction
with any Internet PIN-Based Card Transaction and the Cardholder and the Card are not required to be
present at the time of the sale. Fees for Internet PIN-Based Card Transactions will include Authorization,
Interchange and access fees, as defined by the respective EFT Network or International Network.
Domestic Internet PIN-Based Debit Card Processing Services. If Company has elected to receive
Domestic Internet PIN-Based Debit Card Processing Services, Company may submit for processing
Domestic Internet PIN-Based Debit Card Transactions involving Debit Cards issued for acceptance over
those EFT Networks identified by Servicer from time to time. Company acknowledges that Servicer may
not be able to accept Transactions for Debit Cards on all the EFT Networks.
International Network Requirements.
a. If Company has elected to receive International Internet PIN-Based Card Processing Services,
Company may submit for processing International Internet PIN-Based Card Transactions involving
Cards issued for acceptance over the International Networks identified on Schedule A (Schedule of
Fees) to the Agreement.
b. Company is not permitted to submit International PIN-Based Credit Card Transactions for processing
pursuant to this Chapter unless specifically indicated on Schedule A (Schedule of Fees) to the
Agreement.
157
Operating Guide OG201702
26
c. Except to the extent superseded by this Chapter, Company’s acceptance and processing of
International Internet PIN-Based Card Transactions will comply with the provisions of the Operating
Guide applicable to acceptance and processing of PIN-based Debit Card Transactions, and references
to “Debit Cards” in such provisions will be understood to include International Debit Cards (and, if
Company is permitted to accept International PIN-Based Credit Card Transactions pursuant to
Schedule A (Schedule of Fees) to the Agreement, International Credit Cards).
d. If Company supports Internet PIN-Based Card Transactions, Company will comply with and be
bound by the International Network Requirements and Internet PIN-Based Card Transaction
Documentation, which are incorporated by this reference as if fully set forth herein. The International
Network Requirements and Internet PIN-Based Card Transaction Documentation are confidential
information of the International Networks or of Servicer, as applicable, and Company will not
disclose the International Network Requirements or the Internet PIN-Based Card Transaction
Documentation to any Person except as may be permitted under the Agreement or under requirements
of Laws. If compliance with this Chapter, any other part of the Operating Guide, or the Agreement
would cause Company to violate applicable International Network Requirements or Laws, Company
will comply with such International Network Requirements or Laws.
Use and Availability of Internet PIN Pads.
A Cardholder’s Card information and PIN are confidential.
During the Transaction process, an Internet PIN Pad with appropriate technology will be used to
maintain the confidentiality of the Cardholder’s Card information and PIN.
Company will use appropriate technology for every Internet PIN-Based Card Transaction so as to
prevent the unauthorized recording or disclosure of a Cardholder’s PIN.
Company will take all reasonable steps to ensure that all Internet PIN Pads operated at Company’s
internet website function with a minimum of error, in a reliable manner, and in accordance with the
standards established from time to time by Servicer and the applicable EFT Networks or International
Networks.
Company will require that each Cardholder enter his or her PIN on an Internet PIN Pad when initiating
an Internet PIN-Based Card Transaction.
Surcharges. Company may not add any amount to the posted price of goods or services Company offers
as a condition of paying with a Card except as permitted by the Operating Guide and the applicable Card
Rules or International Network Requirements.
Transaction Receipt Requirements. At the time of any Internet PIN-Based Card Transaction,
Company will make available to each Cardholder a Transaction Receipt that complies with all
International Network Requirements and Laws and includes:
Amount of the Internet PIN-Based Card Transaction, or if a Convenience Fee applies, the amount
debited from the Cardholder’s account (exclusive of the Convenience Fee, shipping, handling and
other fees), and the amount debited from the Cardholder’s account (inclusive of the fees);
Description of the goods or services and, for transactions involving the shipment of goods, the
promised ship-by date;
Date and local time (at Company’s physical address) of the Internet PIN-Based Card Transaction;
Type of Transaction;
Authorization Code, if available;
Type of account accessed;
Truncated Card number (showing the final four (4) digits);
Cardholder’s name, email address, and telephone number;
Company’s name, Merchant Identification Number, customer service contact information, and the
website address at which the Internet PIN-Based Card Transaction was initiated; and
Trace or retrieval reference
Refunds / Cashback / Balance Inquiries. If permitted by the applicable International Network or
EFT Network, Company may electronically perform a merchandise return or refund for an Internet
158
Operating Guide OG201702
27
PIN-Based Card Transaction. However, credits, balance inquiries and purchases with cash back cannot
be performed as Internet PIN-Based Card Transactions.
Merchandise Returns. Company may electronically perform a merchandise return (if permitted by
the applicable EFT Network or International Network) for an Internet PIN-Based Card Transaction
only if Company initiates the original Internet PIN-Based Card Transaction. If such returns are
permitted, Company will transmit the reference number or authorization number and the exact dollar
amount of the Internet PIN-Based Card Transaction to be refunded.
Technical Problems. Company will ask a Cardholder to use an alternative means of payment if the
Servicer Debit System, the Internet PIN Pad, or the electronic interface with any EFT Network or
International Network is inoperative.
Termination / Suspension. When requested by Servicer, Company will immediately (i) eliminate any
fraudulent or improper Transactions; (ii) suspend or terminate the acceptance of Internet PIN-Based Card
Transactions with respect to a specific EFT Network or International Network; or (iii) suspend or terminate
the acceptance of all Internet PIN-Based Card Transactions.
Risk of Internet PIN-Based Card Transactions. Company understands that Internet PIN-Based Card
Transactions may be high risk and there is a risk that a Cardholder’s PIN may be tracked or improperly
disclosed if the Internet PIN Pad and other appropriate security technology is not in place. Company is
responsible for implementing and maintaining its own security technology. Accordingly, Company
indemnifies Servicer against any claims made by a Cardholder regarding the unauthorized disclosure of
such Cardholder’s PIN in any Internet PIN-Based Card Transactions submitted to Servicer for processing.
OTHER TRANSACTION TYPES
Company may solicit the following other Transaction types provided that (a) Company discloses such
method of processing to Servicer in the Company Application or otherwise in writing, (b) Company has
been approved by Servicer to submit such Transactions, and (c) Company meets the additional
requirements for the applicable type of Transaction set out below. If Company completes any of these
Transaction types without having received Servicer’s approval, then Company will be in breach of the
Agreement and Servicer may terminate the Agreement in addition to any other remedies available under the
Agreement, Laws, or Payment Network Regulations, and Company may pay a surcharge on each such
Transaction.
RECURRING PAYMENTS AND PRE-AUTHORIZED ORDERS
Recurring Payments are Transactions for which a Cardholder provides written permission or electronic
authorization to a Company to periodically charge his or her Card for recurring goods or services (e.g.,
monthly membership fees, utility bills, insurance premiums, or subscriptions). When processing Recurring
Payments, you must obtain a separate Authorization Code for each Transaction.
Pre-authorized Orders are Transactions in which the Cardholder provides written or electronic
authorization to charge his or her Card, one or more times, at a future date. You must be authorized by us to
process Pre-authorized Orders.
You must obtain a signed order form or other written agreement from the Cardholder for all Recurring
Payments and Pre-authorized Orders. The order form or agreement must contain the following information:
Card number
Card expiration date
Cardholder’s name
Cardholder’s signature
159
Operating Guide OG201702
28
Transaction amount (charged to the Cardholder’s Card)
Charge frequency (weekly, monthly, etc.)
Length of time over which the recurring charges will occur
The words “Recurring Payment” or “Pre-authorized Order” written on the signature line of the
Transaction Receipt
You must keep a copy of the order form or written agreement for the duration of the recurring service. You
must also provide a copy of the order form or agreement for Recurring Payments or Pre-authorized Orders
to us upon request. A new order form or written agreement with the Cardholder is needed when a Recurring
Payment is renewed.
Recurring Transaction Requirements. Company will not complete any recurring Transaction after
receiving: (i) a cancellation notice from the Cardholder; (ii) a notice from Servicer that authority to accept
recurring Transactions has been revoked; or (iii) a response that the Payment Device is not to be honored.
Company is responsible for ensuring its compliance with Laws with respect to recurring Transactions.
Limitations on the Resubmission of Recurring Transactions. In some limited instances, Company may
resubmit a declined preauthorized recurring Transaction up to four (4) times within sixteen (16) calendar
days of the original Authorization request, provided that the decline response is one of the following: (i)
authorization denied; (ii) insufficient funds; (iii) exceeds approval amount limit; or (iv) exceeds withdrawal
frequency.
Recurring Transaction Receipts. Company must print legibly on the Transaction Receipt the words
“Recurring Transaction.” Company must obtain the Cardholder’s signature, which may be an electronic
signature or other similar authentication that is effective under applicable Laws, on the Transaction
Receipt. Company must also include the frequency and duration of the Recurring Transaction
authorization, as agreed to by the Cardholder, on the Transaction Receipt.
Electronic Commerce Recurring Transactions. In addition to the above, for an Electronic Commerce
Transaction, Company must also provide a simple and easily accessible online cancellation procedure that
complies with Laws, if the Cardholder’s request for goods or services was initially accepted online.
Recurring Transactions with Varying Amounts. For Recurring Transactions of varying amounts, all of
the following apply: (i) the order form must allow the Cardholder to specify a minimum and maximum
Transaction amount to be charged, unless the Cardholder will be notified of the amount and date of each
charge, as specified in the remainder of this section; (ii) Company must inform the Cardholder of their right
to receive, at least ten (10) calendar days prior to each scheduled Transaction Date, written notification of
the amount and date of the next charge; and (iii) the Cardholder may choose to receive the notification in
any of the following ways: (a) for every charge; (b) when the Transaction amount does not fall within the
range of amounts specified on the order form; or (c) when the Transaction amount will differ from the most
recent charge by more than an agreed upon amount. Company is responsible for ensuring that all
communications with, and disclosures to, Cardholders comply with Laws.
To perform a Pre-authorized Order, follow these specific guidelines:
Separately authorize each Transaction for the exact amount of that Transaction, instead of authorizing
the entire amount of all the Transactions or no amount at all.
If applicable to the Transaction, write the words “Delayed Delivery,” and “Deposit” or “Balance” on
the Transaction Receipt. The Authorization date and Authorization Code must also be printed on the
Transaction Receipt.
While you may process the Transaction for the “Deposit” before delivery of the goods and/or services, you
may not process the “Balance” of the Transaction until the goods and/or services are delivered.
160
Operating Guide OG201702
29
QUASI-CASH TRANSACTIONS
Quasi-Cash Transactions represent the sale of items that are directly convertible to cash. Examples of
Quasi-Cash Transactions include:
Casino gaming chips
Money orders
Deposits
Wire transfer money orders
Travelers cheques
Travel money cards
Foreign currency
You must be authorized by us to process Quasi-Cash Transactions. No Company may process a Quasi-
Cash Transaction as a cash disbursement.
ACCEPTANCE AND ADDITIONAL REQUIREMENTS
In addition to the general requirements described in Chapter 2, Transaction Receipts, Companies
processing Quasi-Cash Transactions must:
Review identification (such as a valid passport or driver’s license) to validate the Cardholder’s
identity.
Record the type of identification presented by the Cardholder on the Transaction Receipt, along
with the serial number, expiration date, and Cardholder name (if different than the embossed name
on the Card) and address.
For Visa and MasterCard: Record the printed four digits from the face of the Card (found above or
below the embossed account number) on the Transaction Receipt. Refer to Chapter 4, Unique
Card Characteristics for more information.
For Discover Network: Record the printed three digits on the signature panel on the back of the
Card on the Transaction Receipt. Refer to Chapter 4, Unique Card Characteristics for more
information.
Compare the first four digits of the Card account number on the printed Transaction Receipt with
the first four digits of the embossed Card account number. If they do not match, decline the
Transaction and attempt to recover the Card (reasonably, lawfully, and peacefully), while also
noting a description of the Cardholder.
CONTACTLESS TRANSACTIONS
The Contactless Transaction requirements are as follows:
Participation. Company is responsible for:
1. Ensuring that all POS Devices that accept Contactless Cards for Transactions meet the applicable
Credit Card Association specifications, are approved by Servicer and/or the applicable Credit Card
Associations for use with Contactless Cards, and are configured to transmit the data elements required
for Contactless Transactions.
2. Complying with all Payment Network Regulations applicable to Transactions conducted with
Contactless Cards, including all operating requirements, technical guides and other requirements
specified by the applicable Credit Card Associations in connection with the acceptance of Contactless
Cards.
161
Operating Guide OG201702
30
Registration. It is Company’s responsibility to ensure that it is eligible and has been approved by Servicer
to accept Contactless Cards, and that Company has been registered with the applicable Credit Card
Associations to participate in their respective Contactless Card payment program(s).
Processing. Company is responsible for:
1. Providing any data in the Authorization request as required by the applicable Credit Card Associations.
2. Transmitting the full and unaltered contents of Track 1 or Track 2 data of the Card’s Magnetic Stripe
or Contactless payment chip in the Authorization request.
3. Ensuring that Transactions are not processed as Contactless Transactions if currency conversion is
performed.
4. Submitting only a single Authorization per clearing Transaction.
Companies that are eligible for both a Credit Card Association’s No Signature Requirement Program and to
accept Contactless Cards may combine these programs to further enhance the benefits of accepting
Contactless Cards and participating in a No Signature Required Program.
162
Operating Guide OG201702
31
Chapter
3
Settling Daily Transactions
This Chapter describes how to settle your daily Transactions. The guidelines for Settlement within this Chapter
can help you:
Eliminate balancing errors
Promptly record deposits to your DDA
Prevent duplicate billing to customers
Minimize Chargebacks
SETTLING THE DAILY BATCH
To settle the daily Batch, perform the following steps:
1. Total the day’s Transaction Receipts and Credit Transaction Receipts.
2. Verify that the Transaction Receipts equal the POS Device totals. You may print a report from
your POS Device to assist you with balancing. For more information about balancing, refer to the
instructions that came with your POS Device.
If the totals do not balance, then do the following:
Compare the Transaction Receipts to the individual entries in the POS Device.
Make any necessary adjustments before transmitting or closing the Batch. To make adjustments,
refer to the instructions for your POS Device.
3. Close the Batch according to the instructions for your POS Device.
NOTE: Submit your Transactions for processing daily to obtain the most favorable pricing.
PAPER DEPOSITS
If you are not using a POS Device, you must deposit Discover Network, Visa and MasterCard Transaction
Receipts or Credit Transaction Receipts within three (3) business days, except:
1. The Transaction Receipts or Credit Transaction Receipts must not be presented until after the products
are shipped or the services are performed unless, at the time of the Transaction, the Cardholder agrees
to a properly disclosed delayed delivery of the products or services.
2. When the Company receives Cardholder authorization for a delayed presentment (in which case the
words “Delayed Delivery” must be noted on the Transaction Receipt or Credit Transaction Receipt).
163
Operating Guide OG201702
32
3. When the Company is obligated by law to retain the Transaction Receipt or Credit Transaction Receipt
or return it to a Customer upon timely cancellation, in which case the Company should present the
record within ten (10) business days after the Transaction date.
4. When the Company has multiple locations and uses a central facility to accumulate and present records
to Servicer, in which event the Company must present the record in accordance with applicable law
and, in any event, within thirty (30) calendar days of the Transaction date.
Please include a Batch Header with your Transaction Receipts.
PREPARING PAPER DEPOSITS
To prepare a paper deposit, follow these steps:
1. Place your Company Identification Card and the Batch Header in the Imprinter.
2. Imprint the information onto the Batch Header.
3. Enter the total number and dollar amount of Transaction Receipts. It is not necessary to separate the
Discover Network, Visa and MasterCard Transaction Receipts.
4. Enter the total number and dollar amount of Credit Transaction Receipts.
5. Review the Transaction Receipts and Credit Transaction Receipts to make sure they bear legible
Discover Network, Visa or MasterCard numbers and amounts. Visa uses 16-digit account numbers
beginning with a “4” and MasterCard uses 16-digit account numbers beginning with a “5.” Discover
Network uses 16-digit account numbers beginning with a “6.”
6. Enter the net amount of the Transaction Receipts and the Credit Transaction Receipts.
7. Fill in the date and your DDA (Demand Deposit Account) number.
8. Place the bank copy of all Transaction Receipts and Credit Transaction Receipts behind the Batch
Header and insert them into the Company deposit envelope, which is addressed to the paper processing
center. If you need additional Company deposit envelopes, please contact merchant services.
9. Retain a copy of the Batch Header, along with your copies of the Transaction Receipts and Credit
Transaction Receipts for your records.
10. Make sure the paper processing center address is on the front of the envelope.
11. Mail the Company deposit envelope.
12. Store paper drafts appropriately. For storage requirements for paper drafts in compliance with the PCI
Data Security Standard, visit:
http://www.pcisecuritystandards.org/security_standards/pci_dss.shtml.
ADJUSTMENTS
If we detect an imbalance between your Batch Header and the attached Transaction Receipts, we make an
adjustment to your DDA and send you an adjustment notice. Remember, adjustments differ from
Chargebacks. If you have any questions concerning an adjustment, contact merchant services.
The most common reasons for adjustments include:
The Transaction Receipts received do not match the amount shown on the Batch Header.
A Card number is invalid or illegible. To receive credit, you must correct the number and resubmit the
Transaction Receipt with a new Batch Header.
Your DDA was credited in error or has been debited to reflect a Negative Deposit.
Remember to reconcile your monthly Company Statements with your DDA statement, along with any
adjustment notices you may have received.
164
Operating Guide OG201702
33
Chapter
4
Preventing Card Fraud
It is important to take steps to educate yourself and your staff to reduce your risk of accepting a counterfeit or
fraudulent Card Transaction. Remember that you are responsible for all Chargebacks, including those for
fraudulent Transactions. Fraudulent Card sales involve an invalid Card account number or, more commonly, a
valid Card number presented by an unauthorized user. Fraud normally occurs within hours of the loss, theft, or
compromise of a Card number or Card, and before most victims report the Card missing or discover the
compromise.
If a Transaction is declined, do not request a Code 10 Authorization and do not complete the Transaction.
However, if you receive an Approval Code but suspect a Card has been altered or is counterfeit, call the Voice
Authorization Center and request a Code 10 Authorization (see Chapter 5, Code 10 Procedures).
The following sections provide tips to assist you in protecting yourself against fraud losses.
IDENTIFYING SUSPICIOUS CUSTOMER ACTIONS
Common sense is the best guide for spotting suspicious behavior. Be sure you combine watchfulness with
proper Card identification and validation techniques.
Be aware of customers who:
Make indiscriminate large dollar purchases without regard to size, color, style, or price
Question the sales clerk about credit limits or the Authorization process
Attempt to distract the sales clerk (e.g., continually delay selections, talk continuously)
Hurry a clerk at quitting time
Purchase a high-ticket item, such as a wide-screen HDTV monitor or other large item, and insist on
taking it immediately, rather than having it delivered—even when delivery is included in the price
Buy a high-ticket item and request that it be sent next day air or request for someone else to pick up the
purchase at a later time
Pull a Card from a pocket rather than a wallet
Sign the Transaction Receipt in a deliberate or unnatural manner
Appear too young to make purchases with a Card
165
Operating Guide OG201702
34
Buy clothing without trying it on for size or decline alterations that are included in the price
Charge expensive items on a newly valid Card
Do not have a driver’s license, tell you that his or her driver’s license is in the car, or provide only a
temporary license without a photo
Do not ask questions on major purchases
Make purchases, leave the store, and return to make more purchases
Make purchases just after the store opens or just before it closes
Use a Card belonging to a friend or relative
Ship purchases to an address outside of the U.S.
Recite the Card number from memory rather than presenting the Card itself
Ask to see the Card again before signing the Transaction Receipt
IDENTIFYING SUSPICIOUS CARD NOT PRESENT TRANSACTIONS
The increased use of Electronic Commerce, mail, and telephone orders has resulted in an increasing amount
of fraud. If you accept Card Not Present Transactions, take caution if a customer attempts to:
Request delivery to a freight forwarder
Order goods and/or services via a free e-mail service
Request that an order be rushed and wants a tracking number as soon as possible
Purchase items that the company does not sell (the most common items are laptop computers and
cellular phones)
Use more than one Card for any given purchase (also known as a “Split Ticket”)
Use Cards that have sequential numbers or patterns
Place an unusually large or uncommon order compared to your typical Transactions
Use a Card issued by a foreign bank along with one of the other actions within this list
Request delivery to a post office box
Request delivery to a foreign country
Utilize phone relay service where the Cardholder does not speak directly to the Company
E-mail purchase orders that involve multiple Card accounts in which each order includes the same
product and dollar amount. This is sometimes common for Transactions resulting in foreign Card fraud
Place an order and then call back to place subsequent orders using the same or different Cards
You should be particularly careful if you sell products that are easily resold. For example, computers and
computer equipment, printer cartridges, and jewelry are more susceptible to fraud than perishable items
such as food—although criminals can victimize virtually any type of business.
NOTE: If you receive an order for a large purchase for delivery to a foreign country or to a freight
forwarder, we recommend that you contact your Voice Authorization Center to request a Code 10
specifically identifying the Transaction as a large foreign shipment Transaction.
166
Operating Guide OG201702
35
IDENTIFYING VALID CARDS
Cards share similar qualities to help identify their validity, and there are anti-fraud safeguards unique to
each Card brand.
CARDS AND SIGNATURES
You should not accept a Card that is not signed. Many Card users write “Use other ID” (or something
similar) in the signature panel because they believe it provides a higher level of security. This is not
actually true, it simply allows a thief to sign his or her own name or use a fake ID with any signature.
If an unsigned Card is presented to you:
1. Inform the customer that the Card must be signed.
2. Have the customer sign the Card in your presence and provide a current, valid government ID that
has been signed (such as a passport or driver’s license). Do not accept a temporary form of ID,
such as a temporary driver’s license that does not have a photo.
3. Compare the signature on the ID to that on the Card.
4. If the customer refuses to sign the Card, do not complete the Transaction. Remember, you are
liable for any Transaction processed with a fraudulent Card.
CARD PROCESSING TIPS
After you swipe a Card, the POS Device prompts you for specific information. The POS Device may
also prompt you to enter the last four digits of the account number to verify that the embossed account
number matches the number on the Magnetic Stripe (on the back of the Card). If the numbers do not
match, the POS Device indicates a mismatch of the digits or an invalid Card. Do not accept the Card.
Once you receive an Approval Code, verify that the Card number on the Transaction Receipt matches
the number embossed on the Card. If it does not match, do not accept the Card.
CHARACTERISTICS OF MOST CARDS
These characteristics typically apply to most Card brands.
Overall Card Quality: A Card may be any color (but is never faded or washed out) or feature a
background pattern or photograph. The Card’s edge should be smooth and clean, never rough. The
print should be crisp and clear.
Matching Account and BIN Numbers: An identical series of numbers (known as the Bank
Identification Number [BIN]) is printed directly above or below the first four embossed numbers
on the Card and in the signature panel.
Embossing Quality: A hot iron is sometimes used to smooth embossed numbers and then emboss
new numbers. When this is done, the numbers can appear irregular in spacing or in vertical
alignment, or there can be a slight “halo” around the numbers. This technique is also used to
modify the expiration date, so check both the month and the year for alterations. Refer to Chapter
4, Examples of Tampering for details.
Hologram Quality: An authentic Hologram should reflect light and change in appearance as you
move the Card. It should barely catch your fingernail, but should not be such that you can peel it
off. A fake Hologram is often a sliver of tin foil that lacks the features of an authentic Hologram.
Card Account Number and Card Identification Number: The signature panel on the back of
the Card should include either the entire Card account number or its last four digits, followed by
the Card Identification Number. These numbers should be printed in reverse italics and should
match the embossed numbers.
167
Operating Guide OG201702
36
Signature Panel Quality: The signature panel should not be defaced (e.g., peeled-off white
plastic, smudged imprinting, or “void” appearing in the signature panel). Refer to Chapter 4,
Examples of Tampering for details.
Signature Panel Print Design: With the exception of some ATM Cards and various store-
branded Cards, signature panels are rarely plain white. They usually contain an overprint or
watermark.
UNIQUE CARD CHARACTERISTICS
For the unique Card design elements specific to the Cards, please visit the following Card websites.
MasterCard: http://www.mastercard.com/us/personal/en/aboutourcards/credit/index.html
Visa: http://usa.visa.com/personal/cards/credit/index.html
American Express: http://www201.americanexpress.com/getthecard/home
Discover Network: http://www.discovercard.com
EXAMPLES OF TAMPERING
The following section identifies common Card tampering techniques. Although an American Express
Card is used in the examples, these tampering methods are widespread among all Card types.
FRAUDULENT EMBOSSING
Characteristics of fraudulent Embossing include:
Figure 4-5. Example of Fraudulent Embossing
The black ink on the Card number (1) or Cardholder name (2) is smudged or messy.
The Embossed numbers are crooked, out of line, or unevenly spaced (2).
The typeface of the Card account number does not match the rest of the Card typeface (2).
The Card number embossed on the front does not match the number printed on the back (1).
ALTERED MAGNETIC STRIPE
Characteristics of altered Magnetic Stripes include:
The Card number on the printed Transaction Receipt does not match the number embossed on the
front of the Card or imprinted on the back.
168
Operating Guide OG201702
37
The name printed on the Transaction Receipt does not match the name embossed on the Card.
The Magnetic Stripe is deliberately scratched or altered making it necessary to manually key the
Card account number.
The signature panel has been whited out, taped over or erased.
IDENTIFYING SUSPICIOUS EMPLOYEE ACTIONS
Be aware - not all Card fraud is committed by Customers. Sometimes employees engage in fraud using the
following activities:
Record Card Numbers: Employees may pocket receipts left behind by Cardholders or may write
Card numbers on another piece of paper.
Use Card Skimmers: Employees may use a Card skimmer (i.e., a battery-operated, hand-held
electronic device) that reads a Card’s Magnetic Stripe and records it to memory. Card numbers are
then downloaded from the skimmer and used to make counterfeit Cards or make unauthorized
purchases. Some Card companies offer a reward for information leading to the arrest and conviction of
anyone involved in the manufacture or use of counterfeit Cards.
Process Credit Transactions to Personal Card Accounts: Employees may issue credits to their own
Card or to an accomplice’s Card using the Company’s POS Device. Often these credits do not have an
offsetting prior sale.
NOTE: Most POS Device products allow a Company to require a password in order to process a Credit
Transaction.
To help prevent employee-related fraud, do the following:
Reconcile your work daily rather than monthly.
Password protect your POS Device, if this feature is available.
Disable the credit function on your POS Device.
Secure your POS Device during non-business hours.
FACTORING
Factoring (also known as Laundering) occurs when you process another person’s transactions through your
Company account. Processing transactions which belong to another person or business is in violation of the
Agreement and is prohibited by law in many states. Factoring may result in the termination of your Card
acceptance privileges.
Be wary of the “fellow business person” who offers to pay you to process card transactions in return for a
fee. These transactions are often questionable or fraudulent. These schemes typically result in a flood of
Chargebacks which are debited from your DDA. By the time you realize this has occurred, the other
business will most likely have relocated under a different name.
To protect you from these schemes and the devastating losses that ensue, educate yourself and your staff
about this serious problem and immediately report Factoring propositions to us or to the U.S. Secret
Service. Remember, you are responsible for all transactions processed using your MID, so make sure that
all transactions processed through your account represent transactions between you and the Cardholder.
Company will not present for processing or credit, directly or indirectly, any Transaction not
originated as a result of a transaction directly between Company and a Cardholder or any
Transaction Company knows or should know to be fraudulent or not authorized by the Cardholder.
Perpetrators of fraudulent Transactions will be referred to law enforcement officials. Company will
not deposit any Transaction Receipt representing the refinancing of an existing obligation of a
Cardholder.
169
Operating Guide OG201702
38
Chapter
5
Code 10 Procedures
Code 10 is a term used by the Credit Card Associations to refer to suspicious or questionable Transactions,
Cards, or Cardholders.
If you are suspicious of a Card Transaction, contact your Voice Authorization Center and request a Code 10
Authorization. Using the term “Code 10” allows you to call the Voice Authorization Center to question the
Transaction without alerting the Cardholder. Follow the instructions given to you on how to proceed to
minimize any discomfort between you and the Cardholder.
NOTE: Be alert to individuals who contact your business via phone or the Internet attempting to make
large purchases for overseas shipment, direct or through a freight forwarder. These individuals may
utilize one or more Cards in their “urgent” request. If you receive such a request, we encourage you to
contact your Voice Authorization Center to request a Code 10, specifically identifying the Transaction
as a large foreign shipment Transaction.
NOTE: Fraudulent transactions, even when authorized, are subject to Chargebacks, and final
payment is not guaranteed.
CODE 10 AUTHORIZATION NUMBERS
To request a Code 10 Authorization for a Discover Network, Visa or MasterCard Transaction, call the
telephone number on your Voice Authorization sticker (located on the POS Device). To request a Code 10
Authorization for American Express, call one of the following numbers:
(800) 528-2121 (provides Approval Codes and verifies names and addresses)
(800) 876-9786 (validates consumer information)
WHAT TO DO WITH AN UNAUTHORIZED CARD
If you are informed that a Card has been reported lost or stolen, or is otherwise invalid, do not complete the
Transaction.
Card Recovery. If Company chooses to recover any Card, Company will use reasonable, peaceful means
to recover any Card: (i) on Visa Cards, if the printed four digits below the embossed account number do not
match the first four digits of the embossed account number; (ii) if Company is advised by Servicer (or its
designee), the Issuer, or the designated voice authorization center to retain it; (iii) if Company has
reasonable grounds to believe the Card is lost, stolen, counterfeit, fraudulent, or otherwise invalid, or its use
is not authorized by the Cardholder; or (iv) for MasterCard Cards, if the printed four digits below the
embossed account number do not match the first four digits of the embossed account number, or the Card
does not have the “Twin Globes” hologram on the lower right corner of the Card face.
170
Operating Guide OG201702
39
If you are instructed to retain the Card, follow these procedures:
Maintain a record of the Card number in your files.
Cut the Card through the account number lengthwise without damaging the Magnetic Stripe.
Gather the following information:
Company’s name, MID, telephone number, and address
Employee’s name, telephone number, and address
Card account number
Reason for recovery
Mail the information to:
Exception Processing
ATTN: Card Pick Up
Elavon, Inc.
7300 Chapman Highway
Knoxville, TN 37920
NOTE: Do not challenge the Card user. Avoid any physical confrontation with anyone who may be using a
lost, stolen, or otherwise invalid Card. Do not jeopardize your safety or that of your employees or
Customers.
Once the person leaves your location, note in writing his or her physical characteristics and any other
relevant identification information. Keep in mind that a reward may be offered by the Issuer for the
recovery and return of a lost, stolen, or otherwise invalid Card.
171
Operating Guide OG201702
40
Chapter
6
Retrieval Requests and
Chargebacks
A Cardholder or Issuer may dispute a Transaction for any number of reasons, including a billing error, a quality
dispute, or non-receipt of goods and/or services. This Chapter describes the process for handling disputed
Transactions by explaining Retrieval Requests and Chargebacks.
Disputes With Cardholders. All disputes by any Cardholder relating to any Transaction will be settled
between Company and the Cardholder. Servicer does not bear any responsibility for such Transactions or
disputes, other than with respect to processing Chargebacks under the Payment Network Regulations.
NOTIFICATION OF RETRIEVAL REQUESTS AND CHARGEBACKS
Company is fully responsible for all Retrieval Requests and Chargebacks under the Payment Network
Regulations. Upon receipt of a Retrieval Request or Chargeback from a Payment Network, Servicer will
forward such request or documentation to Company. Company is responsible for responding, as
appropriate, to each Retrieval Request or Chargeback, including providing a copy of the relevant
Transaction Receipt to Servicer. In addition, Company will cooperate with Servicer in complying with the
Credit Card Rules and Debit Card Rules regarding Retrieval Requests and Chargebacks. The following is a
non-exhaustive list of reasons for which Company may incur a Chargeback. It is not a complete list of
Chargeback reasons and is intended only to provide the most commonly encountered situations where a
Chargeback may occur:
Failure to respond to a Retrieval Request or failure to provide a legible, complete, or proper copy of a
Transaction Receipt in response to a Retrieval Request
Unauthorized use of a Card as alleged by the Cardholder
Dispute by the Cardholder over the quality of goods or services
Failure by Company to provide goods or services
The Transaction Receipt does not bear the Cardholder’s signature
The Transaction Receipt represents a Transaction for which Authorization was initially declined and
was subsequently obtained by means of multiple Authorization attempts or other means not permitted
hereunder
The Transaction Receipt fails to comply with the terms and conditions of the Agreement or fails to
comply with the Card Rules
The Transaction evidenced by a Transaction Receipt or any other credit extended in respect thereof
includes a cash disbursement made by the Company
172
Operating Guide OG201702
41
The Transaction evidenced by a Transaction Receipt or any other credit extended in respect thereof is
for any reason illegal, null or void
The Transaction Receipt refers to a Card which has expired or which Servicer has notified Company
not to honor
Copies of the Transaction Receipt have been deposited by Company more than once or Servicer has
credited the account more than once with the same Transaction Receipt
The Company has processed a Transaction for goods sold or services performed (or alleged to have
been sold or performed) by parties other than Company
An Electronic Commerce Transaction is or is claimed by the Cardholder to be unauthorized except
where the Company provides Servicer with the appropriate Cardholder authentication verification
value which matches that passed to Company by the Issuer for such Electronic Commerce Transaction
You may elect to receive Retrieval Requests and Chargeback notices by U.S. mail, Autofax or online.
To update or change the way you receive a Retrieval Request or Chargeback notification, contact
merchant services or the Chargeback department at the toll-free telephone number listed on your notice
RETRIEVAL REQUESTS
A Retrieval Request is made by the Issuer on behalf of the Cardholder for a copy of the Transaction
Receipt. A Retrieval Request (also known as a Copy Request) most often occurs when a Cardholder:
Loses his or her copy of the Transaction Receipt;
Does not remember the Transaction; or
Questions the Transaction for any reason.
The Retrieval Request notice you receive will include the following information to help you identify the
Transaction:
Card number. Retrieval Request notices do NOT include the Cardholder’s name, because this
information is not provided by the Issuer.
Dollar amount. For Transactions charged on foreign Cards, the dollar amount may vary because of
currency exchange rates.
Transaction Date. The Transaction Date listed on the Retrieval Request may differ a few days from
the date of the actual Transaction. If you cannot locate a specific Transaction Receipt in your records
for the date specified on the Retrieval Request notice, search your records for three days before and
three days after the Transaction Date listed.
When you receive a Retrieval Request notice, you are required to provide us with a copy of the applicable
Transaction Receipt so we can send it to the Issuer on your behalf. The Transaction Receipt copy must be
clear and legible, signed by the Cardholder, and provided within the time frame specified in the notice.
We suggest you maintain Transaction Receipts in chronological order so that you can retrieve them quickly
and easily when needed. Records may be stored off site, provided they are secure and readily accessible to
the appropriate personnel. Remember, all records must be retained for a minimum of two (2) years.
Your response to a Retrieval Request may be sent by U.S. mail, Autofax or online, as outlined in the
Retrieval Request notice. Due to possible delays using U.S. mail, we recommend that you submit your
response via Autofax, online or send it via overnight mail. If you elect to send your response via U.S. mail,
make sure you allow sufficient time to meet the deadline.
If we do not receive your response to the Retrieval Request by the deadline given, a Chargeback will be
issued and your DDA will be debited for the amount of the Transaction. This type of Chargeback cannot be
reversed. To avoid such Chargebacks, you should make it a priority to respond to Retrieval Request notices
as soon as you receive them.
173
Operating Guide OG201702
42
CHARGEBACKS
A Chargeback is a Transaction disputed by the Cardholder or an Issuer. If you receive a Chargeback, we
debit your DDA for the amount of the Transaction, including any applicable currency fluctuations, and
send you a Chargeback notice. This notice includes the details of the Transaction as well as specific
instructions on how to respond.
There are several situations in which Chargebacks may occur. The most common Cardholder-initiated
disputes include:
Dissatisfaction with the quality of merchandise or services received
Failure to receive merchandise or services
A questionable Transaction
A processing error by Company staff
Unauthorized use of a Card
While it may not be possible to eliminate Chargebacks entirely, you can reduce their occurrence by
resolving issues and disputes directly with the Cardholder and by following the proper Authorization and
processing procedures. Because Chargebacks can be costly to the Company, you should make every effort
to prevent them. Generally, you should remember to:
Avoid duplicate processing of a Transaction.
Work with the Cardholder to resolve disputes regarding the quality of merchandise or services
rendered.
Refuse to process a Transaction when you receive a Declined Code during Authorization.
Call for Voice Authorization, if needed.
Call for a Code 10 Authorization if you are still suspicious of the Cardholder, Card, or Transaction
after receiving an Approval Code.
Follow the procedures for processing Transactions as outlined in Chapter 3, Settling Daily
Transactions.
Include a description of the goods or services on the Transaction Receipt.
Deliver merchandise or services before charging the Card.
Obtain an Authorization Code.
Include the CVV2/CVC2/CID and AVS codes for Card Not Present Transactions, if applicable.
Submit Transaction Receipts on the same day Transactions are authorized.
Make sure an Imprint appears on a manual Transaction Receipt or that the relevant Transaction
information appears on the POS Device-generated Transaction Receipt (see Chapter 2, Transaction
Receipts for more details).
Never accept expired Cards or Cards having effective dates prior to the date of the Transaction.
Make sure the signature on the Transaction Receipt matches the signature on the back of the Card.
Obtain a signature from the Cardholder when merchandise is delivered.
Be cautious of shipments to an address other than the Cardholder’s billing address.
174
Operating Guide OG201702
43
HOW TO RESPOND TO A CHARGEBACK
A Company’s written reply to a Chargeback is known as a Chargeback rebuttal.
You must submit your rebuttal to us in a timely manner so we can present it to the Issuer. If you submit a
valid rebuttal, we issue a provisional credit in the amount of the Transaction to your DDA. The Issuer will
then review your rebuttal to determine if the Chargeback is remedied. If the Issuer determines that the
Chargeback is not remedied, they will initiate a second Chargeback and we debit your DDA a second
time.
You must submit a legible and valid rebuttal within the time frame specified in the Chargeback notice.
Failure to do so will delay credit to your DDA and may result in a waiver of your right to rebut the
Chargeback.
For more information on rebuttal procedures, contact the Chargeback department using the toll free number
provided in the Chargeback Notice.
CHARGEBACKS THAT CANNOT BE REVERSED
There are specific instances when a Chargeback cannot be reversed. In these cases, you are responsible to
us for the Transaction amount regardless of the Authorization Code you received. These situations include:
When the Card is present but it is not swiped or manually Imprinted;
When the Card is present but you did not have the Cardholder sign the Transaction Receipt; and/or
When the signature on the Transaction Receipt does not match the signature of the Cardholder on the
back of the Card.
EXCESSIVE ACTIVITY
Company’s presentation to Servicer of Excessive Activity will be a breach of the Agreement and cause for
termination of the Agreement if the Excessive Activity thresholds outlined in this section are met for
Company’s accounts as a whole. Alternatively, in Servicer’s sole reasonable discretion, if Excessive
Activity occurs for any one or more POS Device identification number(s) or MID(s), only the account(s)
that meet the Excessive Activity threshold may be terminated. “Excessive Activity” means, during any
monthly period, Chargebacks and/or Retrieval Requests in excess of one percent (1%) of the gross dollar
amount of Company’s Transactions or returns in excess of two and one-half percent (2.5%) of the gross
dollar amount of Transactions. Company authorizes, upon the occurrence of Excessive Activity, Servicer to
take additional actions as either of them may deem necessary including, without limitation, suspension of
processing privileges or creation or maintenance of a Reserve Account in accordance with the Agreement.
175
Operating Guide OG201702
44
Chapter
7
International Transactions
DYNAMIC CURRENCY CONVERSION TRANSACTIONS
Dynamic Currency Conversion (DCC) is a service that allows a Company to offer international Cardholders the
option to pay in their home currency rather than U.S. Dollars at the point-of-sale. The following describes how
to process Dynamic Currency Conversion Transactions for the designated Cards. These guidelines can help
you:
Understand your responsibilities for DCC Transactions
Handle mail order and telephone order DCC Transactions
Process Electronic Commerce DCC Transactions
Accept Priority Check-Out and Express Return Transactions (in limited Travel and Entertainment (T&E)
situations) as DCC Transactions
YOUR RESPONSIBILITIES AND RESTRICTIONS
You must register with the Payment Networks through us prior to offering DCC service to
Cardholders. You have sole responsibility to comply with Laws and Payment Network Regulations
governing DCC Transactions, including all of the following:
You must inform the Cardholder that the DCC Transaction is optional and that the Cardholder must
actively choose to have the Transaction processed in his or her home currency. The Cardholder must
expressly agree to the DCC Transaction and check the “accept” box on the Transaction Receipt.
If the Cardholder does not actively choose to have the Transaction processed in his or her home
currency, you must not complete the DCC Transaction, but may complete the Transaction in your local
currency. Depending on your POS Device, you may be required to reverse or void the DCC
Transaction when the Cardholder does not actively choose to have the Transaction processed in his or
her home currency. Please refer to your Quick Guide Reference or Point-of-Sale Operating Guide for
complete instructions. If a void or reversal is necessary, you can complete the Transaction in
Company’s local currency.
You are prohibited from converting a Transaction in your local currency into an amount in a
Cardholder’s home currency after the Transaction has been completed with the Cardholder but not yet
entered into Interchange.
Failure to follow the Payment Network Regulations may result in a Chargeback of the Transaction. If
the Transaction is processed in a currency different from the currency listed on the Transaction
Receipt, a Chargeback may be issued for the full amount of the Transaction. There is no right of re-
presentment or rebuttal of the Chargeback.
176
Operating Guide OG201702
45
If a Cardholder states in writing that he or she was not offered a choice during the DCC Transaction
process or did not know that a DCC Transaction would occur, a Chargeback may be issued for the full
amount of the Transaction. Re-presentments may be requested using your local currency but may not
include DCC Transaction commissions, fees, or mark-ups.
Credit Card Associations have the right to terminate their provision of the DCC services to Company.
Failure to comply with the DCC requirements may result in fines, penalties, and/or termination of the
DCC services.
The Agreement may be terminated for your failure to comply with the DCC requirements.
DCC WRITTEN DISCLOSURE REQUIREMENTS
You must comply with the following DCC Cardholder written disclosure requirements in all acceptance
environments, with the exception of telephone order (TO) Transactions.
Currency symbol of the Company’s local currency.
Transaction amount of the goods or services purchased in the Company’s local currency.
Exchange rate used to determine the Transaction amount in the Cardholder’s home currency.
Any currency conversion commission, fees, or mark-up on the exchange rate over a wholesale rate or
government mandated rate.
Currency symbol of the proposed Transaction currency.
Total Transaction amount charged by the Company in the proposed Transaction currency.
For TO Transactions, you must verbally notify the Cardholder of all the disclosure requirements listed
above before initiating a DCC Transaction.
DCC TRANSACTION RECEIPT REQUIREMENTS
In addition to the appropriate electronic or manual Transaction Receipt requirements, DCC Transaction
Receipts must also include:
The price of the goods or services in the Company’s local currency, accompanied by the Company’s
local currency symbol next to the amount.
The total price in the Transaction currency, the Transaction currency symbol, and the words
“Transaction Currency.”
The exchange rate used to convert the total price from the Company’s local currency to the Transaction
currency.
The currency conversion commission, fees, or mark-up on the exchange rate over a wholesale rate or
government mandated rate.
A statement in an area easily seen by the Cardholder stating that the Cardholder was offered the option
to pay in the Company’s local currency.
Cardholder expressly agrees to the Transaction Receipt information by marking an “accept” box on the
Transaction Receipt.
An indication that DCC is conducted by the Company.
177
Operating Guide OG201702
46
MAIL ORDER (MO) TRANSACTIONS
Prior to initiating an MO DCC Transaction, you must ensure that the following information is included on
the MO form:
Specific Transaction currency agreed to by the Cardholder and Company.
A statement that the exchange rate that will be used to convert the Transaction amount from the
Company’s local currency to the Cardholder’s home currency will be determined at a later time
without additional consultation with the Cardholder.
Currency conversion commission, fees, or mark-up on the exchange rate over a wholesale rate or
government mandated rate.
That the Cardholder has a choice of payment currencies, including the Company’s local currency.
An “accept” box that Cardholder may mark to indicate acceptance of the DCC Transaction.
ELECTRONIC COMMERCE TRANSACTIONS
Prior to initiating an Electronic-Commerce (EC) DCC Transaction, you must inform the Cardholder of all
of the DCC Written Disclosure Requirements listed above. You must provide this information with an
“accept” or other affirmative button that requires Cardholder agreement to proceed.
PRIORITY CHECK-OUT AND EXPRESS RETURN TRANSACTIONS (LIMITED T&E
SITUATIONS)
Prior to initiating a T&E DCC Transaction, you must inform the Cardholder of all of the following
information:
The specific currency in which the DCC Transaction will take place.
That the Cardholder has a choice of payment currencies, including the Company’s local currency.
The Cardholder understands that a DCC Transaction will take place.
That the exchange rate is determined at a later time without further Cardholder consultation.
Currency conversion commissions, fees, or mark-up on the exchange rate over a wholesale rate or
government mandated rate.
This information must be documented in a written agreement that is signed by the Cardholder before
checkout or rental return that authorizes Company to deposit a Transaction Receipt without the
Cardholder’s signature for the total amount of their obligation. Further, the Cardholder must expressly
agree to DCC by marking the “accept” box on the written agreement.
The Company must send the Cardholder a copy of the Transaction Receipt through the postal service (or by
email if selected by the Cardholder) within three (3) business days of completing the Transaction.
178
Operating Guide OG201702
47
MULTI-CURRENCY PRICING
Multi-Currency Pricing (MCP) is a service that allows a Company to display the price of goods or services in a
currency other than, or in addition to, your local currency. You have sole responsibility to comply with Laws
and Payment Network Regulations governing MCP, including all of the following:
The displayed price and currency selected by the Cardholder must be the same price and currency charged
to the Cardholder, printed on the Transaction Receipt and entered into Interchange by Servicer.
At least one of the currencies of the prices displayed cannot be Company’s local currency.
The Cardholder makes a purchase decision based on the price and currency displayed by Company.
The Transaction must be completed with the price and currency selected by the Cardholder, with no
currency conversion performed by Company.
In addition to the appropriate electronic or manual Transaction Receipt requirements, it is important that the
Transaction Receipt clearly shows the Transaction currency and the corresponding currency symbol or code.
The currency code is the three digit ISO alpha country code. For Transaction Receipts without a currency
symbol or code, the receipt will be assumed to be in Company’s local currency, which may give rise to rights of
Chargeback.
179
Operating Guide OG201702
48
Chapter
8
Vehicle Rental or Leasing
Authorization Procedures
In addition to the Authorization procedures set out in this document, Companies that provide vehicle rental will
follow the procedures set out in this Chapter.
PREPARATION OF TRANSACTION RECEIPTS
EXECUTION
You must prepare Transaction Receipts for all Transactions as described in Chapter 2, Transaction
Receipts. The Cardholder must sign the Transaction Receipt. However, the Cardholder must not be
required to sign until the total Transaction amount is known and indicated on the Transaction Receipt.
MULTIPLE CARD TRANSACTION SALES
The Company will include all items of goods and services purchased or leased in a single Transaction
in the total amount of a single Transaction Receipt except:
When the balance of the amount due is paid by the Cardholder at the time of sale in cash or by
check or both
When the Company is providing vehicle rental or leasing and the Transaction involves an
additional ancillary charge or a calculation error for which a separate Transaction Receipt is
completed and deposited
If Company is engaged in vehicle rental or leasing, Company may obtain Authorization for such
Transactions based upon estimates of the Transactions according to the following procedures:
1. The Company estimates the amount of the Transaction based on the Cardholder’s intended rental
period at the time of rental, the rental rate, tax and mileage rates and ancillary charges. The
estimate may not include an extra amount for possible car damage, or for the insurance deductible
amount if the Cardholder has waived insurance coverage at the time of rental.
180
Operating Guide OG201702
49
2. If the Company later estimates that the Transaction amount will exceed the initial estimated
Transaction amount, the Company may obtain additional authorizations for additional amounts
(not cumulative of previous amounts) at any time before the rental return date. The Company must
disclose to the Cardholder the authorized amount for the estimated car rental or leasing
Transaction on the rental date. A final or additional authorization is not necessary if the actual
Transaction amount does not exceed 115% of the sum of the authorized amounts.
3. If the Company alters a Transaction Receipt or prepares an additional Transaction Receipt to add
delayed or add-on charges previously specifically consented to by the Cardholder, the Company
must deliver an explanation of the change to the Cardholder (i.e., mail a copy of the amended or
additional Transaction Receipt to the Cardholder), and the Company must fully comply with the
requirements in Chapter 8, Vehicle Rental Or Leasing Ancillary Charges.
4. Regardless of the terms and conditions of any written pre-Authorization form, the Transaction
Receipt amount for a vehicle rental or lease Transaction cannot include any consequential charges.
The Company may pursue consequential charges set forth in its terms and conditions by means
other than Card Transaction.
VEHICLE RENTAL OR LEASING ANCILLARY CHARGES
If the Company discovers additional ancillary charges or an error in calculation after the rental car is
returned, the Company may bill the Cardholder provided that the signed rental contract allows for
additional charges and final audit.
The Company may not recover charges related to car damage, theft or loss. Valid charges may include:
Taxes
Mileage charges
Fuel
Insurance
Rental fees
Parking tickets and other traffic violations
For parking tickets and traffic violations:
The incident must have occurred while the Cardholder was in possession of the vehicle,
The Company must support the charge with documentation from the appropriate civil authority,
including the license number of the rental vehicle, date, time and location of the violation, statute
violated, and amount of the penalty.
These charges must be processed on a delayed or amended Transaction Receipt within 90 calendar days of
the rental return or base end date. A copy of this Transaction Receipt must be mailed to the Cardholder’s
address as indicated in the rental contract or folio. This Transaction Receipt does not require the
Cardholder’s signature if the Company:
Has the signature on file, and
Includes “Signature on File” on the signature line.
181
Operating Guide OG201702
50
Chapter
9
Lodging Accommodations
Authorization Procedures
In addition to the Authorization procedures set out in this document, Companies that provide lodging
accommodations in the hotel and hospitality industry will follow the procedures set out in this Chapter.
PREPARATION OF TRANSACTION RECEIPTS
EXECUTION
You must prepare Transaction Receipts for all transactions as described in Chapter 2, Transaction
Receipts. The Cardholder must sign the Transaction Receipt. However, the Cardholder must not be
required to sign until the total Transaction amount is known and indicated on the Transaction Receipt.
MULTIPLE CARD TRANSACTION SALES
The Company must include all goods and services purchased or leased in a single Transaction in the
total amount of a single Card Transaction except:
When the balance of the amount due is paid by the Cardholder at the time of sale in cash, check or
both,
When the Company is providing lodging accommodations and the Transaction involves (1)
Advance Deposit Services or (2) an additional ancillary charge for which a separate Transaction
Receipt is completed and deposited.
The Company may obtain authorizations for Card Transactions involving the provision of lodging
accommodations based upon estimates of the transactions according to the following procedures:
1. The Company must estimate the amount of the Transaction based on the Cardholder’s intended
length of stay at check-in time, the room rate, applicable tax and/or service charge and any
Company-specific methods for estimating additional ancillary charges. Company must request
Authorization for the estimated amount of the Transaction.
Companies approved for participation in the Visa/MasterCard Prestigious Hotel Authorization
Service are exempt from this requirement if estimates to do not exceed the service’s established
floor limits. In this event, the Company must obtain a Status Check Authorization of $1.00 (one
dollar).
182
Operating Guide OG201702
51
2. If the Company later estimates that the Transaction amount will exceed the floor limit (in cases
where no Authorization was required) or will exceed the amount previously authorized (in all
other cases), based on the Cardholder’s actual charges, the Company must request Authorization
for the increase in the estimated Transaction amount. If necessary, the Company may obtain and
record additional Authorizations for additional amounts (not cumulative of previous amounts) at
any time before the check-out date.
A final or additional Authorization is not necessary if the actual Transaction amount does not
exceed:
The applicable floor limit or
115% of the sum of the authorized amounts.
3. The Company must record on the Transaction Receipt the Authorization amount(s),
Authorization date(s), and Authorization code(s) for all authorizations obtained. If Authorization
is declined, the Company must follow its normal procedures for a declined Authorization.
4. If the Company alters a Transaction Receipt or prepares an additional Transaction Receipt to add
delayed or add-on charges previously specifically consented to by the Cardholder, the Company
must deliver an explanation of the change to the Cardholder (i.e., mail a copy of the amended or
additional Transaction Receipt to the Cardholder), and the Company must fully comply with the
requirements in Chapter 9, Lodging Accommodations Ancillary Charges.
5. The Company understands that its right to use special Authorization procedures under this section
may be terminated at any time if Servicer, Discover Network, Visa, or MasterCard determines in
its sole discretion that Company has been abusing its privileges under or not complying with
prescribed procedures.
LODGING ACCOMMODATIONS ANCILLARY CHARGES
If the Company discovers additional ancillary charges after the Cardholder has checked out, the Company
may bill the Cardholder provided that the Cardholder agreed to be liable for such charges.
Valid charges may include room, food, beverage and tax charges. The Company may not recover charges
related to theft, damage, or loss except as set out below for MasterCard Transactions.
All delayed or amended charges must be processed on a separate or amended Transaction Receipt within
90 calendar days of the check-out date. A copy of this Transaction Receipt must be mailed to the
Cardholder’s address as indicated on the itemized hotel bill. This Transaction Receipt does not require the
Cardholder’s signature if the Company:
Has the signature on file,
Includes “Signature on File” on the signature line.
MASTERCARD TRANSACTIONS FOR ANCILLARY CHARGES
For MasterCard Transactions, charges for loss, theft, or damages must be processed as a separate
transaction from the underlying rental, lodging, or similar transaction. The Cardholder must authorize
the charge after being informed of the loss, theft, or damage. To obtain the Cardholder Authorization
for damages, the Company must prepare a Transaction Receipt with proof of Card presence, provide
the estimated amount for repairs (indicating that the amount will be adjusted accordingly pursuant to
completion of the repairs and submission of the invoice for said repairs), and obtain the Cardholder’s
signature. The final transaction amount may not exceed the Company’s estimated amount by more
than one hundred fifteen percent (115%) (or less, as directed by local ordinances). The Company must
submit a credit if the final cost of repairs is less than the estimated amount on the Transaction Receipt.
The Company has thirty (30) days from the date of the subsequent transaction related to damages to
submit the item into clearing.
183
Operating Guide OG201702
52
LODGING RESERVATION SERVICE
In order to be eligible to accept Discover Network, Visa and/or MasterCard Cards to guarantee reservations
for lodging accommodations, the Company will satisfy the following requirements and procedures:
1. Reservation Procedures
a. The Company will accept all Discover Network, MasterCard or Visa Cards without discrimination
for all Cardholders requesting reservations under the applicable Card Rules.
b. The Company must obtain the Cardholder’s name, account number, and expiration date embossed
or printed on the Card, and will also inform the Cardholder that a Card Authorization check is
made at the time of the Cardholder’s arrival.
c. The Company will inform the Cardholder that the accommodations are held until check-out time
on the day following the scheduled arrival date unless canceled by 6:00 p.m. establishment time
(defined as the time zone in which the physical premises of the Company are located) on the
scheduled arrival date. The Company must not require more than 72 hours cancellation
notification prior to the scheduled arrival date or as otherwise permitted under the applicable Card
Rules.
d. The Company will advise the Cardholder that if he or she has not checked in (registered) by
check-out time the following day after his or her scheduled arrival date and the reservation was not
properly canceled, the Cardholder is billed for one night’s lodging plus applicable tax.
e. The Company will quote the rate of the reserved accommodations, the exact physical address of
the reserved accommodations, including name, address, city, state and country and provide the
Cardholder a reservation confirmation code, advising that it be retained.
f. The Company will verbally confirm and, if requested, provide a written confirmation to the
Cardholder of the reservation including the Cardholder name provided by the Cardholder, account
number and Card expiration date embossed or printed on the Card, the reservation confirmation
code, name and exact physical address of the reserved accommodations, the provisions of the
applicable Card Rules relating to the Cardholder’s obligation, including cancellation procedures
and any other details related to the accommodations reserved, and the rate of the accommodations.
2. Cancellation Procedures
a. The Company will accept all cancellation requests from Cardholders, provided the cancellation
request is made prior to the specified cancellation time.
b. The Company will provide the Cardholder with a cancellation code and advise the Cardholder that
it must be retained to preserve his or her rights in case of dispute. If requested, the Company will
provide (by mail) the Cardholder written confirmation of the cancellation including the Cardholder
account number, expiration date and name embossed on the Card, the cancellation code, and the
details related to the accommodations canceled, including the name of the Company’s employee
that processed the cancellation.
3. Scheduled Arrival Date Procedures (Unclaimed Accommodations)
a. If accommodations reserved under the applicable Card Rules, have not been claimed or canceled
prior to the specified cancellation time (a “No Show”), the Company must hold the room(s)
available according to the reservation until check-out time the following day.
b. If the Cardholder does not cancel the reservation or does not check-in within the prescribed time,
the Company will deposit a Transaction Receipt for one (1) night’s lodging plus applicable tax
indicating the amount of one (1) night’s lodging plus applicable tax, the Cardholder account
184
Operating Guide OG201702
53
number, expiration date and name embossed or printed on the Card, and the words “No Show” on
the Cardholder signature line.
c. The Company will obtain an Authorization Code for the No Show Transaction.
4. Alternate Accommodations
If accommodations which were guaranteed pursuant to the Card Rules, are unavailable, the Company
will provide the Cardholder with the following services at no charge:
a. The Company will provide the Cardholder with comparable accommodations for one (1) night at
another establishment.
b. The Company will provide transportation for the Cardholder to the location of the alternative
establishment.
c. If requested, the Company will provide the Cardholder with a three (3) minute telephone call.
d. If requested, the Company will forward all messages and calls for the Cardholder to the location of
the alternative establishment.
ADVANCE LODGING DEPOSIT SERVICE
In order to participate in the Advance Lodging Deposit service under which a Cardholder uses his or her
Card for payment of an advance deposit required by the Company to reserve lodging accommodations
(“Advance Lodging Deposit”), the Company will adhere to the following procedures and requirements set
forth below:
1. Reservation Procedures
a. The Company will accept all Cards for an advance deposit when the Advance Lodging Deposit
service is agreed to by the Cardholder.
b. The Company must hold a valid Advance Lodging Deposit service contract with us, either as part
of the Agreement or as a separate contract.
c. The Company will determine the amount of an Advance Lodging Deposit Transaction by the
intended length of stay, which amount must not exceed the cost of seven (7) nights of lodging. The
amount of the Advance Lodging Deposit Transaction must be applied to the total obligation.
d. The Company will inform the Cardholder in writing (i) of the Company’s advance deposit
requirements, (ii) of the reserved accommodation and the Transaction amount, (iii) of the exact
Company name and location, (iv) of the Company’s cancellation policy requirements, and (v) that
the accommodations are held for the number of nights used to determine the amount of the
Advance Lodging Deposit Transaction.
e. The Company will obtain the Card account number, Card expiration date, the name embossed or
printed on the Card, telephone number, mailing address, scheduled date of arrival, and intended
length of stay.
f. The Company will inform the Cardholder (i) that the Company will hold the accommodations
according to the reservation, and (ii) that if changes in reservation are requested, written
confirmation of such changes is provided at the Cardholder’s request.
g. The Company will advise the Cardholder that if (i) he or she has not checked in by check-out
time the day following the last night of lodging used to determine the amount of the Advance
Lodging Deposit Transaction, or (ii) the reservation was not canceled by the time and date
specified by the Company, the Cardholder will forfeit the entire amount of the Advance Lodging
Deposit Transaction or a portion of that amount. The Company will not, under any
circumstances, present any additional No Show Transaction in connection with a Transaction
made under the Advance Lodging Deposit service.
185
Operating Guide OG201702
54
h. The Company will quote the rate of the reserved accommodation, the amount of the Advance
Lodging Deposit Transaction and the exact location of the reserved accommodations. The
Company will provide the Cardholder with a confirmation code (advising that it must be retained)
and with the actual date and time the cancellation privileges expire.
i. The Company will complete a Transaction Receipt for the amount of the advance deposit,
indicating the Cardholder account number, Card expiration date, the name embossed on the Card,
telephone number, mailing address, and the words “Advance Deposit” on the signature line. The
Cardholder’s confirmation code, scheduled arrival date, and the last day and time the cancellation
privileges expire without forfeiture of the deposit if the accommodations are not used must also
be indicated on the Transaction Receipt.
j. The Company will follow normal Authorization procedures for lodging Transactions. If the
Authorization request results in a decline, the Company will so advise the Cardholder and will
not deposit the Transaction Receipt.
k. The Company will mail the Cardholder’s copy of the Transaction Receipt and the Company’s
written cancellation policy to the address indicated by the Cardholder within three (3) business
days from the date of the Transaction Receipt.
l. The Company will deposit the Transaction Receipt in accordance with usual procedures as
specified in this guide and the requirements for normal deposit for lodging Companies as
specified in the Card Rules.
2. Cancellation Procedures
The Company will adhere to the following procedures when the Cardholder cancels the reservation on
a timely basis:
a. The Company will accept all cancellation requests from Cardholders, provided the cancellation
request is made prior to the specified cancellation date and time.
b. The Company will provide a cancellation code and advise the Cardholder that it must be retained
to preserve his or her rights in the case of dispute.
c. The Company will complete a Credit Transaction Receipt including the entire amount of the
Advance Lodging Deposit Transaction, the Cardholder account number, Card expiration date, the
name embossed or printed on the Card, mailing address, the cancellation code, and the words
“Advance Deposit Cancellation” on the signature line.
d. The Company will (1) deposit the Credit Transaction Receipt within three (3) calendar days of
the Transaction Date, and (2) mail the Cardholder’s copy of the credit voucher to the address
indicated by the Cardholder within three (3) business days from the date of the issuance of the
Transaction Receipt.
3. Alternate Accommodations
a. If accommodations which were reserved under the Advance Lodging Deposit Service are
unavailable, the Company will complete and deliver to the Cardholder a Credit Transaction
Receipt to refund the entire amount of the Advance Lodging Deposit Transaction.
b. The Company will provide the following services at no charge to the Cardholder:
i At least comparable accommodations at an alternative establishment (a) for the number of
nights used to determine the amount of the Advance Lodging Deposit Transaction, not to
exceed seven (7) nights, or (b) until the reserved accommodations are made available at the
original establishment, whichever occurs first.
ii Transportation to the location of the alternative establishment and return transportation to the
original establishment. If requested, transportation to and from the alternate establishment
must be provided on a daily basis.
iii If requested, provide the Cardholder two three (3) minute telephone calls.
186
Operating Guide OG201702
55
iv If requested, forward all messages and calls for the Cardholder to the location of the alternate
establishment.
4. Central Reservation Services
In the event that Company is a “Central Reservation Service” (defined as an entity holding operating
agreements with various geographically contiguous lodging establishments to act as a reservations
resource for such establishments), Company further agrees and warrants as follows:
a. Company will have a written contract with each such lodging establishment, which will be duly
executed by an officer or manager of the lodging establishment, setting out the respective rights
and duties of Company and such lodging establishment; and
b. Company will be registered with the Credit Card Associations as a Central Reservation Service;
will not use an agent to perform such services; will follow the procedures for reservations,
cancellations, alternate accommodations and Chargebacks herein set out; and will accept full
responsibility for resolving any Cardholder problems related to the Advance Lodging Deposit
Service.
PRIORITY/EXPRESS CHECK-OUT SERVICES
In order to participate in a service under which a Cardholder authorizes the use of his or her Card for
payment of his or her total obligation to the Company, with or without prior knowledge of the total
amount (“Priority/Express Check-out”), the Company will follow the following procedures and
requirements (also see Chapter 7, Priority Check-Out and Express Return Transactions (Limited T&E
Situations)):
CHECK OUT PROCEDURES
1. Company will accept all Discover Network, Visa and MasterCard Cards when a Cardholder
requests Priority Check-out service.
2. Company must hold a valid Priority/Express Check-out service contract with Servicer.
3. Company must provide the Cardholder with a Priority/Express Check-out agreement which must
contain, at a minimum, the following information:
a. Cardholder account number
b. Cardholder’s name and address
c. Expiration date of the Card
d. Company’s name, address and telephone number
e. Check-in date and departure date of the Cardholder
f. Roommate and room number of the Cardholder
g. A statement authorizing the Company to charge the designated Cardholder Account number
for the amount of the bill and to present the Transaction Receipt without the Cardholder’s
signature
h. Space for Cardholder’s signature
i. Transaction date
j. Identification of the Transaction currency
k. Transaction amount indicated in the Transaction currency
l. A legend identifying the Cardholder’s request for specific billing receipts, including the name
and address to whom the receipts are to be mailed
4. The Company will inform the Cardholder that the Priority/Express Check-out agreement must be
completed, signed and returned, and that the Cardholder’s mailing address must be included to
receive a copy of the hotel bill supporting the final Transaction amount.
187
Operating Guide OG201702
56
5. The Company will obtain the completed Priority/Express Check-out agreement and ensure that
the Cardholder account number identified in such agreement is identical to the account number
imprinted on the Transaction Receipt.
6. The Company will follow the Authorization procedures for lodging transactions as set forth in
this guide.
7. When the Cardholder has checked out, Company will complete the Transaction Receipt,
indicating the total amount of the Cardholder’s obligation and the words “Signature on File -
Priority/Express Check-out” on the signature line.
8. Upon the Cardholder’s departure, the Company will mail the Cardholder’s copy of the
Transaction Receipt, the itemized hotel bill, and, if requested, the signed Priority/Express Check-
out agreement to the address provided by the Cardholder on the Priority/Express Check-out
Agreement within three (3) business days of the Cardholder’s departure.
9. Company must retain the itemized bill and signed Priority/Express Check-out agreement for a
minimum of six (6) months after the Transaction Date.
188
Operating Guide OG201702
57
Chapter
10
Convenience Fee and Government/
Public Institution Service Fee
Requirements
This Chapter describes the requirements applicable to the assessment of Convenience Fees by registered
Companies and Government/Public Institution Service Fees (“GPISF”) available to government and public
institution Companies operating in certain designated Merchant Category Codes (MCCs) in compliance with the
Payment Network Regulations. In addition to the requirements in the Agreement and other applicable
procedures included elsewhere in the Operating Guide, Companies that elect to assess Convenience Fees or
Government/Public Institution Service Fees will adhere to the requirements in this Chapter.
TERMS APPLICABLE TO BOTH CONVENIENCE FEES AND
GOVERNMENT/PUBLIC INSTITUTION SERVICE FEES
1. Compliance with Laws and Payment Network Regulations. Company must remain in compliance
with Payment Network Regulations and Laws. If an applicable government authority has passed
legislation or regulation that requires assessment of a Convenience Fee/GPISF or other fees or charges
as a component of Payment Device acceptance, such Laws will control if they conflict with Payment
Network Regulations. If assessment of any Convenience Fee/GPISF or other fees or charges as a
component of Payment Device acceptance is not required by Law, Company bears all responsibility
associated with the assessment of such fees. As between Company and Servicer, Company remains
responsible for all fines, penalties, assessments or charges assessed by the Payment Networks as a
result of non-compliance with Laws or the Payment Network Regulations. Convenience Fees/GPISF
may be prohibited by Laws in some States, and Company may not charge Convenience Fees/GPISF
where prohibited by Laws.
2. POS Devices. Company will ensure that its software, POS Devices and Payment Device acceptance
procedures fully comply with Servicer’s instructions and Payment Network Regulations, including
with respect to programming of software and POS Devices handling of eligible Transactions, for the
proper assessment of Convenience Fees/GPISF and modification of the amount of Convenience
Fees/GPISF charged upon request from Servicer. Company is further responsible for complying with
all requirements as provided by Servicer from time to time to appropriately process the eligible
Transactions to qualify for optimal Interchange rates within five (5) days of Servicer’s communication
to Company of the same. If Company fails to make changes to its POS Devices or Payment Device
acceptance procedures, or fails to adjust the amount of the Convenience Fee/GPISF charged per
Transaction, within five (5) days of Servicer’s request, Servicer may discontinue the program or
suspend a certain payment type, or bill Company for charges in excess of the Convenience Fee/GPISF
to recover losses related to Transactions that did not qualify for optimal interchange rates or did not
include the Convenience Fee/GPISF amount requested by Servicer.
189
Operating Guide OG201702
58
3. Chargebacks. Company remains responsible for all Chargebacks. Servicer will not refund to
Company the amount of the Convenience Fee/GPISF in the event of a Chargeback.
4. Additional Processing Requirements. If Company voids an underlying eligible transaction, the
associated Convenience Fee/GPISF must be voided as well. If Company processes a refund for an
underlying eligible transaction, Company will disclose to Customers that the associated Convenience
Fee/GPISF is non-refundable. Company will be assigned separate MIDs for use in connection with
eligible transactions and related Convenience Fees/GPISFs. Company will use MIDs assigned for use
with eligible transactions or Convenience Fees/GPISFs only to process eligible transactions.
5. Company-Managed Convenience Fee/GPISF. If Company is eligible to charge a Convenience Fee
or GPISF, and has elected to manage such Convenience Fees or GPISF (with or without the use of a
Service Provider), then Company will:
a. Receive and retain the Convenience Fee/GPISF;
b. Pay standard per-transaction fees to Servicer for Convenience Fee/GPISF Transactions;
c. Not assessor adjust a Convenience Fee/GPISF unless Company has disclosed such fees to
Servicer previously in writing and Company has been approved by Servicer to assess such
fees. If Company completes a Transaction and assesses a Convenience Fee/GPISF without
having disclosed such fee previously in writing and obtained Servicer’s consent, Company
will be in breach of the Agreement and Servicer may terminate the Agreement in addition to
any other remedies available under the Agreement, Laws, and Payment Network Regulations.
6. Elavon-Managed Convenience Fee/GPISF. If Company is eligible to charge Convenience Fees or
GPISF and has elected to have Servicer manage the Convenience Fees/GPISF, then Company will:
a. Assess the Convenience Fee/GPISF set by Servicer, and Servicer will retain the Convenience
Fee/GPISF as payment for the processing of the Transactions, and Company will have no
right, title or interest in such amounts, including if the underlying Transaction is subject to
Chargeback.
b. Servicer may adjust the Convenience Fee/GPISF from time to time as necessary to
accommodate changes in Payment Network fees (including interchange), material changes in
average ticket size or monthly Transaction volume, interchange classification or downgrades,
Chargeback rates, Payment Devices accepted or payment channels offered by the Company,
or if at any time the Convenience Fee/GPISF does not cover Servicer’s costs for the
Transactions processed by Company.
c. Servicer may immediately terminate the Convenience Fee/GPISF Services if Company’s
Chargeback rates materially exceed industry averages or if Company’s Convenience
Fee/GPISF program presents a financial risk to Servicer.
CONVENIENCE FEES
CONVENIENCE FEE REQUIREMENTS
Companies who accept both Visa and MasterCard Credit Cards and/or Debit Cards that desire to assess
a Convenience Fee must comply with each of the following requirements:
Company must provide a true “convenience” in the form of an alternative payment channel outside
Company’s customary face-to-face payment channels, and the Convenience Fee must be disclosed
to the Customer as a charge for the alternative payment channel convenience that is provided.
(Companies that do not accept face-to-face payments are not eligible to assess Convenience Fees.)
190
Operating Guide OG201702
59
A Convenience Fee cannot be assessed for recurring payments. The Convenience Fee is designed
for one-time payments and not for payments in which a Customer authorizes recurring charges or
debits for recurring goods or services. Examples of recurring charges include, but are not limited
to, insurance premiums, subscriptions, internet service provider monthly fees, membership fees, or
utility charges.
The Convenience Fee must be disclosed prior to the completion of the Transaction, and the
Customer must be given the option to cancel the Transaction if they do not want to pay the fee.
The Convenience Fee must be (i) included in the total amount of the Transaction (it cannot be
“split” out from the Transaction amount), and (ii) assessed by the same Company actually
providing the goods and services and not by a different merchant or any third party.
If a Convenience Fee is assessed, it must be for all payment types (Visa, MasterCard, Discover,
American Express and ACH) within a particular payment channel (mail order, telephone order,
and internet).
The Convenience Fee must be flat regardless of the value of the payment due (not tiered or
percentage based), except that an ad valorem amount is allowed where the Company’s pricing is
subject to regulatory controls that make a flat fee infeasible.
If Visa is not among the types of Credit Cards and/or Debit Cards accepted by Company, then the
Convenience Fee may be:
Charged in face-to-face Transactions;
Tiered, percentage based, or flat;
Authorized and settled separately from the primary transaction; and
Assessed by Company’s third-party agents.
GOVERNMENT/PUBLIC INSTITUTION SERVICE FEES
1. Applicability of Chapter. If Company has requested authority to charge or to have Servicer charge a
GPISF to its Customers for Eligible Transactions (defined below) the following provisions apply to
such Eligible Transactions and the related GPISF charged.
2. Definition of Government/Public Institution Service Fee. A Government/Public Institution Service
Fee, or “GPISF,” is the fee charged by Servicer or Company, at Company’s election, to Customers
conducting Eligible Transactions where Company is operating in an eligible MCC. GPSIFs include
fees referred to as a “service fee”, where the fee is processed as a separate Transaction from the
underlying purchase or payment Transaction.
3. Requirements for GPISFs. If Company accepts both Visa and MasterCard-branded Credit Cards or
signature Debit Cards for Eligible Transactions, Company will comply with the most restrictive of
these Credit Card Association requirements for all Transactions so as not to discriminate among
different Payment Devices or Payment Networks. Company may assess or have Servicer assess a
GPISF to Transactions involving Discover Network Payment Devices on the same terms as GPISFs
are assessed to the other Payment Devices Company accepts.
a. Eligible Transactions. Eligible Companies (as defined in (b) and (c) below) may charge or have
Servicer charge a GPISF only in connection with the following transactions (“Eligible
Transactions”):
1. Payments to elementary and secondary schools for tuition and related fees, and school-
maintained room and board;
2. Payments to colleges, universities, professional schools, junior colleges, business schools and
191
Operating Guide OG201702
60
trade schools for tuition and related fees, and school-maintained room and board;
3. Payments to federal courts of law that administer and process court fees, alimony and child
support payments;
4. Payments to government entities that administer and process local, state and federal fines;
5. Payments to local, state and federal entities that engage in financial administration and
taxation; or
6. Payments to Companies that provide general support services for the government.
b. Companies Accepting Visa Cards for Eligible Transactions. The following requirements apply
if Company accepts Visa Credit Cards or Visa signature Debit Cards and wants to charge or to
have Servicer charge a GPISF.
i. Eligible Companies. Companies operating in MCCs 8211 (Elementary and Secondary
Schools), 8220 (College Tuition), 8244 (Business and Secretarial Schools), 8249 (Trade
Schools), 9211 (Court Costs), 9222 (Fines), 9311 (Tax) and 9399 (Miscellaneous Government
Services) are eligible to charge or to have Servicer charge a GPISF to Customers in connection
with Eligible Transactions listed in Section (3)(b)(ii) below.
ii. Transaction Requirements. The following requirements apply to Eligible Transactions under
this Section (3)(b):
1. Company must provide Servicer with the necessary documentation to facilitate Servicer’s
registration of Company in the “Government and Higher Education Payment Program” as
applicable within the Payment Network Regulations.
2. The GPISF must be disclosed to the Cardholder prior to the completion of the
Transaction, and the Cardholder must be given the option to cancel the Transaction if the
Cardholder does not wish to pay the GPISF.
3. Company may not also assess a separate Convenience Fee or U.S. Credit Card Surcharge
(as such terms are defined in Visa’s Payment Network Regulations).
4. The GPISF must be disclosed as a fee assessed by Company or Servicer.
5. Companies accepting Visa cards for Eligible Transactions must include the words
“Service Fee” in the “Company name” field of the Visa Transaction clearing record for
the collection of the GPISF.
6. Company must accept Visa as a means of payment in all channels (i.e., face-to-face,
mail/telephone, and Internet environments, as applicable).
c. Companies Accepting MasterCard Cards for Eligible Transactions. The following
requirements apply if Company accepts MasterCard Credit Cards or signature Debit Cards and
wants to charge or to have Servicer charge a GPISF.
i. Eligible Companies. Companies operating in MCCs 8211 (Elementary Schools), 8220
(Colleges/Universities), 8299 (Miscellaneous School and Education Services), 9211 (Courts),
9222 (Fines), 9223 (Bail and Bonds), 9311 (Taxes), 9399 (Miscellaneous Government
Services) and 9402 (Government Postal Services) are eligible to charge or to have Servicer
charge a GPISF to Customers in connection with Eligible Transactions listed in Section
(3)(c)(ii) below.
192
Operating Guide OG201702
61
ii. Transaction Requirements. The following requirements apply to Eligible Transactions under
this Section (3)(c).
1. The GPISF must be disclosed to the Cardholder prior to the completion of the
Transaction, and the Cardholder must be given the option to cancel the Transaction if the
Cardholder does not wish to pay the GPISF.
2. The GPISF structure may be set as a tiered, percentage, or a flat fee. This fee would not
have to be assessed for payments made by ACH, cash, check or PIN-based Debit Card.
3. The GPISF for MasterCard consumer Credit Cards can be different than the GPISF for
MasterCard commercial Credit Cards. Similar product types among the various Payment
Networks should be assessed equal fees as to not disadvantage one Payment Network
over the other.
4. The GPISF must not be advertised or otherwise communicated as an offset to the
Company discount rate.
5. Merchant may use a two transaction processing model or a one transaction processing
model.
4. Service Provider. If Company is permitted by the Payment Network Regulations to use a Service
Provider to manage and assess Company’s GPISF, the “Company name” field of the Transaction
clearing record must include the Service Provider’s name rather than Company’s name. The Service
Provider must be clearly identified to the Cardholder as the entity that is assessing the GPISF.
5. Payment and Transaction Types Supported. GPISF capability for Credit Cards and signature Debit
Cards depends on Company’s MCC and the Payment Network Regulations of the applicable Payment
Network. Not all payment and transaction types are supported for all products. Company’s proprietary
software, POS Devices, or Service Providers must be certified to process Elavon-managed GPISF
Transactions. Closed network prepaid cards, electronic benefits transfer, and dynamic currency
conversion are not supported for GPISF processing.
193
Operating Guide OG201702
62
Chapter
11
Electronic Benefits Transfer (EBT)
Transactions
If Company accepts EBT Transactions, Company agrees to the following provisions:
Company agrees to issue benefits to recipients in accordance with the procedures specified in Servicer’s
applicable EBT Quick Reference Guide (QRG) provided to Company by Servicer, as amended from time to
time and in accordance with all Laws and Payment Network Regulations pertaining to EBT Transactions,
including without limitation, laws pertaining to delivery of services to recipients and recipient confidentiality,
including, without limitation, the Federal Civil Rights Act of 1964, Rehabilitation Act of 1973, Americans with
Disabilities Act of 1990, Clean Air Act, Clean Water Act, Energy Policy and Conservation Act, Immigration
Reform and Control Act of 1986, and regulations issued by the Department of Agriculture pertaining to the
Food Stamp Program. The QRG, as amended from time to time, will be deemed to be incorporated by reference
into the Operating Guide and constitutes a part of the Agreement.
194
Operating Guide OG201702
63
Chapter
12
PIN-less Bill Payment Transactions
This Chapter describes how to process PIN-less Bill Payment Transactions utilizing PIN-authorized Debit
Cards. A PIN-less Bill Payment Transaction is a PIN-less Debit Card payment Transaction resulting in funds
transfer from Cardholders to Companies in connection with payments for recurring services (excluding casual
or occasional purchases) for which a corresponding invoice is periodically presented to the Cardholder by the
Company, and which Transaction is initiated via a telephone (Voice Recognition Unit, Interactive Voice
Recognition) or Internet device.
ACCEPTANCE OF PIN-LESS BILL PAYMENT DEBIT CARDS
Authentication. Prior to entering into a PIN-less Bill Payment Transaction, Company must authenticate
the Cardholder using information that is not commonly known, but is only known by the Cardholder and
Company, such as the Cardholder’s account number with Company or information present on the
Cardholder’s hard copy bill from Company. Company must submit its authentication procedures to
Servicer for approval by the appropriate EFT Networks, and Company warrants that it will follow such
authentication procedures for each PIN-less Bill Payment Transaction. The use of an authentication
procedure, or the approval of such procedure by an EFT Network, is not a guarantee of payment, and
Company remains liable for any Chargebacks resulting from any PIN-less Bill Payment Transactions.
No Minimum or Maximum. Company will not establish minimum or maximum PIN-less Bill Payment
Transaction amounts. Company must accept PIN-less Bill Payment Transactions on terms no less favorable
than the terms under which Company accepts other Payment Devices.
Convenience Fees. Company may not add any amount to the posted price of goods or services Company
offers as a condition of paying with a Debit Card unless permitted by the applicable Debit Card Rules.
Purchases Only. Company will support PIN-less Bill Payment Transactions involving purchases only.
Company may not initiate a Debit Card Transaction or a Credit Card Transaction for returns or refunds, and
must utilize other payment avenues (such as cash, check, or invoice adjustment) to return funds to a
Cardholder.
Prohibited Transactions. Company will initiate Transactions only for services approved by Servicer. In
no event will Company initiate, allow, or facilitate a gambling or gaming transaction, or fund a stored value
account for such purposes.
INTERNET TRANSACTION RECEIPT REQUIREMENTS
At the time of any Internet PIN-less Bill Payment Transaction, Company will make available to each
Cardholder a Transaction Receipt (printable from a screen or via e-mail) that complies fully with all
Laws and containing, at a minimum, the following information:
195
Operating Guide OG201702
64
Amount of the PIN-less Bill Payment Transaction, or if a Convenience Fee applies, the amount
debited from the Cardholder’s account (exclusive of the Convenience Fee, shipping, handling and
other fees), and the amount debited from the Cardholder’s account (inclusive of the fees);
Date and local time of the PIN-less Bill Payment Transaction;
Type of Transaction;
Type of account accessed;
Truncated Debit Card number (showing the final four (4) digits);
Trace or retrieval number;
Company name;
MID;
Company’s web site home page URL;
Promised shipment time period (for Internet Transactions which involve shipment of goods);
Cardholder’s name;
Authorization Code;
Description of the bill payment;
Customer service contact information; and
Fees imposed by the Company on the Cardholder, including shipping and handling fees, taxes, and
Convenience Fees, as applicable.
ADDITIONAL INTERNET REQUIREMENTS
Internet Payment Screen and Sales Policy. Company must prominently display on the Internet
Payment Screen the Company’s name, telephone number, city and state. Company must also obtain
explicit confirmation that the Cardholder understands and agrees that the funds will be immediately
debited from their account upon approval of the Transaction, before submission of the PIN-less Bill
Payment Transaction. Company must display a clearly visible and conspicuous notice on the Internet
Payment Screen of the imposition of any Convenience Fee or the payment of a rebate for a PIN-less
Bill Payment Transaction prior to submitting the payment request from the Cardholder. Such notice
must include: (i) a heading of “Fee Notice” in at least 14-point type; (ii) text in at least 10-point type;
and (iii) the amount of the Convenience Fee or rebate and the name of the party imposing the
Convenience Fee or the Company that receives the Convenience Fee.
Communication and Encryption. Company must participate in an approved authentication program
as designated by the EFT Networks. All authentication information must be encrypted upon entry into
the Internet device and must never leave the Internet device in cleartext form. The Internet device used
by Company must meet or exceed the minimum communication and encryption protocol set forth by
the EFT Networks.
TELEPHONE TRANSACTION REQUIREMENTS
At the time of a telephone PIN-less Bill Payment Transaction, Company will provide each Cardholder
with Transaction information that complies fully with all Laws and containing, at a minimum, the
following information:
Approval or denial of the PIN-less Bill Payment Transaction,
196
Operating Guide OG201702
65
Amount of the PIN-less Bill Payment Transaction, or if a Convenience Fee applies, the amount
debited from the Cardholder’s account (exclusive of the Convenience Fee, shipping, handling and
other fees), and the amount debited from the Cardholder’s account (inclusive of the fees);
Trace number;
Authorization Code or confirmation number;
Customer service contact information; and
Fees imposed by the Company on the Cardholder, including shipping and handling fees, taxes, and
Convenience Fees, as applicable.
Technical Problems. Company will ask a Cardholder to use an alternative means of payment if the
Servicer Debit System or the electronic interface with any EFT Network is inoperative.
Adjustment. A PIN-less Bill Payment Transaction may be adjusted if an error is discovered during
Company’s end-of-day balancing only by means of a written request from Company to Servicer. The
request for adjustment must reference a settled PIN-less Bill Payment Transaction that is partially or
completely erroneous or a denied pre-authorized Transaction for which the pre-authorization request
was approved. An adjustment must be completed within forty-five (45) days after the date of the
original PIN-less Bill Payment Transaction.
Company Warranty. In order to accept PIN-less Bill Payment Transactions, Company warrants that
it is: (i) a municipal, state or other public utility system operated for the manufacture, production, or
sale of electricity, natural or artificial gas, water or waste collection; (ii) an insurance service provider
that is licensed by a state to sell property, casualty, life and health insurance policies and that the
Transaction involves the payment of premiums on such policies; (iii) a public or private provider of
telecommunications services, including telephone, cellular, digital and cable services, which is
licensed and governed by any federal, state or municipal authority; (iv) a public or private provider of
cable or satellite media services, which is regulated by the Federal Communications Commission or
any other federal, state or municipal authority, or (v) any other acceptable Company type, or covered
under a pilot program approved by, the EFT Networks.
Termination/Suspension of Bill Payment. When requested by any EFT Network in its sole
discretion, Company will immediately take action to: (i) eliminate any fraudulent or improper
Transactions; (ii) suspend the processing of PIN-less Bill Payment Transactions; or (iii) entirely
discontinue acceptance of PIN-less Bill Payment Transactions.
197
Operating Guide OG201702
66
Chapter
13
No Signature Required Transactions
This Chapter describes how to process No Signature Required Transactions. The No Signature Required
Program is limited to qualified Companies and offers only limited protection from Chargebacks.
GENERAL REQUIREMENTS
The No Signature Required Program offerings are as follows:
Participation. Company is responsible for validating that its Merchant Category Code (MCC) is eligible
for participation in a No Signature Required Program and that it has been approved by Servicer to
participate in the program.
No Signature Required Program. Certain Credit Card Associations have waived signature requirements
that allow qualifying Companies to process under-floor-limit transactions without having to obtain a
Cardholder signature or provide a Transaction Receipt unless a Cardholder requests a Transaction Receipt.
This No Signature Required Program is available to those Companies in a qualifying MCC segment if the
following Transaction criteria are met:
1. Transaction amount is less than $25.00.
2. Transaction occurs in a qualifying MCC. Please contact Servicer to determine if your MCC is eligible.
3. The Cardholder is present and the Transaction occurs in a face-to-face environment.
4. The full and unaltered content of Track 1 or Track 2 data of the Card’s Magnetic Stripe is read and
transmitted as part of the Authorization, or the Transaction is processed via Contactless processing or
unaltered chip data is sent for Authorization.
5. Specific MCC’s may require at least one (1) Contactless installation within the Company location.
6. One Authorization is transmitted per clearing Transaction.
7. Applies to domestic (U.S.) Transactions only.
8. Currency conversion is not performed.
Eligible Companies that submit Transactions meeting these requirements will receive Chargeback
protection against the signature requirement for Transactions that qualify under the specific Credit Card
Associations’ No Signature Required Program.
Limitations. You understand that participation in a No Signature Required Program provides only limited
protection against specific Chargebacks as designated by the sponsoring Credit Card Association.
POS Device. It is your responsibility to determine if your POS Device is configured to prompt for and
transmit the data elements required for No Signature Required Transactions.
198
Operating Guide OG201702
67
Chapter
14
Wireless Service Transactions
This Chapter describes how to process wireless Transactions. In addition to the requirements set forth in the
Agreement and the procedures set forth elsewhere in the Operating Guide, Companies that process wireless
Transactions will adhere to the requirements set forth in this Chapter.
Use of Wireless Services. Company may use the Wireless Services solely as a means of establishing wireless
(cellular) connectivity between a Wireless POS Device and Servicer’s systems. Company agrees not to use the
Wireless Services for remote medical monitoring or any unlawful, fraudulent, abusive or any other unauthorized
purposes. Company will promptly notify Servicer in writing in the event that Company becomes aware of any
actual or suspected use of the Wireless Services in violation of the Agreement or the Operating Guide, and any
applicable schedules, attachments, exhibits, applications and enrollments. Company agrees that it will locate all
Wireless POS Devices accessing the Wireless Services within the areas served by the wireless network of the
Servicer subcontractor that facilitates the Wireless Services and that all equipment with roaming capabilities
will not be permanently located in a roaming area. Company agrees not to use the Wireless Services in
connection with any server devices, host computer applications or other systems that drive continuous heavy
traffic or data sessions, or as substitutes for private lines or frame relay connections. Further, Company agrees
not to use the Wireless Services in a manner that results in highly concentrated usage in limited areas of the
wireless network through which the Wireless Services are provided. Company acknowledges and agrees that
any violation of the terms and conditions in this Chapter 14 may result in the immediate suspension or
termination of Wireless Services.
Limitations of Wireless Technology. Company acknowledges and agrees that because of the emerging nature
of wireless technology, certain limitations exist that may affect the performance, Coverage Area, and reliability
of wireless technology and wireless processing. Without limiting the generality of the foregoing, wireless
processing and the use of a Wireless POS Device are limited to the Coverage Area and may further be limited
by a variety of other factors, circumstances, and considerations including, but not limited to, the following: (i)
use of a Wireless POS Device outside the Coverage Area will not be possible; (ii) within the Coverage Area,
there may exist certain weak coverage areas or other fringe areas where wireless Transaction processing may be
intermittent or otherwise interrupted; (iii) within the Coverage Area, certain geographic areas may exist in
which wireless Transaction processing may be intermittent or not possible; and (iv) at any time and without
notice, any wireless network may become inoperative due to technical difficulties or for maintenance purposes
thereby affecting the Company’s use of the Wireless Services. In the event Company’s ability to use the
Wireless Services is limited or prevented for any reason, Company agrees that it will not process any
Transaction through the use of Wireless Services, and will in all events obtain an Authorization Code for any
such Transaction through means other than wireless processing, as described in the Agreement.
199
Operating Guide OG201702
68
Hardware Devices and Applications. Company acknowledges and agrees that only hardware devices and
applications approved by Servicer may be used in conjunction with the Wireless Services. Company further
acknowledges and agrees that hardware devices and applications that have not be approved by Servicer may not
function or may function improperly when used in conjunction with the Wireless Services.
Completing Unauthorized Transactions. If you choose to complete a Transaction without an Authorization
Code because wireless coverage is not available (i.e., you store Transaction Data in a Wireless POS Device,
provide the Cardholder goods or services and subsequently request Authorization of the Transaction), you do so
at your own risk. You understand the risk associated with not obtaining an Authorization Code prior to
completing the Transaction (i.e., you subsequently may receive a “decline” or “error” message in response to
the later Authorization request). You are fully liable for all Transactions whether or not an Authorization Code
is received.
Prohibition on Use of Regeneration Equipment. Company must obtain written approval from Servicer prior
to installing, deploying or using any regeneration equipment or similar mechanism (for example, a repeater) to
originate, amplify, enhance, retransmit or regenerate the Wireless Services provided hereunder.
Relationship Between Company and Underlying Wireless Services Provider. Company expressly
understands and agrees that it has no contractual relationship whatsoever with the operator of the wireless
network (or any of its affiliates or contractors) through which the Wireless Services are provided and that
Company is not a third party beneficiary of any agreement between Servicer and any such network operator. In
addition, Company acknowledges and agrees that the operator of the wireless network through which the
Wireless Services are provided and its affiliates and contractors will have no legal, equitable, or other liability
of any kind to Company and Company hereby waives any and all claims or demands thereof. Company further
acknowledges that representatives of the operator of the wireless network through which the Wireless Services
are provided may have met with Company individually or together with Servicer to discuss and review printed
materials that explain such network operator’s understanding of the services provided by Servicer and such
network operator hereunder. Company acknowledges that it has had the opportunity to fully investigate the
capabilities, quality and reliability of the Wireless Services and has satisfied itself that such Wireless Services
satisfactorily meet its business needs. Company agrees that the operator of the wireless network through which
the Wireless Services are provided and its affiliates and contractors will have no legal, equitable, or other
liability of any kind to Company arising from or related to any meeting, discussions or explanations regarding
the Wireless Services and Company hereby waives any and all claims or demands it may have against the
operator of the wireless network through which the Wireless Services are provided and its affiliates and
contractors therefor.
200
Operating Guide OG201702
69
Chapter
15
Store and Forward Application
Transactions
This Chapter describes how to process Store and Forward Transactions using specific product applications.
Specifically, Servicer has developed certain product applications which allow Companies to store Transaction
Data in a POS Device at the time of the sale if a communication channel for transmittal of authorization is not
available, and forward such Transaction Data to Servicer at a later time when a communication channel is
available (“Store and Forward Application”).
GENERAL REQUIREMENTS
The Store and Forward Application Transactions general requirements are as follows:
Participation. Once Company has been approved by Servicer to accept Transactions using the Store
and Forward Application and its POS Device has been programmed with the Store and Forward
Application, Company may utilize the Store and Forward Application only when a communication
channel for transmittal of Authorization information cannot be obtained.
Limitations. Company will not utilize the Store and Forward Application to process any type of PIN-
based Debit Card Transactions, Electronic Gift Card Transactions or ECS Transactions.
Forwarding Transaction Data. Company will forward Transaction Data to Servicer via a POS
Device within twenty-four (24) hours of the Transaction.
Risk. Company understands that there is significant risk associated with utilizing the Store and
Forward Application and not obtaining an Authorization at the time of the sale (i.e., Company may
receive a “decline” or “error” message in response to the subsequent Authorization request). Company
acknowledges and agrees it is fully liable for all Transactions whether or not an Authorization
Approval Code is received.
Changes to Store and Forward Application; Termination. Company acknowledges and agrees that
Servicer, in its sole discretion, may make changes to or terminate the Store and Forward Application at
any time. Company will indemnify and hold Servicer harmless for any action it may take pursuant to
this Chapter.
201
Operating Guide OG201702
70
Warranties and Limitation of Liability.
a. Servicer is not responsible for Store and Forward Transactions.
b. Servicer makes no warranty, express or implied, with respect to the services provided hereunder
including, without limitation, any express or implied warranty regarding the services’ compliance
with any Laws or Payment Network Regulations governing the acceptance of Store and Forward
Transactions.
c. Company understands that Transactions processed via the Store and Forward Application are high
risk and may be subject to, without limitation, a higher incidence of declined Authorization
requests and Chargebacks. Company is liable for all Chargebacks, losses, fees, fines, and penalties
related to Transactions processed via the Store and Forward Application including, but not limited
to, those resulting from or related to declined Authorization requests and fraudulent Transactions.
Further, Servicer is not liable to Company in the event the Transaction Data is not stored within
the POS Device for any reason. Notwithstanding the provisions of the Agreement or this Chapter,
the liability, if any, of Servicer under this Chapter for any claims, costs, damages, losses and
expenses for which they are or may be legally liable, whether arising in negligence or other tort,
contract, or otherwise, will not exceed in the aggregate One Thousand Dollars and No Cents
($1,000.00).
202
Operating Guide OG201702
71
Chapter
16
Electronic Gift Card (EGC) Services
This Chapter describes certain services that are available to Companies that have been approved by Servicer for
Electronic Gift Card Services. In addition to the requirements set forth in the Agreement and the other
applicable procedures set forth in the Operating Guide, Companies that process Electronic Gift Card
Transactions will adhere to the requirements set forth in this Chapter.
ECG PROCESSING SERVICES
1. General Obligations.
a. Company will comply with all Laws applicable to the issuance, sale, distribution, use, or acceptance of
Electronic Gift Cards (including all Laws relating to purchase, service and dormancy fees, Laws
relating to expiration dates, Laws governing the treatment of unused or unclaimed funds or other
property, Laws relating to money transmission, and Laws relating to consumer protection), specifically
including the Prepaid Access Rule (31 CFR Parts 1010 and 1022) and all other rules promulgated and
guidelines published by the Financial Crimes Enforcement Network division of the United States
Department of the Treasury.
b. Until EGC Cardholder Data and Transaction Information have been received and validated by
Servicer, Company will maintain enough “backup” information and data (e.g. Transaction Receipts or
detailed reporting) with respect to Electronic Gift Cards sold to reconstruct any information or data
loss due to a system malfunction or transmission error.
c. Servicer must participate in all Electronic Gift Card Transactions. If a third party must also participate
in such a Transaction, Company will use a Servicer-approved third party.
d. All Electronic Gift Cards must be printed by Servicer or a Servicer-approved third party.
e. Company is responsible for all card production and delivery costs.
2. Direct Settlement. Company authorizes Servicer to initiate credit and debit entries among Company’s
individual chain locations for any transactions that change the balance of an Electronic Gift Card. If
Servicer cannot accomplish a credit or debit entry to reflect the effect of a Transaction, Company
authorizes Servicer to credit or debit (as applicable) the designated Master Account or Primary Company.
Servicer may offset any debits against the related credit Transactions of the applicable chain or Company
location. Company will notify Servicer in writing of any asserted errors within 45 days of the statement
date on which the asserted error first appeared and understands that any failure to do so will preclude
further claims or assertion of the error. Company will pay (or will cause its individual chain locations to
pay) related direct settlement fees.
3. Loss, Theft, and Fraud. Servicer is not responsible for lost, stolen or fraudulent Electronic Gift Cards.
203
Operating Guide OG201702
72
4. Additional Locations. Locations added to this processing relationship will be boarded on Servicer’s
system according to the paperwork submitted by Company to Servicer. If Company submits paperwork
reflecting an error or omission of fees payable by Company, the Services fees and other monthly fees
applied to the locations during the initial set up or subsequent negotiations will be applied to such locations.
5. Closing Locations. If a location closes or changes its Merchant Identification Number (MID), Servicer
may bill the Primary Company for any fees associated with subsequent Transactions processed on
Electronic Gift Cards activated by the closed MID, including system generated transactions, such as
deduction and points conversion transactions. Servicer may also bill to the Primary Company any monthly
fees billed for Loyalty Cards or members activated at the closed location.
6. Post Termination. Following termination of the Electronic Gift Card Services, Company will pay Servicer
a transfer fee based on, among other things, the number of issued Electronic Gift Cards that must be
converted to another processor and the data specifications required by Company or such other processor.
7. Additional Fees. Company agrees to pay Servicer for EGC production once Company has approved the
EGC design proof. Company accepts full responsibility for all EGC production costs. One proof per EGC
order is included in the cost of EGC production, and Company agrees to pay thirty-five dollars ($35) for
additional proofs. If any order is cancelled prior to EGC production, Company agrees to pay to Servicer a
one hundred dollar ($100) cancellation fee.
WEBSUITE SERVICES
“WebSuite Services” means an electronic commerce solution provided by Servicer’s third party service
providers that permits Customers to purchase or add value to Electronic Gift Cards through Company’s
“WebSuite” site. Customers submit payment for the Electronic Gift Card via a Payment Device through the
Processing Services.
If Company has elected to receive WebSuite Services, the following terms will apply:
Company acknowledges that Servicer may engage third party service providers to assist with the
performance of the WebSuite Services.
1. General Obligations.
a. Company will timely provide to Servicer specifications for the customization of Company’s WebSuite
site, including Customer options, web and e-mail content. Company modifications subsequent to the
initial submission are subject to change fees.
b. Servicer is not responsible for any Electronic Gift Card information Company posts to the Company’s
WebSuite site.
c. Servicer is not responsible for incomplete or inaccurate payment information provided by any
Customer in connection with the WebSuite Services. Company acknowledges that additional
Transaction verification and fraud prevention data elements and processes may be available through a
particular Payment Network (including address verification) to reduce Transaction risk, and Company
agrees that Servicer will only be responsible for implementing the Transaction risk controls that are
specifically requested in writing by Company. The use of such Transaction risk controls does not
constitute a guarantee of payment or prevent a Transaction from being disputed or subject to
Chargeback.
d. Company acknowledges that Servicer may provide sample terms of use, privacy policy, and other
content and disclosure for use on Company’s WebSuite site. Company’s use of the WebSuite site
confirms that Company has had an opportunity to review the sample disclosures and agrees to be
solely responsible for all content and disclosures on the WebSuite site.
204
Operating Guide OG201702
73
e. Company is responsible for all Retrieval Requests and Chargebacks under the Payment Network
Regulations in connection with Transactions processed using the WebSuite Services. Upon receipt of a
Retrieval Request or documentation related to a Chargeback from a Payment Network, Servicer will
forward such request or documentation to Company. Company is responsible for responding, as
appropriate, to each Retrieval Request or Chargeback.
2. Electronic Gift Card Order Fulfillment. Servicer will fulfill all WebSuite Electronic Gift Card orders
and include with each order a Company-approved standardized letter customized with the order detail. All
orders will be shipped pursuant to the method directed by the Customer.
3. Electronic Gift Card Loss Protection Program. Company will determine which data elements it will
require its Customers to provide to establish an account or register an Electronic Gift Card on Company’s
WebSuite site. Company is responsible for notifying its Customers that to take advantage of the Electronic
Gift Card loss protection program, the Electronic Gift Card must be registered prior to the loss. Once a
registered Electronic Gift Card is reported lost or stolen via the WebSuite site, Servicer will notify
Company and freeze the unused balance of the Electronic Gift Card. Company is responsible for
transferring the unused balance to a new Electronic Gift Card, sending a replacement Electronic Gift Card
to the Customer, and notifying Servicer of the replacement Electronic Gift Card via the WebSuite site.
4. Reloading of Electronic Gift Cards. Company will determine the Electronic Gift Card reloading options
available to its Customers. While the WebSuite Services permit the anonymous reloading of Electronic Gift
Cards, Servicer recommends that Company require its Customers to register the Electronic Gift Card in
order to reload value onto the Electronic Gift Card.
5. Customer Information. The WebSuite Services will permit Company to have access to Customer
information and other data that Company requires to establish an account or register an Electronic Gift
Card. Company is responsible for maintaining the appropriate safeguards to protect such Customer
information, and to properly disclose the use of such information and its privacy policies on Company’s
WebSuite site or website. Company must maintain the confidentiality of all Transaction Information and
EGC Cardholder Data as provided in the Agreement.
6. E-Certificates. Company may choose to use the E-Certificate module, which delivers a “virtual gift card”
electronically. The terms applicable to Electronic Gift Cards in this Chapter apply equally to E-Certificates.
PROCESSING ELECTRONIC GIFT CARD TRANSACTIONS
In connection with processing Electronic Gift Card Transactions, Company must comply with the
following requirements:
Supply Servicer with all information and data required by Servicer to perform services related to
Company’s acceptance of Electronic Gift Cards, including the location of POS Devices and EGC
Cardholder Data.
Maintain all Transaction Receipts and any other receipts as required by Laws.
When Company sells an Electronic Gift Card from its physical location or locations, including sales
completed via electronic commerce, Company is responsible for the collection and settlement of all
funds relating to the sale of the Electronic Gift Card, including processing costs associated with such
purchase (such as any Credit Card transaction fees or bank service fees, where applicable).
ELECTRONIC GIFT CARD PROCESSING SERVICES
Electronic processing of Transactions and purchases made by Customers using Electronic Gift
Cards. Servicer will confirm electronically that the Cardholder presenting the Electronic Gift Card for
the purchase of goods or services through Company has an active account on Servicer’s Electronic Gift
Card processing system and that there is sufficient value associated with the Electronic Gift Card to
205
Operating Guide OG201702
74
allow the Customer to complete the purchase. Servicer will adjust the Cardholder’s account through
either a debit or credit, as applicable, in the amount of any approved Transaction.
Transaction Record Maintenance. Servicer will maintain an accessible electronic record of the
Transactions conducted using an Electronic Gift Card for the lifetime of the card balance and after the
balance on the card has been depleted for a period not less than sixty (60) days.
DOWNTIME
Company will not process Electronic Gift Card Transactions if the Electronic Gift Card processing
system is down and not able to verify the validity and available balance on an Electronic Gift Card.
Company will be solely liable for any losses or damages incurred if Company processes an Electronic
Gift Card Transaction without receipt of such verification.
ELECTRONIC GIFT CARD ARTWORK
Electronic Artwork. If applicable, Company is responsible for submitting electronic artwork to Servicer
for approval, as described in the Graphic Specifications and Procedures manual provided separately by
Servicer (the “Graphic Specifications and Procedures”). Company will comply with the Graphic
Specifications and Procedures. Company understands that the card proof cannot be created without the
submission of artwork, if requested or required. Failure to submit artwork or comply with the Graphic
Specifications and Procedures may result in additional fees charged to Company for design work
performed to correct the artwork and will result in the delay of the card production process. Servicer and
card manufacturer cannot be held responsible for the quality of cards produced using artwork that does not
meet the Graphic Specifications and Procedures. Digital artwork should be submitted to:
Artwork@elavon.com
OR
Elavon, Inc.
Attn: Boarding - EGC
7300 Chapman Highway
Knoxville, TN 37920
When sending in artwork, please include:
1. Company name and MID
2. Indicate standard or custom card order
3. Name and telephone number of graphic contact should there be any questions or issues with the
artwork submitted
For complete detailed specifications, please send a request for Graphic Specifications and Procedures to
Artwork@elavon.com. In your request please indicate that you want standard card or custom card
specifications.
Proofing and Production Procedure. Proofs for custom card orders are provided electronically and sent
to the email provided. Please print the proof, sign and fax back pursuant to the instructions on the proof.
One proof is included in the card production costs. Each additional proof will be billed at thirty-five dollars
($35) each. All proofs for standard card orders are provided electronically as an Adobe pdf document. The
proof will be sent to the email address then currently on file with Servicer. If the proof is acceptable, simply
reply to the email and indicate approval. Provide detailed information if changes are required. In some
instances you may also receive a printer’s proof and you will be required to follow the instructions included
with the proof. IMPORTANT: Incorrect graphics WILL delay your order. After you approve the
proof, normal production timeframe for card delivery is 2-3 weeks for standard cards and 6-8 weeks
for custom cards.
206
Operating Guide OG201702
75
Chapter
17
Petroleum Services
This Chapter describes certain services that are available to Companies operating in the petroleum industry that
have been approved by Servicer to receive Petroleum Services. In addition to the requirements set forth in the
Agreement and the procedures set forth elsewhere in the Operating Guide, Companies that use the Petroleum
Services will adhere to the requirements set forth in this Chapter.
PROVISIONS APPLICABLE TO ALL PETROLEUM SERVICES
1. Access.
a. Servicer and Servicer’s authorized representatives may access, during normal business hours and
occasionally after normal business hours, the Equipment and Software and Company’s premises,
including offices, facilities, equipment, personnel and other Company resources as required for
Servicer to perform the site survey, Equipment and Software installation, inspection, maintenance,
and other Petroleum Services. Company will arrange permitted access to areas of third-party
facilities as necessary. Servicer will comply with reasonable rules, regulations, and security
restrictions regarding access that Company provides in advance and in writing. Company will
allow Servicer electronic access to the Equipment and Software at all times. Company will make
sure that Servicer’s representatives have access to electrical power at Company’s location as
required for Servicer to efficiently perform the Petroleum Services.
b. Servicer reserves the right not to provide Petroleum Services with respect to any Equipment at a
Company location where Servicer reasonably determines that physical access to such Equipment
or other conditions at the locations are unsafe. Servicer will notify Company of the unsafe
condition so that Company can correct the safety issue.
2. Unpermitted Access. Company will not attempt to obtain Petroleum Services by rearranging,
tampering or making unpermitted connection with Servicer’s (or its vendors’ or subcontractors’)
system. Company will not, and will not assist anyone else to, (i) copy or duplicate the Software, or (ii)
decompile, disassemble, modify, create derivative works of, tamper, reverse engineer or emulate the
Equipment or Software. Company will not sell, rent, lend or allow physical or electronic access to any
Equipment, Software or Petroleum Services without Servicer’s written consent.
3. Cooperation. Company will make sure that its personnel assist Servicer as necessary to install and
integrate the Equipment and Software, to troubleshoot and isolate faults in the Equipment or Software,
and to otherwise perform Petroleum Services. Company will also make sure that its locations are
adequately staffed during installation and maintenance to assist Servicer to commission, troubleshoot,
and isolate faults in any locations. Servicer will not be liable for any delay in performing, or inability
to perform, its duties under this Chapter to the extent caused by any failure by Company to perform the
207
Operating Guide OG201702
76
duties assigned to it or to provide such resources. Company will reimburse Servicer for the reasonable
expenses Servicer incurs as a direct result of Company failing to meet such obligations.
4. Fraud Prevention. Company will take reasonable steps to reduce, detect and manage fraud. Company
will appoint a representative available to Servicer or its vendors or subcontractors to promptly respond
to any fraud-related matters.
5. Title to Software.
a. Company acknowledges that any Software and related updates Servicer supplies in connection
with the Petroleum Services are subject to the proprietary rights of Servicer or its vendors (the
“Licensors”). The Licensors will retain all right, title and interest in the Software, all copies,
partial copies, compilations and translations of the Software, and underlying intellectual property.
b. Company will have no ownership interest or proprietary right in the Software, or any
enhancements or derivative works, regardless of whether Company requests the development of or
pays for such Software, enhancement, or derivative work. If Company pays for such Software,
enhancement or derivative work, Company will have the right to use such Software, enhancement
or derivative work to receive the Petroleum Services.
c. Company acknowledges that the Software constitutes trade secrets of the Licensors and that the
Software is protected by copyright law. Company will use the Software and its related
documentation for its internal use only and will not distribute, sell, assign, transfer, offer, disclose,
reproduce, modify, lease or license the Software. Company will not use the Software to process
the data of third parties or in a service bureau operation. Company will notify Servicer
immediately of the unauthorized possession, use or knowledge of the Software.
d. Company agrees that its breach of this Section 5 will cause the Licensors irreparable harm.
COMPANY’S OBLIGATIONS FOR SMARTLINK SERVICES
1. Internet Access. Prior to using SmartLink Services, Company must supply at its expense a high speed
Internet connection (e.g., business class DSL or cable Internet or the equivalent). Company will make
such high speed Internet connections available for SmartLink Services at all times. Servicer not be
liable for such Internet services, and Company will be responsible for managing and repairing
problems associated with Company’s own telecommunications and processing systems (both hardware
and Software).
2. Integration. Company will cooperate with Servicer to integrate SmartLink Services at Company’s
locations, including by reasonably assisting Servicer with interfacing the SmartLink Services with
Servicer’s vendors and subcontractors. Company is responsible for properly installing the Equipment
and Software and is responsible for providing suitable secure space, power, network connectivity and
other services for the proper operation of the Equipment and Software, in each case at its expense.
3. Included Maintenance. In consideration for Company’s payment of the monthly access and
maintenance fees set forth in the Agreement, Servicer will provide corrective maintenance for
SmartLink Services.
4. Excluded Maintenance. Maintenance does not include the following services, unless specifically
requested by and paid for by Company at Servicer’s then-current rates: maintenance, repair, or
replacement of parts damaged or lost through catastrophe, accident, lightning, theft, misuse, fault or
negligence of Company, or causes external to the Equipment or Software, including failure of, or
faulty, electrical power or air conditioning, operator error, failure or malfunction of data
communication Equipment or Software not provided to Company by Servicer, or from any cause other
than intended and ordinary use; modifications or alterations to the Equipment or Software other than
208
Operating Guide OG201702
77
Servicer-approved upgrades and configuration; modifications or alterations to the Equipment or
Software by anyone other than Servicer; and deinstallation, relocation or removal of the Equipment or
Software or any accessories, attachments, or other devices.
5. Modifications. Company is responsible for any alterations or modifications to the Equipment required
to comply with any applicable Law.
COMPANY’S OBLIGATIONS FOR VOYAGER CARD ACCEPTANCE
Conditions of Voyager Card Acceptance. Company agrees to abide by all terms and conditions that apply
to accepting Voyager Cards and receiving payment, including the following:
1. Company will honor all valid Voyager® Cards for purchases under the terms and conditions of the
Operating Guide and the Agreement.
2. Company is responsible for checking the expiration date and any printed restrictions for both electronic
and manual Transactions. Company will electronically authorize all Transactions. If the POS Device
authorization system malfunctions, Company will obtain an Authorization by calling the designated
Voyager® phone number. If a sale is declined, the Voyager® Card will not be used to complete the sale.
3. At Customer-activated POS Devices, the sales draft will include truncated account number, sub
number, truncated expiration date of the Voyager® Card, the Transaction date and time, type of fuel
sold, the total sale price, Authorization number, as required, and odometer reading.
4. All cashier-assisted electronic sales drafts and credit vouchers will be completed to include POS
Device print showing the Card account name encoded in the Magnetic Stripe (if point-of-sale function
is applicable), truncated account number, sub number, truncated expiration date of the Card, the
signature of the authorized user, the Transaction date and time, type of fuel sold, a description of the
service rendered (if requested), odometer reading (as permitted by the electronic POS Device), total
sale price, and the Authorization number.
5. Company will provide a copy of the sales draft or receipt and credit vouchers to the Voyager® Card
Cardholder at the time of sale or return. Company will retain a copy of the sales draft for a period of
six months from the date of purchase.
6. A Chargeback will be made for sales that are disputed for any reason, including (a) required
Authorization was not obtained, (b) were for unauthorized merchandise, (c) were fraudulently made by
an employee of Company, (d) the procedures for completing and handling sales drafts or receipts or
credit vouchers were not followed, or (e) were in violation of printed instructions. Servicer will
promptly notify Company of any Chargeback.
7. Company will maintain a fair policy for the exchange and return of merchandise. Company will
promptly submit credits for any returns that are to be credited to the Voyager® Card Cardholder’s
account.
8. Fees for processing Voyager® Card will accrue daily and be collected by electronically debiting
Company’s DDA at the same time that processing fees for other Payment Devices are debited. If
Company’s bank rejects or returns Servicer’s debit, Company remains liable for payment of Voyager®
processing fees, Equipment and Software, along with any collection fees as specified in the
Agreement.
COMPANY’S OBLIGATIONS FOR WRIGHT EXPRESS CARD ACCEPTANCE
If Company has been approved to accept commercial fleet Payment Devices associated with Wright
Express, Company agrees to enter into and accept such Payment Devices pursuant to a Wright Express
209
Operating Guide OG201702
78
Charge Card Acceptance Agreement. Company acknowledges that Servicer will only provide authorization
or data capture services, or both, for Wright Express, and Company will rely upon Wright Express for all
other services, including settlement.
COMPANY’S OBLIGATIONS FOR PRIVATE LABEL CARD ACCEPTANCE
If Company notifies Servicer and obtains Servicer’s approval, and enters into and abides by an agreement
with the issuer of a Payment Device designed for commercial fleet Transactions issued by a third party,
exclusive of Voyager® or Wright Express (a “Private Label Card”) for the acceptance of such Private
Label Cards, then Company may accept such Private Label Card Transactions. Company agrees that
Servicer will only provide authorization or data capture services, or both, for such Private Label Cards, and
Company will rely upon the issuer of the Private Label Card for all other services, including settlement.
210
Operating Guide OG201702
79
Chapter
18
Converge Services
This Chapter describes certain services that are available to Companies that have been approved by Servicer for
Converge Services, including Converge Tokenization Services if selected by Company. In addition to the
requirements set forth in the Agreement and the other applicable procedures set forth in the Operating Guide,
Companies that use Converge Services will adhere to the requirements set forth in this Chapter.
USE OF CONVERGE SERVICES
The Converge online terminal and payment system (the “Converge Payment System”) owned and
operated by Servicer is provided to Company under the terms and conditions of the Converge Terms of
Use, which may be updated from time to time and which are incorporated by reference into the Operating
Guide.
BY LOGGING ON TO THE CONVERGE PAYMENT SYSTEM, COMPANY AGREES TO BE BOUND
BY ALL OF THE TERMS AND CONDITIONS OF THE CONVERGE TERMS OF USE. IF COMPANY
DOES NOT ACCEPT THE TERMS OF USE, COMPANY MAY NOT USE THE CONVERGE
PAYMENT SYSTEM.
In addition, Companies who use the Converge Payment System may use the Converge payment system
mobile application (the “Converge Application”) to access the Converge Payment System. Company’s use
of the Converge Application is subject to the Converge Terms of Use and the End User License Agreement
for the Converge Application, which is available on the Converge Application.
In connection with the Converge Services, Company is responsible for:
Compliance with the Developer Guide to the Converge Services, which is available at
http://www.convergepay.com, as the same may be updated by Servicer from time to time.
All content, design and development of any Customer-facing payments website or interface, except to
the extent such content, design and development is exclusively controlled by Servicer as set forth in
the Developer Guide to the Converge Services.
Configuring the Converge interface in accordance with the Developer Guide to the Converge Services.
For more information about Converge Services, please visit http://www.convergepay.com.
ADDITIONAL TERMS APPLICABLE TO CONVERGE SERVICES
1. License Grant. Subject to paragraph 2 below, Servicer grants to Company a nonexclusive,
nontransferable license (without a right of sublicense) to access and use, as applicable, the Converge
Payment System (including APIs and software, the Converge Application, and documentation),
exclusively for Company’s internal business use to receive the Converge Services.
211
Operating Guide OG201702
80
2. Converge Services Restrictions. Company will not, and will ensure that its employees, agents,
contractors, and vendors do not:
a. copy (other than maintaining one backup or archival copy for Company’s internal business use
only), re-sell, republish, download, frame or transmit in any form or by any means the Converge
Payment System, or any part thereof;
b. rent, lease, subcontract, operate or otherwise grant access to, or use for the benefit of, any third
party, the Converge Payment System;
c. decompile, disassemble, reverse engineer or translate the Converge Payment System;
d. change, modify, alter or make derivative works of the Converge Payment System;
e. without Servicer’s prior written consent, grant any third party access to the computers, hardware,
system or equipment on which the Converge Payment System or the Converge Services are
accessible;
f. attempt to interfere with or disrupt the Converge Payment System or attempt to gain access to any
other services, hardware or networks owned, maintained or operated by Servicer or its suppliers;
g. disclose any passwords or other security or authentication device with respect to the Converge
Payment System to any person other than the person to whom it was issued;
h. remove, conceal or alter any identification, copyright or other proprietary rights notices or labels
on the Converge Payment System;
i. directly or indirectly, ship, export or re-export the Converge Payment System;
j. directly or indirectly resell or re-offer the Converge Services; or
k. act as a gateway through which a third party may gain access to the Converge Payment System or
the Converge Services.
3. Implementation. Company will pay for any preparation of its facilities necessary for it to access the
Converge Payment System and use the Converge Services in connection with this Chapter.
4. Ownership. The Converge Payment System, Servicer’s Internet websites, and any related intellectual
property will remain the exclusive property of Servicer or its licensors, as applicable. Company has no
right in or license grant to any source code contained in or related to the Converge Payment System.
As between Servicer and Company, Servicer or its licensors, as applicable, will retain all rights, title
and interest in the Converge Payment System and the intellectual property. Any information obtained
or works created in violation of this Chapter will be both the intellectual property and the Confidential
Information of Servicer or its licensors, as applicable, and will automatically and irrevocably be
deemed to be assigned to and owned by Servicer or its licensors, as applicable.
5. Use by Third Parties. Company may allow one or more third parties to access the Converge Payment
System and use the Converge Services, but only for Company’s benefit and in connection with
Company’s internal business operations and activities, including access to the Converge Payment
System and use of the Converge Services from backup equipment at a secure off-site backup location
and for testing purposes, subject to the restrictions of this Chapter and provided such third parties have
agreed to be bound by the licensing terms and restrictions of this Chapter.
6. Upgrades. Servicer will make available to Company any updates, upgrades or modifications to the
Converge Payment System that Servicer generally makes available to its other customers, and each
212
Operating Guide OG201702
81
such update, upgrade or modification will be deemed to be part of the Converge Services and will be
governed by the terms of this Chapter.
TERMS APPLICABLE TO CONVERGE TOKENIZATION SERVICES
1. Converge tokenization services. The Converge Tokenization Services consist of a tokenization
feature pursuant to which Servicer will provide Company with randomized numerical tokens (each, a
“Token”) in substitution for the account numbers associated with certain types of cards and other
payment devices as further specified in the Converge Developers Guide, as the same may be updated
by Servicer from time to time (each such number, a “Card Account Number”; such services, the
“Converge Tokenization Services”). More specifically, when a Card Account Number associated
with a Transaction is transmitted from Company to Servicer through the Converge Services, Servicer
will:
a. generate a Converge Token;
b. associate the Converge Token with the Card Account Number; and
c. send the Converge Token, instead of the Card Account Number, back to Company in the
Transaction authorization response message.
As long as Company elects to purchase the Converge Tokenization Services, the Converge Token,
rather than the associated Card Account Number, may be submitted by Company to Servicer through
the Converge Services to process additional Transactions to the Credit Card or Signature Debit Card
associated with such Converge Token across all Company locations. The Card Account Number
associated with each Converge Token generated by Servicer can be retrieved by Servicer, on
Company’s written request, until the date that is three years after the expiration or termination of the
Converge Tokenization Services (the “Converge Token Validity Period”), provided that the retrieval
of Card Account Numbers after the expiration or termination of this Chapter will be subject to
additional terms and conditions and at an additional cost to Company. Company acknowledges that
the Converge Tokens will be formatted in Servicer’s reasonable discretion and may not be compatible
with other Company systems, equipment, communications devices, databases and/or services.
2. Company’s responsibilities regarding the Converge Tokenization Services:
a. Company will cause the appropriate hardware, including POS Devices, to be readily available for
use at all Company locations that are the recipients or users of the Converge Tokenization
Services.
b. Company acknowledges that Servicer does not store Credit Card or Debit Card expiration dates. In
order to use a Converge Token to process a Transaction through the Converge Services, Company
must provide the Converge Token (in lieu of a Card Account Number) together with the expiration
date for the original Credit Card or Debit Card.
3. De-tokenization. Company may request a reversal of the Converge Tokenization process as follows:
a. To reverse the Converge Tokenization process on an individual Converge Token basis, Company
may access a Servicer web portal and, with appropriate authentication credentials, retrieve the
Card Account Number associated with any Converge Token.
b. To reverse the Converge Tokenization process on a bulk basis (i.e., in excess of 100 Converge
Tokens at a time), an officer of Company must make a request in writing to Servicer and provide
Servicer with the Converge Tokens for which Company wishes to reverse the Converge
Tokenization process. Servicer will provide Company’s requesting officer with an encrypted file
(in a format determined by Servicer) containing the Card Account Numbers associated with such
213
Operating Guide OG201702
82
Converge Tokens within 30 days of receiving the request in a manner determined by Servicer.
Company acknowledges and agrees that additional terms and conditions may apply to reversal of
Converge Tokenization on a bulk basis.
c. Company is responsible for managing its database of Credit Card and Debit Card expiration dates,
and will not submit requests to Servicer for reversing Converge Tokenization for expired Credit
Cards or Debit Cards. If Company nonetheless submits such requests, Company will bear
Servicer’s costs for production of the Card Account Numbers for such expired Credit Cards and
Debit Cards.
4. Relationship to other Services. The terms specific to the SAFE-T Services are inapplicable to the
Converge Services and the Converge Tokenization Services and the terms of this Chapter are inapplicable
to the SAFE-T Services.
214
Operating Guide OG201702
83
Chapter
19
Services in Canada
This Chapter describes certain requirements with which Companies operating in Canada (“Canadian
Companies”) must comply. Canadian Companies must execute a separate agreement or otherwise be approved
to receive Services from Servicer for Transactions accepted at Company locations in Canada. Canadian
Companies must comply with the requirements set forth in the Agreement and in the Operating Guide, as such
requirements are supplemented and/or modified by the following requirements contained in this Chapter.
For purposes of Transactions in Canada, please note the following:
All references to “U.S. Mail” also include the Canadian Postal Service.
All U.S. dollar amounts contained within the Operating Guide should be deemed to be Canadian
dollars by Canadian Companies.
All references to U.S. law enforcement agencies in the Operating Guide are replaced with references to
the Royal Canadian Mounted Police or the local police of the jurisdiction, as applicable.
CHAPTER 1
The following provisions are hereby added to or amended in Chapter 1 of the Operating Guide, About Your
Card Program:
o In the “Types of Cards” section of Chapter 1 of the Operating Guide, About Your Card Program, the
following provision is hereby added:
“Automated Teller Machine (ATM) Card” includes an Automated Banking Machine (ABM)
Card. An ABM Card is issued by a financial institution and allows a Customer to withdraw
funds, make deposits or perform other banking functions though an ABM.
o In the “General Operating Guidelines” section of Chapter 1 of the Operating Guide, About Your Card
Program, in the “Do Not Set Restrictions on Card Transactions” section, the following is hereby added
after the second sentence: “Further, Company may provide differential discounts among different
Payment Networks. All discounts must be clearly marked at the point-of-sale.”
o In the “General Operating Guidelines” section of Chapter 1 of the Operating Guide, About Your Card
Program, the “Do Not Discriminate” section is deleted and replaced with the following: “No
Obligation to Accept All Cards of a Payment Network: If you accept Credit Card payments from a
particular Payment Network you are not obligated to accept Debit Card payments from that same
Payment Network, and vice versa. You can choose to accept only Credit Card or Debit Card payments
from a Payment Network without having to accept both.”
215
Operating Guide OG201702
84
o In the “General Operating Guidelines” section of Chapter 1 of the Operating Guide, About Your Card
Program, in the “Security Program Compliance” section, the reference to “Visa’s Cardholder
Information Security Program (CISP)” is hereby replaced with “Visa’s Account Information Security
(AIS) program,” with which Canadian Companies and any third party vendors utilized by Canadian
Companies must comply.
CHAPTER 2
The following provisions are hereby added to or amended in Chapter 2 of the Operating Guide, Processing
Transactions:
o In “The Electronic Authorization Process” section of Chapter 2 of the Operating Guide, Processing
Transactions, Canadian Companies must send “Declined Pick-Up” Cards to the following Canadian
address:
Exception Processing
ATTN: Card Pick Up
Elavon Canada Company
P.O. Box 4373 STN A
Toronto, Ontario M5W3P6
o The “Transaction Processing Restrictions” section, “Surcharges” paragraph, of Chapter 2 of the
Operating Guide, Processing Transactions, is inapplicable, as surcharging of Credit Card Transactions
is not permitted in Canada.
o In the “Processing Card Not Present Transactions – Card Identification Number and Address
Verification Service” section of Chapter 2 of the Operating Guide, Processing Transactions, Canadian
Companies needing more information about processing Card Not Present Transactions should call the
following numbers for assistance from American Express and Discover Network:
American Express: (800) 268-9824
Discover Network: (800) 263-0104
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, the following provisions are hereby added
with respect to PIN-authorized Debit Card Transactions in Canada:
Surcharges. Company may add an amount to the price of goods or services Company offers as a
condition of paying with a Interac Debit Card provided that the Cardholder is notified through the POS
Device of such amount and the Cardholder has the option to cancel the Debit Card Transaction,
without cost, prior to the Debit Card Transaction being sent to the Issuer for Authorization and
provided that the addition of a surcharge or user fee is permitted by the Debit Card Rules. Visa,
MasterCard and Discover Network do not permit surcharging of Debit Card Transactions in Canada.
Non-Disclosure of Debit Card Rules. Company will not disclose the Debit Card Rules to any Person
except as may be permitted under the Agreement or required by applicable Law. For purposes of
Transactions in Canada, the Debit Card Rules include all applicable rules and operating regulations of
the EFT Networks, and all rules, directions, operating regulations, and guidelines for Debit Card
Transactions issued by Servicer from time to time, including, without limitation, all amendments,
changes, and revisions made thereto from time to time. Company agrees to take care to protect the
Debit Card Rules using a degree of care at least equal to that used protect Company’s own confidential
information, and Company will not use the Debit Card Rules for its own benefit or the benefit of any
third person without the consent of the EFT Networks.
216
Operating Guide OG201702
85
Employee Logs; Due Diligence. Company will maintain accurate logs of employee shifts, and will
provide these logs to Servicer within 24 hours of a request to do so as part of an investigation of a
Debit Card fraud or other incident. Company acknowledges and agrees that the EFT Network requires
Servicer or its designated agents to perform a due diligence review to determine that Company is able
to comply with all applicable requirements for the Debit Card Transaction services, including but not
limited to security and technical standards specified by Servicer and the EFT Networks. Company
acknowledges that additional due diligence may be conducted by Servicer or its designated agents in
the event of a change in control of Company’s business. Servicer will not be required to provide the
Debit Card Transaction services to Company if Servicer determines that to do so would pose a material
risk to the security or integrity of the Debit Card Transaction services.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, the following provisions are added to the
“Use and Availability of POS Devices and PIN Pads” heading with respect to PIN-authorized Debit
Card Transactions in Canada:
Company is responsible for installing the POS Device and PIN Pad in such a way that Cardholders
may enter their PIN into the PIN Pad in a confidential manner. Company must not install the PIN
Pad in a location that will allow easy visibility by third parties when the PIN Pad is in use by a
Cardholder. For attended operations, Company must equip the PIN Pad with a privacy shield or
design it to be hand-held so that the Cardholder can shield it with his or her body.
Company must take all reasonable precautions to ensure that all POS Devices are closed and
unavailable for use after business hours. Company also must advise Servicer immediately if
Company suspects that any POS Device has been tampered with or if any PIN Pad has been lost or
stolen.
Company must not manually key direct Debit Card information into a POS Device in order to
complete a Transaction. Company must give the Cardholder a Transaction Receipt regardless of
whether a Debit Card Transaction is approved, declined or not completed.
If Company’s printer is not operational and Company’s POS Device has processed the Debit Card
Transaction, Company will (i) provide an alternate Transaction Receipt, such as a completed and
dated sales slip or manually created facsimile showing the account number on the Debit Card to
indicate that payment was made with that Debit Card, or (ii) reverse the Debit Card Transaction on
the day of the request or the next business day if the Cardholder requests that Company do so.
If a Debit Card is left at Company’s premises, Company agrees to promptly return it to the
Cardholder, subject to satisfactory identification of the Cardholder, or if Company is unable to
return the Debit Card or if the Debit Card is not claimed within twenty four (24) hours, Company
must deliver such card to us at Company’s first available opportunity.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, in addition to the listed requirements
under the “Transaction Receipt Requirements” heading, the following requirements apply with respect
to PIN-authorized Debit Card Transactions in Canada:
Transaction Receipt Requirements. Company will retain a copy of each Debit Card Transaction
Receipt for a period of three (3) years from the date of the applicable Transaction.
The following requirements are hereby added to the information which must be contained on a Debit
Card Transaction Receipt:
Unique number or code assigned to the POS Device at which the Debit Card Transaction was
made;
Issuer Authorization Number;
217
Operating Guide OG201702
86
Indicate the status and disposition of the Transaction, approved or declined; and
Amount of any user fee or surcharge amount, if imposed.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, in addition to the listed procedures under
the “Merchandise Returns” heading, the following procedures apply with respect to PIN-authorized
Debit Card Transactions in Canada:
Merchandise Returns.
For all Merchandise returns, or any other debit return initiated through Company’s POS Device or
account, Company bears all responsibility for such transactions even if fraudulent.
o In the “Other Transaction Types” section of Chapter 2 of the Operating Guide, Processing
Transactions, under the “Quasi Cash Transactions” heading, the following additional language is
added to “Casino gaming chips”:
Casino gaming chips—must be authorized using a POS Device that is capable of reading the Card
Verification Value from the Magnetic Stripe. A key-entered Transaction is not permitted for the
purpose of obtaining Casino gaming chips.
CHAPTER 5
The following provision is applicable to Canadian Companies and is hereby added to Chapter 5 of the
Operating Guide, Code 10 Procedures:
o Canadian Companies that encounter unauthorized Cards should send the information set forth in
Chapter 5 of the Operating Guide to the following Canadian address:
Exception Processing
ATTN: Card Pick Up
Elavon Canada Company
P.O. Box 4373 STN A
Toronto, Ontario M5W3P6
CHAPTER 8
The provisions set forth in Chapter 8, Vehicle Rental or Leasing Authorization Procedures, are
inapplicable, as these services are not available to Canadian Companies.
CHAPTER 9
The provisions set forth in Chapter 9, Lodging Accommodations Authorization Procedures, are
inapplicable, as these services are not available to Canadian Companies.
CHAPTER 10
The following provision is hereby added to Chapter 10 of the Operating Guide, Convenience and
Government/Public Institution Service Fee Requirements in the Convenience Fee subsection:
218
Operating Guide OG201702
87
o Company may charge a convenience fee only if Company does not accept Visa in the channel of
commerce to which the convenience fee is applied (Visa does not permit convenience fees in Canada).
The following provision is hereby added to Chapter 10 of the Operating Guide, Convenience and
Government/Public Institution Service Fee Requirements in the Government/Public Institution Service Fees
subsection:
o Company may charge a GPISF only if Company does not accept MasterCard in the channel of
commerce to which the GPISF is applied (MasterCard does not permit service fees in Canada).
Section 3(b) of the GPISF section of Chapter 10 is modified as follows:
i. Eligible Companies. Companies operating in MCCs 4900 (Utilities), 6513 (Property
Management/Rent), 8220 (Universities & Colleges), 8211 (Private Elementary & Secondary Schools),
8351 (Childcare), 9222 (Fines), and 9311 (Taxes) are eligible to charge or to have Servicer charge a
GPISF to Customers in connection with an Eligible Transactions listed in 3(b)(ii) below.
ii. Transaction Requirements. The following requirements apply to Canadian Eligible Transactions
under Section 3(b).
1. The GPISF may only be assessed for Transactions resulting from Card Not Present channels. The
GPISF may be applied on recurring transactions.
2. The GPISF must be disclosed to the Cardholder prior to the completion of the Transaction, and the
Cardholder must be given the option to cancel the Transaction if the Cardholder does not wish to
pay the GPISF.
3. The GPISF may be assessed by Company or a third party, with the assessor of the service fee
clearly disclosed to the Cardholder.
4. The GPISF should only be assessed on the final Transaction amount, after all discounts and
rebates have been applied. The GPISF may be recorded and processed as a separate Transaction if
assessed by a third party.
5. The GPISF must be recorded separately on the transaction receipt, regardless of the assessor.
6. The GPISF must not be identified as a “Visa Fee.”
7. Company may not assess a separate Convenience Fee or Credit Card Surcharge (as such terms are
defined in Visa’s Payment Network Regulations) or if prohibited based on local law.
8. The GPISF fee cap is 0.75% for debit and 1.75% for eligible Credit, Prepaid, and International
Credit Card Transactions. The GPISF may not be greater than the service fee charged on a similar
transactions using a similar form of payment through any other Payment Network at the same
Company. The GPISF must be the same for all similar Card products, regardless of the issuer.
9. Companies accepting Visa cards for Eligible Transactions must include the words “Service Fee”
in the “Company name” field of the Visa Transaction clearing record for the collection of the
GPISF.
Company must accept Visa as a means of payment in all Card Not Present channels..
CHAPTER 11
The provisions set forth in Chapter 11, Electronic Benefits Transfer (EBT) Transactions, are inapplicable,
as these services are not available to Canadian Companies.
CHAPTER 12
The provisions set forth in Chapter 12, PIN-less Bill Payment Transactions, are inapplicable, as these
services are not available to Canadian Companies.
219
Operating Guide OG201702
88
CHAPTER 13
The provisions set forth in Chapter 13, No Signature Required Transactions, are inapplicable, as these
services are not available to Canadian Companies.
CHAPTER 14
The provisions set forth in Chapter 14, Wireless Service Transactions, are inapplicable, as these services
are not available to Canadian Companies.
CHAPTER 15
The provisions set forth in Chapter 15, Store and Forward Application Transactions, are inapplicable, as
these services are not available to Canadian Companies.
CHAPTER 20
The provisions set forth in Chapter 20, Services in Puerto Rico, are inapplicable, as these services are not
available to Canadian Companies.
CHAPTER 21
The provisions set forth in Chapter 21, Fanfare Loyalty and Gift Card Services, are inapplicable, as these
services are not available to Canadian Companies.
CHAPTER 33
The following provision is applicable to Canadian Companies and is hereby added to Chapter 33 of the
Operating Guide, Additional Resources:
o To obtain Payment Network-specific information, Canadian Companies can access the following web
sites:
American Express: http://www.americanexpress.ca
Discover Network: http://www.novusnet.com
MasterCard: http://www.mastercard.com/canada/business/merchant
Visa: http://www.visa.ca
INTERAC ONLINE SERVICES
Interac Online is a service whereby an Interac Online Cardholder may choose to pay Company for goods and
services purchased over the Internet from a Customer account at a financial institution. The following
provisions are applicable to Canadian Companies utilizing the Interac Online services.
Interac Online Rules. Company will comply with and be bound by the Interac Online Rules, which are
incorporated by this reference as if fully set forth herein. Servicer and/or the Acxsys Corporation may amend
the Interac Online Rules and any of their requirements and/or regulations at any time and continued use of the
Interac Online services will evidence Company’s agreement to be immediately bound by any new requirements
and/or regulations. Company hereby grants to Servicer the right to verify that Company is in compliance with
the Interac Online Rules. Company will not disclose the Interac Online Rules to any Person except as may be
220
Operating Guide OG201702
89
permitted under the Agreement or as required by applicable Law.
Due Diligence. Company acknowledges and agrees that Servicer or its designated agent may perform a due
diligence review to determine Company’s ability to comply with all applicable requirements of the Interac
Online Rules. Company acknowledges and agrees that additional due diligence may be conducted by Servicer
or its designated agent in the event of a change in control of Company’s business. Servicer will not be required
to provide the Interac Online services to Company if Servicer determines that to do so would pose a material
risk to the security or integrity of the Interac Online system. Company provides informed consent that Servicer
may use any information collected from its Companies.
Security. Company agrees to provide to Servicer the information required to complete Servicer’s security
compliance certification program, as required by the Interac Online Rules.
Minimum Transaction. Company agrees to comply with any minimum transaction values which may be set by
Servicer or the bank or other financial institution issuing the Interac Online Card.
Types of Transactions. Company may process purchases and refunds (credits) for Interact Online Cardholders.
Company may not process Transactions for cash back or balance inquiries.
Interac Online Transaction Fees. Company may not add any amount to the posted price of goods or services
as a condition of paying with an Interac Online Card, unless permitted by the applicable Interac Online Rules.
Display of Interac Online Logo and/or Wordmark. Unless otherwise informed by Servicer, Company will
prominently display the most current version of the Interac Online logo and/or wordmark on the checkout page
of Company’s website in accordance with the specifications and requirements set forth in the Interac Online
Rules. Company’s right to use or display such marks will continue only as long as the Agreement remains in
effect and such right will automatically terminate upon termination of the Agreement.
Website Requirements. Company’s website must comply with the Agreement and the Interac Online Rules,
including, but not limited to, the following:
Confirmation Page: Company must display both the bank or other financial institution’s name and
confirmation number as received in the form post message. The Customer must be given the opportunity
to print the confirmation page as a record of the Transaction, which may be accomplished using the web
browser’s print function. Further, the confirmation page should state that the Transaction was successful.
Timeout message: If Company allows less than 30 minutes for a Customer to complete a Transaction
through an issuer’s website, Company will post notice on the Company website to inform the Customer
the amount of time allotted to complete the Transaction and that the Transaction will “timeout” if the
Customer does not complete the Transaction within the allotted time.
Currency: Company website must disclose the amount that will be debited from the Customer’s account in
Canadian funds, and indicate that the currency is Canadian dollars (e.g., by using the prefix “C$” or
“CAD”).
Learn More: Company must provide a link to the “Learn More” site before the Customer initiates the
Transaction and leaves Company’s website.
CHIP AND PIN TRANSACTIONS
Credit Cards and Debit Cards are changing from signature-based and PIN-based Magnetic Stripes to PIN-based
Chip Cards. This initiative, which is known as “Chip and PIN,” is in response to escalating levels of fraud, most
notably, counterfeiting and the use of lost or stolen Cards. A Chip Card contains a microchip, which is
embedded into the Card. It contains extremely secure memory and processing capabilities. The information it
221
Operating Guide OG201702
90
contains helps ensure that the Chip Card is authentic and makes it difficult and expensive for a criminal to
counterfeit the Chip Card. A PIN is entered by the Cardholder to confirm that they are the actual owner of that
Chip Card.
Chip Card Acceptance.
The Chip Card and Cardholder must be present for all Chip and PIN Transactions.
To initiate a Chip and PIN Transaction, insert the Chip Card into the Chip-Reading Device.
Company will require that each Cardholder enter his or her PIN at the Chip-Reading Device. No data
referencing the Cardholder’s PIN will be printed on any Transaction Receipt.
Company must submit Authorization and clearing messages for Chip and PIN Transactions using full data.
Company must provide the Authorization Code in the clearing record for all Chip and PIN Transactions
that are approved offline.
If a Canada Issuer (or its agent) issues a Declined Code or a Declined Pick-Up Code, or a Compliant Chip
Card declines a Chip and PIN Transaction, the Transaction must not be processed by any other means.
If the Chip or Chip-Reading Device is inoperable, Company must obtain a Magnetic Swipe Authorization.
If the Magnetic Stripe cannot be read, or if Magnetic Swipe Authorization is not available, existing Card
acceptance and Transaction processing procedures apply. Note that where an Authorization request is
made when the Chip or Chip-Reading Device is inoperable, Company must include the appropriate values
in the Authorization request identifying the Transaction as a fallback Transaction to the Chip and PIN
Transaction.
Company must comply with all, and ensure that its Chip-Reading Devices comply with all, Payment
Network Regulations applicable to Chip and PIN Transactions, including all operating requirements,
technical guides and other requirements specified by the applicable Payment Networks in connection with
the acceptance of Chip Cards.
Note that Company will have sole and exclusive liability for counterfeit and fraudulent Transactions that occur,
but which could have been prevented had Company installed and properly used Chip and PIN Technology in
accordance with all Payment Network Regulations.
222
Operating Guide OG201702
91
Chapter
20
Services in Puerto Rico
This Chapter describes certain requirements with which Companies operating in Puerto Rico (“Puerto Rican
Companies”) must comply. Puerto Rican Companies must execute a separate agreement or otherwise be
approved to receive Services from Servicer for Transactions accepted at Company locations in Puerto Rico.
Puerto Rican Companies must comply with all requirements set forth in the Agreement and in this Operating
Guide, as such requirements are supplemented and/or modified by the provisions contained in this Chapter.
CHAPTER 1
The following provisions are hereby added to or amended in Chapter 1 of the Operating Guide, About Your
Card Program:
o In the “General Operating Guidelines” section of Chapter 1 of the Operating Guide, About Your Card
Program, in the “Security Program Compliance” section, the reference to “Visa’s Cardholder
Information Security Program (CISP)” is hereby replaced with “Visa’s Account Information Security
(AIS) program,” with which Puerto Rican Companies and any third party vendors utilized by Puerto
Rican Companies must comply.
CHAPTER 2
The following provisions are hereby added to or amended in Chapter 2 of the Operating Guide, Processing
Transactions:
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, the following provisions are hereby added
with respect to PIN-authorized Debit Card Transactions in Puerto Rico:
Surcharges. The ATH Network does not permit surcharging of Debit Card Transactions at POS
Devices.
Non-Disclosure of Debit Card Rules. Company will not disclose the Debit Card Rules to any Person
except as may be permitted under the Agreement or required by applicable Law. For purposes of
Transactions in Puerto Rico, the Debit Card Rules include all applicable rules and operating
regulations of the EFT Networks, and all rules, directions, operating regulations, and guidelines for
Debit Card Transactions issued by Servicer from time to time, including, without limitation, all
amendments, changes, and revisions made thereto from time to time. Company agrees to take care to
protect the Debit Card Rules using a degree of care at least equal to that used protect Company’s own
confidential information, and Company will not use the Debit Card Rules for its own benefit or the
benefit of any third person without the consent of the EFT Networks.
223
Operating Guide OG201702
92
Employee Logs; Due Diligence. Company will maintain accurate logs of employee shifts, and will
provide these logs to Servicer within 24 hours of a request to do so as part of an investigation of a
Debit Card fraud or other incident. Company acknowledges and agrees that the EFT Networks require
Servicer or its designated agents to perform a due diligence review to determine that Company is able
to comply with all applicable requirements for the Debit Card Transaction services, including but not
limited to security and technical standards specified by Servicer and the EFT Networks. Company
acknowledges that additional due diligence may be conducted by Servicer or its designated agents in
the event of a change in control of Company’s business. Servicer will not be required to provide the
Debit Card Transaction services to Company if Servicer determines that to do so would pose a material
risk to the security or integrity of the Debit Card Transaction services.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, the following provisions are added to the
“Use and Availability of POS Devices and PIN Pads” heading with respect to PIN-authorized Debit
Card Transactions in Puerto Rico:
Company is responsible for installing the POS Device and PIN Pad in such a way that Cardholders
may enter their PIN into the PIN Pad in a confidential manner. Company must not install the PIN
Pad in a location that will allow easy visibility by third parties when the PIN Pad is in use by a
Cardholder. For attended operations, Company must equip the PIN Pad with a privacy shield or
design it to be hand-held so that the Cardholder can shield it with his or her body.
Company must take all reasonable precautions to ensure that all POS Devices are closed and
unavailable for use after business hours. Company also must advise Servicer immediately if
Company suspects that any POS Device has been tampered with or if any PIN Pad has been lost or
stolen.
Company must not manually key direct Debit Card information into a POS Device in order to
complete a Transaction.
Company must give the Cardholder a Transaction Receipt regardless of whether a Debit Card
Transaction is approved, declined or not completed. If Company’s printer is not operational and
Company’s POS Device has processed the Debit Card transaction, Company will (i) provide an
alternate Transaction Receipt, such as a completed and dated sales slip or manually created
facsimile showing the account number on the Debit Card to indicate that payment was made with
that Debit Card, or (ii) reverse the Debit Card Transaction on the day of the request or the next
business day if the Cardholder requests that Company do so.
If a Debit Card is left at Company’s premises, Company agrees to promptly return it to the
Cardholder, subject to satisfactory identification of the Cardholder, or if Company is unable to
return the Debit Card or if the Debit Card is not claimed within twenty four (24) hours, Company
must deliver such card to us at Company’s first available opportunity.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, in addition to the listed requirements under
the “Transaction Receipt Requirements” heading, the following requirements apply with respect to
PIN authorized Debit Card Transactions in Puerto Rico:
Transaction Receipt Requirements. Company will retain a copy of each Debit Card Transaction
Receipt for a period of three (3) years from the date of the applicable Transaction. The following
requirements are hereby added to the information which must be contained on a DebitCard Transaction
Receipt:
Unique number or code assigned to the POS Device at which the Debit Card Transaction was
made;
224
Operating Guide OG201702
93
Issuer Authorization Number;
Indicate the status and disposition of the Transaction, Approved or Declined; and
Amount of any user fee or surcharge amount, if imposed.
o In the “Additional Requirements Applicable to PIN-Authorized Debit Card Transactions” section of
Chapter 2 of the Operating Guide, Processing Transactions, in addition to the listed procedures under
the “Merchandise Returns” heading, the following procedures apply with respect to PIN-authorized
Debit Card Transactions in Puerto Rico:
Merchandise Returns.
For all Merchandise returns, or any other debit return initiated through Company’s POS Device or
account, Company bears all responsibility for such transactions even if fraudulent.
CHAPTER 10
The following provision is hereby added to Chapter 10 of the Operating Guide, Convenience Fee
Requirements:
o Company may charge a convenience fee only if Company does not accept Visa in the channel of
commerce to which the convenience fee is applied.
CHAPTER 12
The provisions set forth in Chapter 12, PIN-less Bill Payment Transactions, are inapplicable, as these
services are not available to Puerto Rican Companies.
CHAPTER 21
The provisions set forth in Chapter 21, Fanfare Loyalty and Gift Card Services, are inapplicable, as these
services are not available to Puerto Rican Companies.
IVU (Impuesto de Venta y Uso) Program
Companies operating in Puerto Rico must comply with the requirements of this Chapter. All Companies that
operate locations in Puerto Rico are obligated to register with the Department of Treasury and may be required
to participate in the IVU program. Companies operating in Puerto Rico must complete the IVU registration
process to determine if your business qualifies.
Company Obligations in the IVU Program
All Companies are obligated to register for the IVU program. If you have not registered, please follow the
registration steps below:
Visit the Department of Treasury’s internet website at www.ivuloto.pr.gov and click on the Portal de
Registro.
During the registration process, please select Elavon as your processor.
You will be notified whether your business qualifies for the IVU program and you will receive a
Merchant Registration Number.
225
Operating Guide OG201702
94
If you complete the registration process, but are advised that you are not eligible for the IVU program,
you have complied with the requirements of the IVU program.
Please note that any company that does not register could be subject to a penalty imposed by the
Department of Treasury.
All eligible Companies must:
Process or register through your POS Device all transactions for goods or services for which the
purchaser is present at the point of sale.
Provide the purchaser the official purchase receipt, with the control code, printed by the POS Device.
Transmit, on a daily basis, all sales tax data to Elavon via your POS Device and Elavon will relay that
information to the Department of Treasury.
Exercise due care in using the POS Device.
Guidelines for Companies
Elavon offers several POS Devices that support the IVU program as an integrated feature of our transaction-
processing services.
BOARDING
Contact Elavon Customer Care to request support for the IVU program on your POS Device.
Complete and sign an Add Equipment form. Be sure to include your Merchant Registration Number
received from the Department of Treasury.
Submit the Add Equipment form to Elavon.
The POS Device will be updated with the appropriate IVU-supported application.
TRANSACTION PROCESSING
For all on-line transactions, such as Credit Card or Debit Card transactions, you must enter the amount of
the sale plus the State Sales Tax and the Municipal Sales Tax into the POS Device during the course of
entering the Transaction information.
For cash and cash equivalent transactions, such as cash, check or money order transactions, you must enter
these transactions into the POS Device, including the State Sales Tax and Municipal Sales Tax.
During periods of time when the system and/or POS Device are not functioning properly, control codes will
not be generated for transactions until such time as the system is restored and/or the POS Device is
repaired.
Please note that Elavon is not responsible for the validity of the information entered into the POS Device
for each transaction.
SAMPLE RECEIPT
Below is an example of the manner in which the sales tax information will appear on the purchaser receipt:
226
Operating Guide OG201702
95
Below is an example of the manner in which the IVU-related information will appear on the purchaser
receipt:
CONTROL: NNNNN-NNNNN
EG
More Information
You can find more information regarding the IVU program, including contact information and technical support
information, at www.ivuloto.pr.gov.
FanFare Loyalty Services and Fanfare Gift Card Services
The provisions set forth in Chapter 21, Fanfare Loyalty and Gift Card Services, are inapplicable, as these
services are not available in Puerto Rico.
227
Operating Guide OG201702
96
Chapter
21
Fanfare Loyalty and Gift Card Services
This Chapter describes certain services that are available to Companies that have been approved by Servicer to
receive Fanfare Services. In addition to the requirements set forth in the Agreement and other applicable procedures
set forth in the Operating Guide, Companies that use Fanfare Services will adhere to the requirements set forth in
this Chapter.
GENERAL FEATURES AND REQUIREMENTS
Overview of Fanfare Services. Company has elected to receive from Servicer one or both of the Fanfare
Loyalty Services and/or the Fanfare Gift Card Services. Servicer delivers the Fanfare Services through the
Fanfare Platform. Company’s access to and use of the Fanfare Services and the Fanfare Platform are subject to
the Agreement, the provisions of the Operating Guide, and the materials made available to Company by
Servicer that relate to the Fanfare Services, including any quick reference guides and best practices guides.
Fanfare Web Portal. Servicer will provide Company with access to the Fanfare Web Portal. Company agrees
to review and to comply with any materials made available by Servicer through the Fanfare Web Portal from
time to time in connection with Company’s use of the Fanfare Services and its operation of its Fanfare Loyalty
Program and/or Fanfare Gift Card Program.
FANFARE LOYALTY SERVICES
Companies that elect to use the Fanfare Loyalty Services will have access to the Fanfare Services and Fanfare
Platform made available by Servicer for Company’s development, implementation and maintenance of its
Fanfare Loyalty Program.
Company Enrollment and Set Up. Company must enroll and be approved by Servicer to participate in
and use the Fanfare Loyalty Services. Once approved, Servicer will provide Company with a welcome kit
that may include Model Documents, generic branded marketing materials to help Company promote its
Fanfare Loyalty Program to Customers, marketing tips, staff training tips, and a terminal quick reference
guide. Only Fanfare Enrolled Customers may participate in Company’s Fanfare Loyalty Program.
Customer Enrollment. Company’s Customers must affirmatively enroll in Company’s Fanfare Loyalty
Program in order to participate. Company may not use an opt-out or other negative consent campaign to
enroll Customers in its Fanfare Loyalty Program. A Customer is considered a Fanfare Enrolled Customer
when the Customer explicitly opts into participation in Company’s Fanfare Loyalty Program and agrees to
be subject to Company’s Fanfare Loyalty Program terms and conditions and related privacy policy. A
Fanfare Enrolled Customer’s election to participate in Company’s Fanfare Loyalty Program will be
228
Operating Guide OG201702
97
communicated to Servicer through Company’s properly-enabled Supported Hardware (for point-of-sale
enrollments) or when the Customer registers for Company’s Fanfare Loyalty Program at Company’s
Fanfare Loyalty Website (for Customers that do not enroll at the point of sale).
Company Fanfare Loyalty Website. As part of the Fanfare Loyalty Services, Servicer will provide a Fanfare
Loyalty Website for Customer registration and Fanfare Loyalty Program Account management. Company must
ensure that the internet address of its Fanfare Loyalty Website is included on every Transaction Receipt the
Company prints for Customers that enroll in the Company’s Fanfare Loyalty Program at the Company’s point
of sale (as described below). The Fanfare Loyalty Website will:
Make available to Customers all Company Fanfare Loyalty Program disclosures;
Enable Customers to enroll and un-enroll in the Company Fanfare Loyalty Program;
Collect Customer Data; and
Provide Customers with access to information about available rewards and programs, rewards eligibility,
and progress toward achieving rewards.
METHODS OF CUSTOMER ENROLLMENT IN COMPANY’S FANFARE LOYALTY PROGRAM
Enrollment at Point of Sale. Customers may initially enroll in Company’s Fanfare Loyalty Program at the
time of a point-of-sale purchase Transaction at a Company location. Company offers Customers the opportunity
to enroll at the point-of-sale through prompting via Company’s Supported Hardware. Company may not offer
point-of-sale Fanfare Loyalty Program enrollment other than through Supported Hardware. Company is
responsible for ensuring that any Customer offered enrollment in Company’s Fanfare Loyalty Program
is notified that such enrollment is optional and is not a condition to completing the purchase Transaction.
When Company is collecting information in connection with enrolling a Customer in Company’s Fanfare
Loyalty Program at the point of sale, Company should clearly communicate to the Customer that the purpose
for collecting such information is loyalty program enrollment and not a part of the Transaction.
Company must obtain a phone number from the Customer at the time of the Customer’s enrollment at the
point-of-sale, and must input the phone number into the POS Device so that Servicer may reflect the
Customer as a Fanfare Enrolled Customer in Company’s Fanfare Loyalty Program.
Company may present a Customer electing to enroll at the point-of-sale with the option to (i) link the
Customer’s Credit Card or Debit Card with the Fanfare Enrolled Customer’s Fanfare Loyalty Program
Account, or (ii) receive a Fanfare Loyalty Card linked to the Fanfare Enrolled Customer’s Fanfare Loyalty
Program Account. Each of these options is described further below.
When a Customer enrolls at the point-of-sale, the Transaction Receipt provided to the Customer at the
conclusion of the Transaction must confirm enrollment and direct the Fanfare Enrolled Customer to follow
the internet link disclosed on the Transaction Receipt to the Company’s Fanfare Loyalty Website where the
Fanfare Enrolled Customer may view the full terms and conditions and privacy policy governing the
Fanfare Enrolled Customer’s participation in Company’s Fanfare Loyalty Program.
Enrollment through Fanfare Loyalty Website. Customers that do not enroll at the point of sale may enroll by
visiting the Company’s Fanfare Loyalty Website and completing the online registration process described under
“Fanfare Loyalty Program Registration” below.
FANFARE LOYALTY PROGRAM REGISTRATION AND ADDITIONAL FEATURES
Fanfare Loyalty Program Registration. Customers that wish to enroll in Company’s Fanfare Loyalty
Program online, and Customers that have enrolled at the Company’s point-of-sale but wish to enhance their
Fanfare Loyalty Program experience, may register at Company’s Fanfare Loyalty Website. Each registering
229
Operating Guide OG201702
98
Customer will be required to provide a phone number and other identifying information to register through
Company’s Fanfare Loyalty Website. Fanfare Registered Customers may also elect to link a Credit Card or
Debit Card, and/or a Fanfare Loyalty Card, with their Fanfare Loyalty Program Account, each as further
described below.
Linking a Credit Card or Debit Card to a Fanfare Enrolled Customer’s Fanfare Loyalty Program
Account. A Fanfare Enrolled Customer may link a Credit Card or Debit Card to the Fanfare Enrolled
Customer’s Fanfare Loyalty Account. Linking a Credit Card or Debit Card may be completed at the Company’s
point-of-sale using Supported Hardware (including at the time of initial enrollment) or at the Company’s
Fanfare Loyalty Website.
Linking a Fanfare Loyalty Card to a Fanfare Enrolled Customer’s Fanfare Loyalty Program Account. If
Company’s selected Fanfare Loyalty Program supports this feature, Company may choose to offer a Fanfare
Enrolled Customer the option to receive and use a Fanfare Loyalty Card as a means of accessing the Fanfare
Enrolled Customer’s Fanfare Loyalty Account. Linking a Fanfare Loyalty Card may be completed at the
Company’s point-of-sale using Supported Hardware or at the Company’s Fanfare Loyalty Website. Fanfare
Loyalty Cards must be ordered through Servicer and must comply with Servicer’s requirements related to
Fanfare Loyalty Cards.
Rewards. Company may use the Fanfare Web Portal to create offers and establish rewards and qualifications.
All offers and rewards established under Company’s Fanfare Loyalty Program are available to all Fanfare
Enrolled Customers, except where Servicer supports and Company elects to make certain offers or rewards
available only to a select segment of Fanfare Enrolled Customers. Company is solely responsible for ensuring
that all offers and rewards established by Company (including any offers or rewards suggested by Servicer for
Company’s use) are suitable for Company’s situation and business, and that all such offers and rewards
(including how such offers and rewards are promoted or marketed) comply with all Laws. Company will not
make or promote offers or rewards that are unrelated to Company’s business or that include infringing, obscene,
threatening, defamatory, fraudulent, abusive or otherwise unlawful or tortious material, including material that
is harmful to children or violates third party privacy rights. Company is solely responsible for the costs and any
other expenses or liabilities arising from or in connection with any offers or rewards made or promoted by
Company.
COMPANY FANFARE LOYALTY PROGRAM MARKETING AND COMMUNICATION
Companies using the Fanfare Loyalty Services will have access to e-mail marketing services supported by the
Fanfare Platform for communicating with and marketing to Fanfare Registered Customers regarding
Company’s Fanfare Loyalty Program. Fanfare Registered Customers will be able to manage their marketing
preferences through their Fanfare Loyalty Program Account accessible at the Fanfare Loyalty Website.
Company will control, and is solely responsible for, the marketing or communication characteristics (such as
frequency, timing, recipients, and opt-out lists associated with such marketing or communications) and the
content of any such marketing or communication efforts through the Fanfare Platform. Further, Company
assumes full responsibility and liability for ensuring that any such marketing efforts or communications comply
with (i) Laws, including where Company’s marketing materials are based on templates or make use of services
provided by Servicer, (ii) are conducted in accordance with the terms and conditions and privacy policy
governing the Fanfare Registered Customer’s participation in Company’s Fanfare Loyalty Program; and (iii) are
consistent with any other disclosure made by Company to a Fanfare Registered Customer concerning
Company’s marketing and information use practices generally.
E-mail marketing and communication. Servicer provides Company with the ability to send marketing and
communication e-mails to its Fanfare Registered Customers through the Fanfare Platform. Such e-mails must
follow any format specifications provided to Company by Servicer. Servicer does not review the content of any
e-mail message requested to be sent by Servicer on behalf of Company to its Fanfare Registered Customers.
Company acknowledges and agrees that it is solely responsible for the content of any such e-mail message, and
that all e-mail messages sent using the Fanfare Platform will relate to Company’s Fanfare Loyalty Program
relationship with the Fanfare Registered Customers. Nonetheless, Servicer reserves the right to refuse to send
230
Operating Guide OG201702
99
any e-mail communication requested by Company that the Servicer deems, in its sole discretion, to be in
violation of any Law, that is unrelated to the Company’s business, that is infringing, obscene, threatening,
defamatory, fraudulent, abusive, unlawful, tortious, threatening or inappropriate for children, or that is outside
the scope of the Fanfare Loyalty Services.
Customer “Unsubscribe” Option. All marketing and communication e-mails sent by Company through the
Fanfare Platform will contain an “unsubscribe” link, which will direct the Fanfare Registered Customer to a
Fanfare-hosted “landing page” where the Customer can register his/her election to stop receiving marketing e-
mails from Company. Servicer will track the marketing preferences specified by Company’s Fanfare Registered
Customers, including those who have elected to unsubscribe or opt-out from marketing e-mails from Company,
which information will be accessible by Company through the Fanfare Web Portal. In addition, the Fanfare
Web Portal will enable Company to manually “unsubscribe” Fanfare Registered Customers who have
communicated their opt-out election to Company outside of the Fanfare Platform.
IMPORTANT: COMPANY REQUIREMENTS FOR E-MAIL MARKETING TO CUSTOMERS
The Federal CAN-SPAM Act of 2003 (CAN-SPAM) places certain responsibilities on “senders” of e-mail. As a
Company sending e-mails to Fanfare Registered Customers through the Fanfare Loyalty Program, it is your
responsibility to comply with these CAN-SPAM requirements. Among these requirements, when a customer
responds to a commercial e-mail from a sender, and requests that the sender not send future commercial e-mail
communications to the customer, this request must be promptly honored. This is true regardless of whether
these requests are in response to an e-mail sent to a customer by Company through the Fanfare Loyalty
Program, or outside of the Fanfare Loyalty Program.
For Fanfare Registered Customers who opt-out/unsubscribe from receiving future Company marketing e-mails
through the Fanfare Platform, the Fanfare Platform will automatically “block” further marketing e-mails from
Company to those Fanfare Registered Customers. However, it is the Company’s sole responsibility to ensure
that these customers are also blocked (i.e., unsubscribed) from receiving any future commercial e-mails which
Company may send outside of the Fanfare Platform. Additionally, when a Fanfare Registered Customer
responds to a commercial e-mail sent by the Company outside of the Fanfare Platform, and opts-
out/unsubscribes from receiving further commercial e-mails from Company, it is Company’s sole responsibility
to record such opt-out request within the Fanfare Platform to ensure that future Fanfare marketing e-mails from
the Company to the Fanfare Registered Customer are blocked.
To help facilitate your compliance with these requirements, Fanfare provides Companies with access to all
relevant opt-out/unsubscribe information within the Fanfare Platform at all times. With this access, it is
Company’s responsibility to:
(1) Review the list within the Fanfare Web Portal of those Fanfare Registered Customers who have opted-
out/unsubscribed from receiving commercial e-mails from Company through the Fanfare Loyalty Program and
ensure that these Fanfare Registered Customers are similarly blocked (or removed) from any other commercial
e-mail list that Company maintains or utilizes outside of the Fanfare Loyalty Services; and
(2) Regularly access the Fanfare Web Portal to manually block any Fanfare Registered Customer from
receiving marketing e-mails from Company through the Fanfare Platform, when such Fanfare Registered
Customer has provided Company with a request, outside of the Fanfare Platform, to opt-out/unsubscribe from
receiving future commercial e-mails from Company.
Additional information regarding CAN-SPAM can be found at the Federal Trade Commission’s Business
Center, a website designed to help small businesses understand and comply with various laws, including CAN-
SPAM. The business center can be found at http://business.ftc.gov/ and a CAN-SPAM guide for business can
be found at http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business. We
particularly encourage those Companies that conduct e-mail marketing campaigns in addition to those
conducted by the Company through the Fanfare Loyalty Services to understand the compliance obligations
imposed by CAN SPAM, and to seek legal guidance on this issue if necessary.
231
Operating Guide OG201702
100
FANFARE GIFT CARD SERVICES
Companies that elect to use the Fanfare Gift Card Services will have access to the Fanfare Services and Fanfare
Platform made available by Servicer for Company’s deployment and maintenance of its Fanfare Gift Card
Program.
PROCESSING FANFARE GIFT CARD TRANSACTIONS
In connection with processing Fanfare Gift Card Transactions, Company must comply with the following
requirements:
Supply Servicer with all information and data required by Servicer to perform services related to
Company’s acceptance of Fanfare Gift Cards, including the location of POS Devices and Customer Data.
Maintain all Transaction Receipts and any other receipts as required by Laws.
Comply with all Laws applicable to the sale, distribution, redemption and escheat of prepaid gift cards and
related balances, specifically including the Prepaid Access Rule (31 CFR Parts 1010 and 1022) and all
other rules promulgated and guidelines published by the Financial Crimes Enforcement Network division
of the United States Department of the Treasury.
Ensure that no fees or expiration dates apply to the Fanfare Gift Cards.
When Company sells a Fanfare Gift Card from its physical location or locations, including sales completed
via electronic commerce, Company is responsible for the collection and settlement of all funds relating to
the sale of the Fanfare Gift Card, including processing costs associated with such purchase (such as any
Credit Card transaction fees or bank service fees, where applicable).
Fanfare Gift Card Processing Services
Electronic processing of Transactions and purchases made by Customers using Fanfare Gift Cards.
Servicer will confirm electronically that the Cardholder presenting the Fanfare Gift Card for the purchase
of goods or services through Company has an active Fanfare Gift Card account on the Fanfare Platform and
that there is sufficient value associated with the Fanfare Gift Card to allow the Customer to complete the
purchase. Servicer will adjust the Customer’s Fanfare Gift Card account through either a debit or credit, as
applicable, in the amount of any approved Transaction.
Transaction Record Maintenance. Servicer will maintain an accessible electronic record of the
Transactions conducted using a Fanfare Gift Card for the lifetime of the card balance and after the balance
on the card has been depleted for a period not less than sixty (60) days.
Downtime. Company will not process Fanfare Gift Card Transactions if the Fanfare Platform or Fanfare
Services is down and not able to verify the validity and available balance on a Fanfare Gift Card. If
Company’s system are unable to communicate electronically with the Fanfare Platform, Company may call
Fanfare Services customer service at 1-800-725-1243 to verify the validity and available balance on a
Fanfare Gift Card. Company will be solely liable for any losses or damages incurred if Company processes
a Fanfare Gift Card Transaction without receipt of such verification.
ELECTRONIC GIFT CARD ARTWORK
Electronic Artwork. If applicable, Company is responsible for submitting electronic artwork to Servicer for
approval, as described in the Graphic Specifications and Procedures manual provided separately by Servicer
(the “Graphic Specifications and Procedures”). Company understands that the card proof cannot be created
without the submission of artwork, if requested or required. Failure to submit artwork or comply with the
232
Operating Guide OG201702
101
Graphic Specifications and Procedures may result in additional fees charged to Company for design work
performed to correct the artwork and will result in the delay of the card production process. Servicer cannot be
held responsible for the quality of cards produced using artwork that does not meet the Graphic Specifications
and Procedures. Digital artwork should be submitted to:
Artwork@elavon.com
OR
Elavon, Inc.
Attn: Boarding - EGC
7300 Chapman Highway
Knoxville, TN 37920
When sending in artwork, please include:
1. Company name and MID
2. Indicate standard or custom card order
3. Name and telephone number of graphic contact should there be any questions or issues with the
artwork submitted
For complete detailed specifications, please send a request for Graphic Specifications and Procedures to
Artwork@elavon.com. In your request please indicate that you want standard card or custom card
specifications.
Proofing and Production Procedure. Proofs for custom card orders are provided electronically and sent to the
e-mail provided. Please print the proof, sign and fax back pursuant to the instructions on the proof. One proof is
included in the card production costs. Each additional proof will be billed at thirty-five dollars ($35) each. All
proofs for standard card orders are provided electronically as an Adobe pdf document. The proof will be sent to
the e-mail address then currently on file with Servicer. If the proof is acceptable, simply reply to the e-mail and
indicate approval. Provide detailed information if changes are required. In some instances you may also receive
a printer’s proof and you will be required to follow the instructions included with the proof. IMPORTANT:
Incorrect graphics WILL delay your order. After you approve the proof, normal production timeframe
for card delivery is 2-3 weeks for standard cards and 6-8 weeks for custom cards.
233
Operating Guide OG201702
102
Chapter
22
Payments Insider and MerchantConnect
Payments Insider
Payments Insider is an online customer portal that provides a Company with a modern, easy to use, and convenient
way to access account information, statements, and payments activity online using any standard web browser.
Payments Insider supports delivery of Settlement, Chargeback, adjustment and additional reporting via an online
tool for viewing and exporting, as well as access to additional customer support. Payments Insider can help
streamline your daily reconciliation of your Transactions, help answer questions about your point-of-sale equipment
and provide an overview of products and services that Servicer can provide to you.
Payments Insider allows you to control multiple users’ access to data, add and delete users, and set users’ level of
access at a single location, group of locations or all locations. Transaction Data is available twenty-four (24) hours
per day, seven (7) days per week, three hundred sixty-five (365) days per year. Settlement data is refreshed multiple
times a day, but data availability it contingent on your scheduled settlement time. Terminal quick reference guides
are available for your reference, as well as tips and best practices to help prevent fraud in your business.
ACCESSING PAYMENTS INSIDER
You can access Payments Insider using any standard web browser, and can also access some areas of Payments
Insider on mobile devices.
Not all customers will be eligible to access Payments Insider. If you are eligible, we will send you a Payments
Insider welcome email to the email address on record as soon as you become eligible. For this reason it is very
important that your email address is accurate in our records. The welcome email will contain all the information and
instructions needed for you to register and create your own account on Payments Insider. Once you self-register and
log into Payments Insider, all features and functionality are immediately available to you.
There are no additional fees to access Payments Insider.
ADDITIONAL INFORMATION AVAILABLE VIA PAYMENTS INSIDER
Payments Insider will provide you with the latest version of the Terms of Service and Operating Guide. Information
is available to help you understand Interchange qualifications and how you can obtain the best Interchange rate for
your Transactions. Also, Payments Insider contains information that will help you mitigate risk, and provides tips
regarding the latest fraud scams that become known to Servicer. Information on compliance and data security is also
available on Payments Insider.
Take a moment to browse the portal to learn all of the features available at Payments Insider.
234
Operating Guide OG201702
103
MerchantConnect
MerchantConnect, an online reporting system, allows a Company to access Transaction Data at any time, from any
standard web browser (e.g., Internet Explorer). MerchantConnect supports delivery of Authorization, Settlement,
Chargeback, Interchange, adjustment/rejection and additional reporting via an online tool for viewing and exporting,
as well as access to additional customer support. MerchantConnect can help streamline your daily reconciliation of
your Transactions, help answer your questions about your point-of-sale equipment and provide an overview of
products and services that Servicer can provide to you.
MERCHANTCONNECT CONNECTION OPTIONS
MerchantConnect Basic: includes a single log-on to access information for a single Company location. You
can view up to 6 months of past statements, Chargeback and retrieval reporting, and can review batch reporting
for up to 30 days of settled Batch activity. In addition, you can access up to 3 years of analytic data (average
ticket, volume and Transaction counts) and have industry comparison capabilities. You can also link to report
sites for our Electronic Gift Card and Electronic Check Service programs. Terminal quick reference guides are
available for your reference, as well as tips and best practices to help prevent fraud in your business.
Transaction Data is available twenty-four (24) hours per day, seven (7) days per week, three hundred sixty-five
(365) days per year. Authorization data is refreshed on an hourly basis. Settlement data is refreshed multiple
times a day, but data availability it contingent on your scheduled settlement time.
MerchantConnect Premium: provides all of the data and information as MerchantConnect Basic, plus users
can consolidate reporting for multiple locations. Enhanced information is available in MerchantConnect
Premium; where users can access up to a year's worth of reporting information and have the ability to view
batches of Transactions grouped by Card type or Batch reference number. Hierarchical reporting allows users
the ability to aggregate data from multiple locations, and users can also export files into Excel or CSV formats
for use with users’ own software systems.
External Partner Access: provides all of the data available with MerchantConnect Premium and adds the
ability to control multiple users’ access to data, add and/or delete users, and set users’ level of access at a single
location, group of locations or all locations. In addition, users can control which reports users have access to in
an easy to use portal.
NOTE: Additional fees may apply for MerchantConnect Premium and External Partner Access.
ACCESSING MERCHANTCONNECT
To access MerchantConnect, you can register at www.merchantconnect.com, where you will be prompted to
create a user ID and password. You must authenticate your account by entering your Merchant Identification
Number and the last four (4) digits of your checking account number at the time of registration. To request
access for MerchantConnect Premium or External Partner Access, simply complete the request form, which can
be found at https://www.merchantconnect.com/forms/MCPUserSetupForm.doc.
ADDITIONAL INFORMATION AVAILABLE VIA MERCHANTCONNECT
MerchantConnect will provide you with the latest version of the Terms of Service and Operating Guide.
Information is available to help you understand Interchange qualifications and how you can obtain the best
Interchange rate for your Transactions. Also, MerchantConnect contains information that will help you mitigate
risk, and provides tips regarding the latest fraud scams that become known to Servicer. Information on
compliance and data security is also available on MerchantConnect.
Take a moment to browse the portal to learn all of the features available.
235
Operating Guide OG201702
104
Chapter
23
Transend Pay Services
This Chapter describes certain services that are available to Companies that have been approved by Servicer to
receive the Transend Pay Services. The Transend Pay Services allow a healthcare provider Company to streamline
its revenue cycle management and provides an efficient and secure way for Company to receive healthcare-related
and benefit payments from Healthcare Payers.
In addition to the requirements set forth in the Agreement and other applicable procedures set forth in the Operating
Guide, Companies that use the Transend Pay Services will adhere to the requirements set forth in this Chapter.
PROVISIONS APPLICABLE TO THE TRANSEND PAY SERVICES
Overview of Transend Pay Services. Company has elected to receive the Transend Pay Services from
Servicer. Company’s receipt of Transend Pay Services is subject to the Agreement, the Operating Guide and the
materials made available to Company by Servicer that relate to the Transend Pay Services, including any quick
reference guides and best practices guides. Company agrees to review and to comply with any materials made
available by Servicer, or by any of Servicer’s vendors or subcontractors, to Company from time to time in
connection with Company’s use of the Transend Pay Services.
Transend Pay Services Website. Servicer, through Servicer’s vendor, will provide Company with access to
the Transend Pay Services Website. Servicer is not responsible for the form, format or content of the Transend
Pay Services Website or any Remittance Data. Company agrees to abide by any terms of use and/or end user
license(s) provided by Servicer or Servicer’s vendor in connection with the Transend Pay Services Website.
Questions regarding Payments made via the Transend Pay Services. Questions regarding payments
received from Healthcare Payers, including remittance advice, identity of the relevant Healthcare Payer and
related questions should be directed to Servicer’s vendor using the procedures outlined in the agreement
between Company and Servicer’s vendor or as otherwise indicated on the Transend Pay Services Website.
Questions regarding the Transend Pay Services provided by Servicer, including funding settlement and
Company reporting, should be directed to Servicer via the general customer service process.
Waiver of Claims. Company expressly acknowledges and agrees that, immediately upon Servicer’s receipt of
funds that are to be processed via the Transend Pay Services in connection with a payment owed to Company
by a Healthcare Payer, Company's claim relating to such payment from the Healthcare Payer will be
236
Operating Guide OG201702
105
extinguished, and Company automatically waives any and all claims against the applicable Healthcare Payer in
connection with such payment.
Fraud Prevention. Company will take reasonable steps to reduce, detect and manage any fraud-related issues
related to Company’s receipt of the Transend Pay Services and Company’s access to the Transend Pay Services
Website. Company will appoint a representative available to Servicer or its vendors or subcontractors to
promptly respond to any fraud-related matters.
Warranties and Limitation of Liability. Company acknowledges that Servicer will engage third party service
providers to assist with the provision of the Transend Pay Services, including, but not limited to, the provision
of the Transend Pay Services Website. Company acknowledges and agrees that Company may be required to
enter into a user agreement with, or agree to be bound by certain terms and conditions provided by, Servicer’s
vendor in order for Company to access the Remittance Data.
Termination of Transend Pay Services. Servicer may terminate the Transend Pay Services at any time, in
Servicer’s sole discretion, upon notice to Company.
Participation of Healthcare Payers. Participating Healthcare Payers may change from time to time.
Participation by a Healthcare Payer in the Transend Pay Services is at the discretion of the individual
Healthcare Payer, and Servicer is not responsible for the participation (or lack thereof) of any Healthcare Payer
in the Transend Pay Services.
Protected Health Information. No Protected Health Information (as such term is defined in HIPAA) will be
provided to, or transmitted by, Servicer in connection with the Transend Pay Services. Company acknowledges
and agrees that Company will not deem Servicer to be a Business Associate and that Servicer will not be
required to enter into a Business Associate Agreement in connection with the provision of the Transend Pay
Services.
Disclosure of Information. Notwithstanding any other provisions in the Agreement, Servicer may disclose
information related to Company’s receipt of the Transend Pay Services, including Transaction Data, to third
parties to the extent necessary to allow Servicer to provide such services to Company.
237
Operating Guide OG201702
106
Chapter
24
Payment Navigator Services
This Chapter describes the Payment Navigator Services available to Companies. The “Payment Navigator Services”
include Payment Navigator, Healthcare Payment Processing Services and, if selected, Healthcare Administration
Services, all as described in this Chapter.
In addition to the requirements set forth in the Agreement and other applicable procedures set forth elsewhere in the
Operating Guide, Companies that use the Payment Navigator Services will adhere to the requirements set forth in
this Chapter.
PROVISIONS APPLICABLE TO THE PAYMENT NAVIGATOR SERVICES
Definitions.
“Healthcare Administration Services” means (as selected by Company):
the eligibility services (insurance eligibility/benefit inquiries for patient health plan status, deductible,
co-pay information);
patient payment estimates (estimate of patient responsibility based on planned healthcare services);
patient statements (production and fulfillment of patient billing statements); and
electronic bill presentment services (online presentment of patient bills/statements).
“Healthcare Payment Processing Services” means the acceptance and processing of payment by cash, check,
Electronic Check Service, Credit Card, or Debit Card, acceptance of scheduled payments from checking or
savings accounts, Credit Cards, or Debit Cards; the maintenance of a patient portal for online payment; posting
of payments to patient accounts; and related customer support.
“Payment Navigator” means a hosted web based patient payment application that enables transactions at the
point-of-care including a patient payment portal for online payments, streamlines back office collections, and
automates posting of patient accounts.
Business Associate Services. Company is a covered entity as defined in 45 C.F.R. § 160.103 and the regulations
codified at 45 C.F.R. Parts 160 and 164 (“HIPAA Privacy Rule”) promulgated under Subtitle F of Title II of
HIPAA. In connection with its performance of services other than certain Payment Navigator Services under the
Agreement, Servicer is processing customer card transactions, not performing a HIPAA-covered function on behalf
of Company, and is not functioning as a business associate even if Servicer has access to “individually identifiable
health information” or “protected health information” as defined in HIPAA. The Healthcare Administration Services
are, and some other Payment Navigator Services such as customer support may be, considered business associate
services as defined in HIPAA. With respect to any business associate services, the business associate agreement
(“BAA”) agreed upon by the parties will apply. Company agrees that the BAA applies only to those Payment
Navigator Services provided by Servicer that are business associate services, and not any Healthcare Payment
Processing Services or other financial services provided by Servicer under the Agreement.
238
Operating Guide OG201702
107
1. Payment Navigator License Grant. Servicer grants to Company a nonexclusive, nontransferable license
(without a right of sublicense) to access and use, as applicable, the Payment Navigator application services and
documentation exclusively for Company’s internal business use to receive the Payment Navigator Services.
Company acknowledges and agrees that it has no right in or license grant to any source code contained in or
related to Payment Navigator pursuant to this Chapter.
2. Payment Navigator Application Services Restrictions. Company will not, and will ensure that its employees,
agents, contractors, and vendors do not:
a. Copy (other than maintaining one backup or archival copy for Company’s internal business use only), re-
sell, republish, download, frame or transmit in any form or by any means Payment Navigator, or any part
thereof;
b. Rent, lease, subcontract, operate or otherwise grant access to, or use for the benefit of, any third party,
Payment Navigator;
c. Decompile, disassemble, reverse engineer or translate Payment Navigator;
d. Change, modify, alter or make derivative works of Payment Navigator;
e. Without Servicer’s prior written consent, grant any third party access to the computers, hardware, system or
equipment on which Payment Navigator is accessible, provided, however, that only written notice (not
consent) will be required with respect to billing services organizations acting as Company’s agent for the
collection of patient accounts;
f. Attempt to interfere with or disrupt Payment Navigator or attempt to gain access to any other services,
hardware, or networks owned, maintained or operated by Servicer or its suppliers;
g. Disclose any passwords or other security or authentication device with respect to Payment Navigator to any
person other than the person to whom it was issued;
h. Remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on
Payment Navigator;
i. Directly or indirectly, ship, export or re-export Payment Navigator;
j. Directly or indirectly resell or re-offer Payment Navigator; or
k. Act as a gateway through which a third party may gain access to the Payment Navigator Services.
3. Payment Navigator Implementation. Company will, at its own expense, pay for any preparation of its
facilities necessary for it to access and use Payment Navigator in connection with this Chapter.
4. Use of Payment Navigator by Third Parties. Company may allow one or more third parties to access and use
Payment Navigator, but only for Company’s benefit and in connection with Company’s internal business
operations and activities, including access to and use of Payment Navigator from backup equipment at a secure
off-site backup location and for testing purposes, subject to the restrictions of this Chapter and provided such
third parties have agreed to be bound by the licensing terms and restrictions of this Chapter.
5. Upgrades. Servicer will make available to Company any updates, upgrades or modifications to Payment
Navigator that Servicer generally makes available to its other customers, and each such update, upgrade or
modification will be deemed to be part of Payment Navigator and will be governed by the terms of this Chapter.
6. Termination of Payment Navigator Services. Upon Termination of the Payment Navigator Services,
Company’s license to access and use Payment Navigator will terminate.
239
Operating Guide OG201702
108
7. Settlement of Transactions. Transactions settled via the Healthcare Payment Processing Services provided
under this Chapter are “net” settled as that term is described in Chapter 2 of the Operating Guide.
HEALTHCARE ADMINISTRATION SERVICES
The terms of this Section apply to Company’s use of any of Healthcare Administration Services that Company has
elected to receive.
1. Termination. The Healthcare Administration Services may be terminated by Servicer upon 30 calendar days’
prior written notice if Servicer no longer has the rights to license Payment Navigator.
2. Expenses and Reimbursement for Third Party Transaction Charges. Company will, at its own expense,
pay for any preparation of its facilities necessary for the implementation of, access to and use of the Healthcare
Administration Services. Company will reimburse Servicer for all third-party Transaction charges incurred by
Servicer in connection with healthcare claim data and other Transaction Data and Transactions submitted by
Company in connection with the Healthcare Administration Services (the “Third Party Costs”). For the
avoidance of doubt, the parties intend that Company will reimburse Servicer for any Third Party Costs imposed
on, or incurred by, Servicer in processing Transactions through third parties where such third parties will charge
Servicer a fee to process Company’s Transactions, such as Transactions destined for the following: Medicare,
Medicaid and other government or government-related payers; most Blue Cross Blue Shield plans; some non-
participating commercial plans; and all Transaction submissions that cannot be completed electronically and
must be submitted and processed and otherwise “dropped” to paper. Please note that the fees for Healthcare
Administration Services will include all known Third Party Costs as of the effective date of Company’s use of
the Healthcare Administration Services.
3. Pass Through for any Future Taxes/Levies. Any applicable sales tax, use tax, duty, tariffs, levies or other
governmental charge arising from the sales, export, import or use of Payment Navigator in connection with the
Healthcare Administration Services (other than taxes levied on the income of Servicer) and any related interest
and penalties resulting from any payments made under this Section will be the responsibility of Company and
will be paid by Company in the ordinary course and on a timely basis.
4. Business Associate Agreement. In connection with its performance of the Healthcare Administration Services,
Servicer will have access to “protected health information” as defined in HIPAA. Accordingly, the terms of the
BAA agreed to by the parties apply to Company’s use of the Healthcare Administration Services.
5. Terms of Payment. Servicer will invoice Company on a monthly basis for the Healthcare Administration
Services. Company will pay the amounts indicated on such invoice no later than 30 days after the date of such
invoice.
240
Operating Guide OG201702
109
Chapter
25
Gateway Services
This Chapter describes the Gateway Services available to Companies. In addition to the requirements set forth in the
Agreement and other applicable procedures set forth elsewhere in the Operating Guide, Companies that use the
Gateway Services will adhere to the requirements set forth in this Chapter.
DESCRIPTION OF THE GATEWAY SERVICES AND FUNCTIONALITY
The following Services are the “Gateway Services:”
1. General.
a. The Gateway Services will support Payment Device authorization data and facilitate the transmission
of authorization and settlement information related to Transactions to and from various Origination
Points (e.g., POS Devices or other integrations) used by Company. A list of Payment Devices and
Transaction types supported by the Gateway Services is available from Servicer upon request.
Company must obtain and maintain certification from Servicer, as set forth in this Chapter, with
respect to each supported Payment Device that Company wants to accept.
b. The Gateway Services include a browser-based user interface operated by Servicer and located at the
URL designated by Servicer (the “Service Web Site”), that provides Company with the functionality
for batch management, settlement balancing, and research and reporting of Transactions. System
reporting will be available to all Authorized Users via secure password and log-on access. The Service
Web Site application features and services available to Company vary depending on the Gateway
Services used by Company.
c. The Gateway Services will submit Transactions received from an Origination Point in accordance with
this Chapter for authorization to the Destination Point designated by Company, and will return to the
Origination Point the authorization response message received from such Destination Point.
2. Settlement Functions.
a. The Gateway Services will facilitate the following settlement functions in connection with
Transactions:
i. Upon Servicer’s receipt through the Gateway Services of a settlement file from Company, the
Gateway Services will initiate the transfer of the settlement file to the designated Destination
Point(s) for Company’s Transactions. Company understands that Servicer receives the settlement
file from Company as-is for transmission to the designated Destination Point(s) and Company
hereby agrees that Servicer will not be responsible for the content or accuracy of the settlement
file Company provides except that Servicer will accurately communicate the settlement file to the
Destination Point(s) as received from Company. In no event will Servicer be responsible for the
content or accuracy of Transactions received from Company, and Servicer will not be responsible
for the actions or inactions of the designated Destination Point(s) regarding processing the
settlement file or any Transactions.
241
Operating Guide OG201702
110
ii. Within one business day of receiving written notice from Company of a Transaction settlement
discrepancy (which notice must include details of the asserted discrepancy), Servicer will initiate
an investigation, make a preliminary assessment of the situation and recommend a plan for
resolution to Company to resolve the discrepancy.
b. Company is responsible for reconciling settlement on a daily basis to ensure proper transmission and
deposit of funds. If Company discovers a discrepancy in Transaction settlement batch amounts,
interchange rates, late fees or any other element during Company’s daily reconciliation process,
Company must notify Servicer in writing (via email to gatewaysupport@Servicer.com) and provide
supporting detail within two business days of the expected funding of the affected settlement file.
Servicer will not be responsible for any damages, costs, claims, fees, fines or penalties suffered by
Company, even if resulting from errors caused by the Gateway Services, if Company does not satisfy
the obligations contained in this Chapter.
GATEWAY SERVICES GENERAL TERMS AND CONDITIONS
The following terms and conditions apply to the Gateway Services:
1. Gateway Services and Hosted System.
a. Company Access to and Use of Gateway Services and Hosted System. Servicer grants Company
the right to access and use the Hosted System and Gateway Services as provided in this Chapter.
Specifically, subject to the terms, conditions and limitations set forth in this Chapter, Servicer grants
Company a limited, revocable, non-exclusive, non-assignable, non-transferable right in the Territory
during the term to
i. use the Gateway Services to exchange information with the Hosted System, and
ii. access and use the Service Web Site solely for Company’s own internal business purposes in
accordance with the terms and conditions of this Chapter.
All such access and use of the Gateway Services and the Hosted System will be from systems and
facilities located within the Territory.
b. Servicer Certification. In order to provide Gateway Services with respect to a certain Destination
Point, Servicer must be certified with that Destination Point for the applicable Gateway Services and
Transactions requested by Company. Company acknowledges that
i. all Gateway Services may not be available for all Destination Points, and
ii. Servicer may not be certified with, or remain certified with, each Destination Point in order to
provide the Gateway Services in connection with or to submit Transactions to that Destination
Point.
Where Servicer is the Destination Point, Servicer will remain certified to provide the Gateway Services
and to submit Transactions to itself as the Destination Point.
c. Updates. Servicer may provide Updates to the Gateway Services, the Hosted System and applicable
Servicer materials from time to time. Any such Update will be provided to Company at no additional
cost, provided that such Update is provided to other Servicer merchants generally at no additional cost.
d. Hosting Facilities. As further described herein, Servicer will:
i. host the Gateway Services and Gateway Data at a facility operated by or on behalf of Servicer;
242
Operating Guide OG201702
111
ii. maintain the operation, communications infrastructure, and security of such facility in accordance
with this Chapter; and
iii. provide access to and use of the Gateway Services and Gateway Data by Company under the terms
of this Chapter.
e. Settlement Funds. Servicer has no responsibility for Company’s receipt of settlement funds in connection
with any Transaction pursuant to this Chapter, whether or not the Transaction or other data in connection
with such Transaction was transmitted through the Gateway Services. It is Company responsibility to
reconcile funds received in settlement of Transactions against actual Transaction activity, including any
Transaction Receipts transmitted using the Gateway Services. Further, Servicer has no responsibility under
this Chapter for the characterization or classification of any Transaction by any Transaction Processor or
Payment Services Entity for interchange or other fee purposes.
f. Monitoring. Company acknowledges and agrees that the Gateway Services may allow Servicer to
monitor access to the Gateway Services and Hosted System and to prohibit any access or use of data or
information within the Gateway Services and Hosted System that Servicer reasonably believes is
unauthorized, may violate Law or Payment Network Regulations or that may pose an unacceptable risk
of material harm to Servicer, other Servicer Companies or the Hosted System. Servicer has no
obligation to detect or prevent, and will not be liable for failing to detect or prevent, any unauthorized
access to or use of the Gateway Services using any password or user ID assigned to or by Company.
g. Company Location Set-up and Boarding. Company will cooperate with Servicer in the Company
Boarding and the Company Validation Process and provide to Servicer all specifications, information
and data required by Servicer in the process of assimilating the information and data necessary to
confirm that the Hosted System and each Company Location and Origination Point are configured to
make use of the applicable Services and to process Transactions through the Hosted System. Servicer
is entitled to rely on the information provided by Company in connection with Servicer’s set-up and
boarding of a Company Location and Origination Point in the Hosted System and in Servicer’s
performance of the Gateway Services, including identification and set-up of Destination Points,
Payment Services Entities, Company ID, Company category code, and any other information that may
impact the Gateway Services or the processing of Transactions by Servicer or any Payment Services
Entity. Company will notify Servicer of any changes to any Company Location information, including,
without limitation, any Company ID, in writing at least ten (10) days prior to the effective date of such
changes and will identify in the notice the date as of which Servicer should implement the change
within the Hosted System. Servicer will use commercially reasonable efforts to implement any such
changes in accordance with Company’s reasonable instructions. In no event will Servicer be liable for
any errors in the handling of Gateway Data, the processing of Transactions or in the performance of
the Gateway Services that are attributable to (i) inaccurate or incomplete information or data provided
by Company or (ii) Servicer’s reliance upon Company’s instructions with respect to Company
Boarding.
h. Demand Deposit Account. Unless otherwise indicated in the Agreement, Servicer may debit any fees
Company owes to Servicer via ACH or similar direct transfer from Company’s DDA within 30 days of
the occurrence of the Transaction or other event that caused such fees to be payable to Servicer, and
Servicer will submit a statement showing the amounts owed and debited within 30 days of debiting any
DDA. If invoicing is indicated in a schedule or addendum to the Agreement, instead of direct debiting
of DDAs when fees are owed, Servicer will submit to Company an invoice for such fees owed by
Company in connection with the Agreement on a monthly basis. Company will pay amounts reflected
in such invoices within the time period set forth in the applicable schedule or the invoice.
i. Conflict of Provisions. The provisions of this Chapter will govern and prevail as to any purchase
orders, statements of work or order forms signed in connection with this Chapter regardless of when
signed.
2. Company Resources.
243
Operating Guide OG201702
112
a. Access to Gateway Services and Connectivity. Company is responsible for implementing and
maintaining Company’s access to the Gateway Services and Connectivity, including with respect to all
Company Connectivity Software, in accordance with Servicer’s specifications and requirements.
Company is responsible for the physical and technical security and safeguards for Company Resources
and Connectivity. If Company is using a third party provider to host any of its equipment, resources or
software necessary to access or interface with the Hosted System or Connectivity, or if Company will
access the Gateway Services or transmit data to the Hosted System or the Connectivity through a third
party hosting provider, Company will be responsible for compliance by that third party hosting
provider with the terms and conditions of this Chapter and for the acts and omissions of that third party
hosting provider.
b. Gateway Data; Retention and Delivery.
i. Servicer will not be liable for Company’s use of Company’s or a third party’s telecommunications
services and related networks, including failure of Connectivity or any erroneous transmission,
corruption or loss of data, or inability to access the Gateway Services, the Hosted System, or
Connectivity as a result of the failure of Company’s or a third party’s telecommunications systems,
equipment, resources, or software. Servicer will not be responsible for the reconstruction of any
information or data lost in transmission to or from the Hosted System due to any malfunction of
Company’s or Company’s third-party service provider’s systems. Company acknowledges that the
ability of the Gateway Services to convert Gateway Data into formats that can be used by the
Gateway Services, other Servicer service offerings, any Destination Point or any other Payment
Services Entity is based on the integrity of the Gateway Data in its systems, and Servicer is not
responsible for ensuring or verifying the accuracy of the content or format of any Gateway Data
received by it.
ii. COMPANY ACKNOWLEDGES AND AGREES THAT THE GATEWAY SERVICES RELY
ON THE DATA AND DIRECTIONS PROVIDED BY COMPANY AND ITS AUTHORIZED
USERS. SERVICER DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS OR
ADEQUACY OF ANY DATA OR OTHER INFORMATION PROVIDED OR MADE
AVAILABLE BY COMPANY OR ITS AUTHORIZED USERS, AND SERVICER WILL NOT
BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR
NONCONFORMITY IN DATA OR RESULTS OBTAINED THROUGH COMPANY’S USE OF
THE SOFTWARE OR THE GATEWAY SERVICES, EXCEPT TO THE EXTENT CAUSED BY
SERVICER’S BREACH OF THIS CHAPTER.
iii. Servicer may rely on instructions and approvals submitted by Company regarding access to and
use of Gateway Data. Servicer will store and retain for 24 months Gateway Data, including
Cardholder Data, received by Servicer in connection with Company’s use of the Gateway Services.
Company may view and retain certain Gateway Data stored by Servicer in accordance with the
functionality of the applicable Gateway Services and the terms and conditions of this Chapter. The
Gateway Services enable Company (and its Authorized Users) to view and transmit certain
Gateway Data via the Service Web Site. If Company wants to access or receive copies of Gateway
Data that is not accessible or downloadable via the Service Web Site, Company may request that
Servicer provide such Gateway Data and Servicer will work with Company to provide such
Gateway Data on mutually agreed upon terms, but Servicer will provide access to clear-text
Cardholder Data only upon Company’s execution of a completed clear card request form, which is
available from Servicer upon request. Following the expiration of the term or the termination of
this Chapter, if Company wants to access or receive copies of Gateway Data stored by Servicer,
Company will be required to (a) enter into a data access agreement to be separately executed by
the parties and (b) pay any fees imposed by Servicer in connection with such access.
iv. Subject to Servicer’s obligations under this Chapter, Servicer will not be responsible for any
Gateway Data that Company accesses or downloads from the Hosted System. Company will be
responsible for maintaining “backups” of information and data (e.g., Transaction Receipts or
244
Operating Guide OG201702
113
detailed reporting) as Company deems necessary in order to permit Company to reconstruct any
information or data lost due to any malfunction of Company’s or Servicer’s systems, including the
Gateway Services, the Hosted System or Connectivity.
v. The Gateway Services or the Hosted System may permit Authorized Users to send and receive
Gateway Data to and from third parties in connection with the viewing and transmission of
Gateway Data pursuant to this Chapter. Servicer does not regulate or track the viewing, transmittal
or receipt of any data to or by such third parties and will not be liable or responsible for
1. the viewing or use of Gateway Data by a third party who has accessed or received such data
(a) from Company or any Authorized User, or (b) using any user ID assigned to Company; or
2. Any transmission of Gateway Data outside of the Hosted System by Company, an Authorized
User or any third party using any user ID assigned to Company or any Authorized User.
By transmitting any data to any third party or providing any third party with access to data,
Company warrants that it has the right and authority to transmit or provide access to that data to
each such third party.
3. Confidential Information. Irrespective of the confidentiality obligations set forth in the Agreement,
Servicer will not be responsible for the confidentiality obligations of, or the maintenance of confidentiality
of any information by, any Payment Services Entity (other than Servicer) or any other third party to whom
Servicer may transmit information at the direction of Customer or as part of performing the Gateway
Services.
4. Effect of Termination or Expiration. If the Gateway Services terminate or expire, all permissions granted
to Company to use the Gateway Services will immediately cease, and Servicer may disable Connectivity
and all access by Company and Authorized Users to the Gateway Services, any Service Web Site(s) and the
Hosted System, including all user IDs and passwords. Upon Company’s request, subject to Law and
Payment Network Regulations, Servicer will forward all Gateway Data in Servicer’s possession (except
data contained in Servicer’s backup files or required to be maintained under Law or otherwise permitted to
be retained by Servicer under this Chapter) in the then-current format maintained by Servicer. Company
will promptly pay Servicer all fees due to Servicer up to the effective date of termination or expiration. If
Company continues accessing the Hosted System or using the Gateway Services following the expiration
or the termination of this Chapter, Company will be subject to all of its duties and obligations under this
Chapter consistent with such access or use, including Company’s obligation to comply with Law and
Payment Network Regulations and pay the fees and other amounts due to Servicer for such access and use,
until Servicer or Company terminates such access and use.
CONNECTIVITY EQUIPMENT LOCATION TERMS
1. Company Obligations
a. Installation. Company hereby grants Servicer (or its designated subcontractor) the right to implement,
configure, operate, and maintain the Connectivity Equipment at the Designated Space. Company will
install, or cause to be installed, the Connectivity Equipment in the Designated Space after obtaining the
appropriate instructions from Servicer for installation. The Implementation Date will be mutually
agreed upon by the parties. Company acknowledges that the scheduled date for installation of the
Connectivity Equipment and Implementation Date are of the essence and failure to meet the
Implementation Date mutually agreed upon may cause delay in the provision of Connectivity by
Servicer to Company.
b. Access. Company will provide, or cause to be provided to, Servicer (or its designated subcontractor)
access to the Designated Space on a twenty-four (24) hour, seven (7) day a week, three-hundred-sixty-
five (365) day a year basis in order to perform the Services, including, without limitation, access to
245
Operating Guide OG201702
114
replace and remove Connectivity Equipment and to provide Maintenance Services. Notwithstanding
the foregoing, Company acknowledges and agrees that implementation, set-up and initial
configuration, support and maintenance for the Connectivity Equipment may be performed by Servicer
(or its designated subcontractor) by remote access to the Connectivity Equipment unless otherwise
agreed by the parties in writing. Onsite installation and configuration by Servicer of the Connectivity
Equipment at the Designated Space may result in additional installation and services fees.
c. Company Cooperation. Company will provide to Servicer such information as Servicer may
reasonably require in order to enable Servicer (or its designated subcontractor) to instruct Company (or
its third party hosting provider) in the installation of the Connectivity Equipment, and to enable
Servicer to operate and maintain the Connectivity Equipment at the Designated Space, including,
without limitation, information on size limitations, power consumption levels, infrastructure support
requirements and similar requirements. In addition to installation of the Connectivity Equipment by
Company (or its third party hosting provider) at Servicer’s instruction, at the request of Servicer,
Company (or its third party hosting provider) will assist and cooperate with Servicer in performing
light duties or correcting minor problems such as circuit problems and/or outages, which may include:
i. Rebooting of equipment.
ii. Pressing of reset or other readily accessible buttons or switches.
iii. Reconfiguration of non-restricted cables with push-on type connectors.
iv. Working cooperatively with Servicer and/or Servicer’s designated subcontractors to locate and
correct circuit problems.
d. Relocation of Connectivity Equipment. Company (or its third party hosting provider) will not
arbitrarily or capriciously require Servicer to relocate the Connectivity Equipment; however, upon at
least one hundred twenty (120) days’ written notice or in the event of any emergency, Company may
require Servicer to relocate Connectivity Equipment; provided however, the site of relocation will
afford comparable space and environmental conditions for the Connectivity Equipment and
comparable accessibility to the Connectivity Equipment. In the event that Company requires Servicer
to relocate Connectivity Equipment, all reasonable costs incurred by Servicer associated with such
relocation, and all costs incurred by Company, will be borne by Company. Company will notify
Servicer in advance in writing of any changes to the infrastructure, power, cabling or electrical
requirements, network connectivity or similar requirements of the Designated Space that may affect
the maintenance or operation of the Connectivity Equipment.
2. Designated Space. Company (or its designated third party hosting provider, as applicable) will provide and
maintain the Designated Space in a manner suited for proper storage and operation of the Connectivity
Equipment with appropriate space, power and environmental controls to protect and preserve the
Connectivity Equipment and in compliance with applicable city ordinances, building codes, and laws,
including, without limitation: (i) A/C power to the outbound port on the Connectivity Equipment serving
power distribution unit (PDU) 100% of the time; and (ii) HVAC (Heating, Ventilation and Air
Conditioning) with industry standard target ambient room temperature and fire suppression measures in the
area where the Connectivity Equipment is located. Company will further adhere to and enforce, and cause
to be enforced at the Designated Space, those physical and logical security and access standards and
monitoring practices regarding access to the Designated Space and Connectivity Equipment that Company
applies to its own equipment and data centers, and no less than commercially reasonable industry standards,
in order to maximize the security of the Designated Space and Connectivity Equipment.
3. Connectivity Services. Company will permit Servicer and each applicable telecommunications carrier to
install circuits necessary to enable the operation of the Connectivity Equipment to receive data
transmissions from Company and to transmit data in order to perform the Services. Company will
cooperate with Servicer to notify Company’s telecommunications carriers when Servicer wishes to
terminate or modify circuits associated with the Connectivity Equipment and Connectivity. As between the
parties, Company is responsible for providing all telecommunications and network connectivity, including,
246
Operating Guide OG201702
115
without limitation, internet, local and long-distance telecommunications lines and any and all necessary
cross-connects between the Company’s systems and equipment and the Connectivity Equipment.
4. Connectivity Equipment. Company acknowledges and agrees that Company will have no right, title or
interest (ownership or otherwise) in any of the Connectivity Equipment and will have no right to grant a
security interest in or otherwise encumber any of the Connectivity Equipment or to cause or permit any
Connectivity Equipment to become subject to any security interest, lien or encumbrance. The Connectivity
Equipment will not be deemed or become fixtures of the Designated Space. During the Term, Servicer (or
its designated subcontractor) will provide Maintenance Services for the Connectivity Equipment. Company
will promptly notify Servicer at any time that Company becomes aware that any of the Connectivity
Equipment is not operational or has been damaged or destroyed. Notwithstanding anything else to the
contrary in this Chapter or the Agreement, Company will be liable and responsible for any loss, damage or
destruction to the Connectivity Equipment or for repair and replacement costs relating to the Connectivity
Equipment caused by the negligence or acts or omissions of Company, its employees, representatives or
agents (including, without limitation, any third party hosting provider). Company will not remove, alter,
deface or obscure any legends, notices, identification or identifications of ownership or any disclaimer of
warranty or security or safety notices provided on or with the Connectivity Equipment. This is a services
agreement and is not intended to and will not constitute a lease of any real or personal property. In
particular, Servicer acknowledges and agrees that Servicer has not been granted any real property interest
in the Designated Space, and Servicer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulation or ordinances.
247
Operating Guide OG201702
116
Chapter
26
Biller Direct Services
This Chapter describes the Biller Direct Services available to Companies. In addition to the requirements in the
Agreement and other applicable procedures included elsewhere in the Operating Guide, Companies that select the
Biller Direct Services will adhere to the requirements in this Chapter, the applicable Biller Direct Services
Enrollment Form, and the applicable portions of the ECS MOG.
GENERAL PROVISIONS APPLICABLE TO THE BILLER DIRECT SERVICES
Overview of the Biller Direct Services. The “Biller Direct Services” are the electronic bill presentment and
payment platform offered by Servicer pursuant to this Chapter that allows a Company to accept Payment
Devices in an online, telephone or Integrated Point of Sale environment in connection with the Company’s sale
of goods or services or its receipt of bill payments.
1. Transactions.
a. Company Compliance. Company’s obligation to comply with Laws includes the obligation to comply
with all requirements under the Electronic Signatures in Global and National Commerce Act in
connection with the Biller Direct Services. Other than for Integrated Point of Sale Biller Direct
Services, Company will not receive Transaction Information and therefore does not need to comply
with the requirements governing Company receipt and handling of payment information from
Customers when using Biller Direct Services.
b. Transaction Requirements. Before Servicer processes a Transaction on Company’s behalf, the
Customer must affirmatively agree to engage in the Transaction through the Biller Direct Services web
site, via the telephone, or in an Integrated Point of Sale environment.
i. Customer Authentication. Company will provide to Servicer such Customer information as
Servicer reasonably requests to perform their obligations under the Agreement and this Chapter.
(1) If Company has selected Secure Handoff Customer authentication for the Biller Direct
Services, Company will authenticate the identity of each Customer prior to allowing the
Customer to access the Biller Direct Services to initiate a payment to Company. Servicer
may rely on such authentication and the accuracy of the Customer information Company
provides. Servicer will not be responsible for authenticating the Customer or for any
Transaction (whether or not the result of fraud or other unauthorized access) processed with
respect to a Customer that accesses the Biller Direct Services after a Company Secure
Handoff.
(2) If Company has selected Bill Load File Customer authentication for the Biller Direct
Services, Servicer will authenticate the identity of each Customer on Company’s behalf
based solely on the Customer information Company provides and using the authentication
criteria as Company directs. Servicer may rely on the accuracy of the Customer information
248
Operating Guide OG201702
117
provided by Company, and Servicer will only be responsible for authenticating each
Customer as directed by Company in writing.
(3) Company will be responsible for, and will indemnify Servicer against, any losses that may
result from: (a) errors in the authentication of a Customer or in the processing of
Transactions that result from incorrect Customer information provided to Servicer; and (b)
inaccurate or incomplete authentication of a Customer that does not result from Servicer’s
errors or omissions. Company grants Servicer and its designated agents access to and use of
Customer information and such other data as is necessary for Servicer to perform its
obligations under this Chapter. Company represents that Company’s provision of such
Customer information to Servicer will not breach any agreement to which Company is a
party or violate Laws.
ii. Transaction Risk. Servicer will attempt to collect from each Customer the payment-related
information necessary for Servicer to process a payment Transaction from the Customer to
Company in connection with the Biller Direct Services. Servicer will not be responsible for
incomplete or inaccurate payment information that a Customer may provide in connection with the
Biller Direct Services. Company acknowledges that additional Transaction verification and fraud
prevention data elements and processes may be available through a particular Payment Network,
including address verification, to reduce Transaction risk, and that Servicer will only be
responsible for implementing any such Transaction risk controls that Company specifically
requests in writing. The use of such Transaction risk controls does not constitute a guarantee of
payment or prevent a Transaction from being disputed or subject to Chargeback. Regardless of
any additional Transaction risk mitigation options Company elects, Company will remain
responsible for monitoring Customer account activity for suspicious or fraudulent activity, as more
fully described in Section 3 of the General Provisions of this Chapter.
c. Transaction Controls. Company will notify Servicer of any material change or anticipated material
change in daily dollar activity or type of Transaction processing in connection with the Biller Direct
Services, and Company will obtain Servicer’s consent to any such change. Servicer will not be
responsible for any losses or expenses incurred by Servicer or Company arising out of any material
change or anticipated material change in Transaction activity that Company does not promptly report.
d. Processing Limits. Servicer may impose a limit on the aggregate dollar amount or individual dollar
amount of Transactions that it will process for Company and may change the limit from time to time
without prior notice to Company. If Company exceeds the established limit, Servicer may suspend the
processing of Transactions in excess of the limit or may process Transactions in excess of the limit but
hold the excess funds in a separate account or Reserve Account.
e. Recurring Transactions. For recurring Transactions (e.g., recurring or preauthorized payment of
insurance premiums or subscriptions), the Customer must consent to the initiation of the recurring
charges using the Customer’s designated Payment Device. Servicer will not process recurring
Transactions after Servicer receives (i) a cancellation notice from the Customer provided through the
Biller Direct Services interface; (ii) a notice from Company through the Biller Direct Services interface
that authority to accept recurring Transactions has been revoked; or (iii) a response from the issuer of a
Payment Device that the Payment Device is not to be honored. If a Customer advises Company that the
Customer wishes to revoke its recurring payments authorization, Company will immediately notify
Servicer by cancelling the recurring payment instruction through the Biller Direct Services interface.
Any notices that are not fully processed through the Biller Direct Services interface prior to 5:00 p.m.
Eastern time one business day before the day a Transaction is scheduled to be processed will not affect
that Transaction but will be effective for subsequent Transactions.
f. Retrieval Requests and Chargebacks. Company is responsible for all Retrieval Requests and
Chargebacks under the Payment Network Regulations in connection with Transactions processed using
the Biller Direct Services. Servicer will forward to Company any received Retrieval Requests or
documentation related to a Chargeback from a Credit Card Association, an ECS Association or an EFT
249
Operating Guide OG201702
118
Network. Company is responsible for appropriately responding to each Retrieval Request or
Chargeback, including by retrieving a copy of the relevant Transaction Receipt from the Biller Direct
Services interface. Company also will cooperate with Servicer to comply with the Payment Network
Regulations regarding Retrieval Requests and Chargebacks.
2. Biller Direct Services; Fees; Other Amounts Owed; Taxes.
a. Implementation Fees. Company acknowledges that Servicer will incur significant costs integrating
Company’s billing process with the Biller Direct Services. As a result, Company will pay to Servicer
the implementation fee set forth on the Biller Direct Services Enrollment Form upon the effectiveness
of this Chapter. Payment of the implementation fee is not contingent upon use of the Biller Direct
Services, and Company will be responsible for payment of the full implementation fee regardless of
whether Company discontinues implementation or use of the Biller Direct Services.
b. Billing. Company acknowledges that the minimum annual Transaction fees it pays to Servicer for
Transactions processed using the Biller Direct Services will be at least equal to the “Minimum Annual
Fees” amount identified on the Biller Direct Services Enrollment Form. The Minimum Annual Fees
requirement becomes effective on the first day of the first month that begins following the earlier of (i)
the date Servicer processes the first Transaction for Company using the Biller Direct Services, or (ii)
ninety (90) days from the effectiveness of this Chapter. For any partial period of less than a full
calendar year, the actual amount of fees Company paid to Servicer for Transactions processed using
the Biller Direct Services will be annualized to determine if Company has satisfied this obligation. At
the end of each year (the first year beginning on the effective date of the Minimum Annual Fees
requirement), Servicer may notify Company if the actual Transaction fees Company paid in respect of
the Biller Direct Services are less than the Minimum Annual Fees amount. If Company’s actual Biller
Direct Services Transaction processing fees for such period are less than the Minimum Annual Fees,
Company will promptly pay Servicer the difference.
3. Fraud Controls and Responsibility for Fraud. Company acknowledges that Servicer monitors
Transactions systematically using fraud and risk parameters to minimize Servicer’s financial exposure, and
such monitoring may result in a financial benefit for Company. Servicer may suspend processing of
Transactions or decline to process one or more individual Transactions if, based upon fraud detection and
prevention controls or other security or Transaction verification or validation procedures, Servicer
reasonably believes that such Transactions submitted to Servicer are the result of fraud or error. Servicer
may suspend the disbursement of funds related to any Transaction for any reasonable period of time
required to investigate suspicious or unusual Transaction or deposit activity and that Servicer will not be
liable for any losses Company may attribute to a suspension of funds disbursement. Company will be
responsible for all fraudulent Transactions unless such fraud results from Servicer’s failure to authenticate a
purported Customer as required under the Agreement using information provided to Servicer by Company
under Section 1(b) of the General Provisions of this Chapter. Servicer may refer perpetrators of fraudulent
Transactions to law enforcement officials.
4. Suspension of Biller Direct Services. Servicer may suspend Company’s or a Customer’s access to (or
temporarily restrict the use of) the Biller Direct Services if Servicer determines there is a security, credit or
legal risk that may interfere with providing the Biller Direct Services. Servicer may also permanently
terminate a Customer’s access to the Biller Direct Services upon notice to Company if Servicer reasonably
determines the Customer is misusing the Biller Direct Services or is engaged in suspicious or illegal
activity. Servicer may refuse any Transaction where Servicer reasonably believes that the Transaction
involves a material probability of legal, fraud, or credit risk. Company will cooperate in resolving any
claims or errors alleged by a Customer and in investigating any claims of fraud consistent with Laws and
Payment Network Regulations.
250
Operating Guide OG201702
119
PAYMENT CARD SERVICE PROVISIONS
1. Authorization. Servicer will attempt to obtain an Authorization Code before completing a Transaction.
Servicer will only process Transactions that receive a positive authorization. An Authorization Code does
not
a. guarantee Company final payment for a Transaction;
b. guarantee that the Transaction will not be disputed later by the Cardholder as all Transactions are
subject to Chargeback;
c. protect Company in the event of a Chargeback regarding unauthorized Transactions or disputes
involving the quality of goods or services; or
d. waive any provision of the Agreement or otherwise validate a fraudulent Transaction.
2. Credit Transaction Receipt. If Company agrees to grant a Cardholder a refund of a Payment Card
Transaction processed by Servicer, Company will request a Credit Transaction Receipt through the Biller
Direct Services interface and will issue the credit using the Credit Transaction Receipt. Company will not
issue cash or a check as a refund for any previous Transactions processed on a Payment Card. Servicer will
debit the DDA for the total face amount of each Credit Transaction Receipt Servicer processes. Servicer
will not process a Credit Transaction Receipt relating to any Transaction Receipt that Servicer did not
originally process, and Servicer will not process a Credit Transaction Receipt that exceeds the amount of
the original Transaction Receipt.
3. Interchange. Servicer is not responsible for the Interchange category or pricing (including discount rate,
fees and surcharges) applied by the Credit Card Associations, EFT Networks or otherwise owed by
Company with respect to any Transaction processed using the Biller Direct Services, except to the extent
that Company has to pay greater Interchange with respect to a Transaction solely because Servicer fails to
comply with the Transaction processing requirements agreed to between Company and Servicer.
ECS AND ACH PROVISIONS
1. General. A Customer must provide authorization to Servicer before Servicer will initiate an ACH debit to
the Customer’s account, in accordance with the ECS MOG. Servicer will record the Customer’s ACH debit
authorization. Servicer will either retain the original or a duplicate record of the Customer’s authorization
for the period required by the applicable ECS Rules, and will make a copy of such record available to
Company for a fee as indicated on the Biller Direct Services Enrollment Form.
2. Additional Representations. Company represents, with respect to all ECS and ACH Transactions
accepted and processed by Servicer under this Chapter, that
a. for prearranged payment or deposit (PPD) entries or recurring debit entries, the Customer has duly
authorized the debiting of the Customer’s account in writing in accordance with Laws and ECS Rules,
b. the business transaction represents an obligation of the Customer who is initiating the ECS or ACH
Transaction, and
c. the ECS or ACH Transaction is for amounts actually owed by the Customer to Company (including
tax) and does not involve any element of credit
251
Operating Guide OG201702
120
Chapter
27
Safe-T Instant Tokenization™ Services
This Chapter describes Servicer’s card-not-present tokenization solution for back office payment processing and e-
commerce environments (the “Instant Tokenization Services”) available to Companies. In addition to the
requirements set forth in the Agreement and other applicable procedures set forth elsewhere in the Operating Guide,
Companies that use the Instant Tokenization Services will adhere to the requirements set forth in this Chapter.
PROVISIONS APPLICABLE TO INSTANT TOKENIZATION SERVICES
1. Tokenization. To facilitate a pre-authorization tokenization request, Servicer will provide three options for
Company to implement Instant Tokenization into Company’s payment process – (1) a Servicer-generated pop-
up window (for use with Company’s point-of-sale or property management system software application), (2)
iFrame (for use with Company’s point-of-sale or property management system browser-based application), or
(3) Consumer’s browser-based payment form field. By way of the API, Servicer will provide Company with
randomized numerical tokens (each, a “Token”) in substitution for Credit Card and Debit Card account
numbers (each such number, a “Card Account Number”). More specifically, when a Card Account Number is
captured via one of the implementation methods noted above, and transmitted to Servicer, Servicer will:
(i) generate a Token;
(ii) associate the Token with the Card Account Number; and
(iii) send the Token, instead of the Card Account Number, back to Company for inclusion in the
Transaction authorization request.
The Token, rather than the associated Card Account Number, may be submitted by Company to Servicer to
process additional Transactions to the Credit Card or Debit Card associated with such Token across all
Company locations. The Card Account Number associated with each Token generated by Servicer can be
retrieved by Servicer, on Company’s written request, until the date that is three years after the expiration or
termination of the Agreement, provided that the retrieval of Card Account Numbers after the expiration or
termination of the Agreement will be subject to additional terms and conditions and at an additional cost to
Company. Company acknowledges that the Tokens will be formatted in Servicer’s reasonable discretion and
may not be compatible with other Company software and systems.
2. De-Tokenization. Company may request a reversal of the Tokenization process as follows:
(a) To reverse the Tokenization process on an individual Token basis, Company may access an Servicer web
portal and, with appropriate authentication credentials, retrieve the Card Account Number associated with
any Token.
(b) To reverse the Tokenization process on a bulk basis (i.e., in excess of 100 Tokens at a time), an officer of
Company must make a request in writing to Servicer and provide Servicer with the Tokens for which
Company wishes to reverse the Tokenization process. Servicer will provide Company’s requesting officer
with an encrypted file containing the Card Account Numbers associated with such Tokens within 30 days
252
Operating Guide OG201702
121
of receiving the request. Company acknowledges and agrees that additional terms and conditions may
apply to reversal of Tokenization on a bulk basis.
3. Company Responsibilities and Acknowledgements.
(a) Servicer does not store Credit Card or Debit Card expiration dates. In order to use a Token to process a
Transaction, Company must provide the Token (in lieu of a Card Account Number) together with the
expiration date for the original Credit Card or Debit Card.
(b) Company is responsible for properly integrating in accordance with the Documentation and maintaining its
software and systems for use with the Instant Tokenization Services.
(c) Company has sole responsibility for the legality, integrity, accuracy and quality of the data inputted by
Company or its Customers in the use of the Instant Tokenization Services.
(d) Servicer does not in any way guarantee the valid or non-fraudulent use of any payment method for the
purchase of goods or services or of any of the Instant Tokenization Services by Customers. Fraudulent or
invalid use of a payment method cannot be exhaustively checked for and, without prejudice to the other
terms of this Schedule, Servicer expressly disclaims and excludes any liability for invalid or fraudulent use
of any payment method.
4. Use of API.
(a) Subject to the terms of this Schedule, Servicer hereby grants Company the non-exclusive rights to use,
copy, modify, or merge, copies of the applicable application programming interface (“API”), and to permit
persons to whom the API is furnished to do so.
(b) Company acknowledges that Servicer will only be able to provide Instant Tokenization Services to
Company and that Company will only be able to access the functionality relevant to the Instant
Tokenization Services if Company (i) properly uses the API to integrate and maintain integration of the
Company’s software and systems into the Servicer system in accordance with the Documentation; and (ii)
does not alter, modify, translate, adapt, decompile, disassemble or reverse engineer the API so as to affect
or in any way prejudice the functionality of the API.
(c) Company will include in all copies and portions of the API that Company makes available to third parties
the permission and copyright notice incorporated into such API from time to time, and Company will not
remove or alter in any way whatsoever any copyright notice or acknowledgements appearing on the API
from time to time.
253
Operating Guide OG201702
122
Chapter
28
Equipment
PROVISIONS APPLICABLE TO RENTAL EQUIPMENT
This section describes certain terms and conditions that apply to Companies that have elected to receive Rental
Equipment from Servicer. In addition to the requirements set forth in the Agreement and other applicable procedures
set forth in the Operating Guide, Companies that receive Rental Equipment from Servicer will adhere to the
requirements set forth in this Chapter. For the avoidance of doubt, the provisions of this Chapter will not apply to
Leased Equipment.
Rental Term. Company agrees to the rental term and to pay the fees for Rental Equipment set forth in the
Agreement. Company may terminate the rental term at any time upon written notice to Servicer, provided that
rental payments will not be prorated. Company will pay the full monthly rental payment for each full or partial
month until the Rental Equipment is returned to Servicer in good repair, condition and working order.
Ownership. Servicer will at all times retain title to the Rental Equipment. Company will not create, incur,
assume or suffer to exist any mortgage, lien, pledge or other encumbrance or attachment of any kind whatsoever
upon, affecting or with respect to the Rental Equipment.
Care and Use; Risk of Loss. Company will maintain the Rental Equipment in good operating condition, repair
and appearance, and protect the same from deterioration other than normal wear and tear. Company will only
use the Rental Equipment in the regular course of its business, and will comply with all laws, ordinances,
regulations and rules with respect to Company’s use, maintenance and operation of the Rental Equipment.
Company will bear all risk of loss of and damage to the Rental Equipment while in Company’s possession. In
the event of a loss of, or damage to, the Rental Equipment, Company will pay to Servicer the then current full
purchase price of the Rental Equipment.
Rental Equipment Replacement. Servicer will replace any inoperable or non-functioning Rental Equipment
during the rental term; provided, that (i) such Rental Equipment is not inoperable or non-functioning due to any
act of Company or any damage for which Company is responsible, (ii) Company has paid all rental payments
due and owing to Servicer, and (iii) Company pays the standard swap fee for the shipping and handling of the
replacement Rental Equipment. Rental Equipment replacement will constitute Company’s sole remedy and
Servicer’s sole obligation with respect to any inoperable or non-functioning Rental Equipment.
Return of Rental Equipment. Within ten (10) days of the expiration or termination of the rental term,
Company will return the Rental Equipment, freight prepaid, to Servicer in good repair, condition, and working
order, ordinary wear and tear excepted, to a location designated by Servicer. If Company fails to return the
Rental Equipment to Servicer within the time period specified, Company will pay to Servicer the then current
full purchase price of the Rental Equipment.
254
Operating Guide OG201702
123
PROVISIONS APPLICABLE TO APPLE, INC. EQUIPMENT
This section describes certain terms and conditions that apply to Companies that have received Apple, Inc.
Equipment from Servicer.
Support. Servicer will provide Company with full support and assistance with any troubleshooting or any other
help-desk function as may be needed or required in connection with Company’s use of Apple, Inc. Equipment.
Company may also purchase AppleCare to provide additional support for its Apple, Inc. Equipment, although
Apple Care does not apply to any components used in connection with the Apple, Inc. Equipment that are not
produced by Apple, Inc.
Warranty. Company understands and acknowledges that Apple, Inc., its officers, affiliates and subsidiaries
make no warranties or endorsements with respect of Company’s use of Apple, Inc. Equipment as a POS Device,
nor any other POS Device, third-party product, or combination of any Apple, Inc. and any such third-party
product or POS Device.
255
Operating Guide OG201702
124
Chapter
29
Supplies
We can provide supplies necessary to complete your Card Transactions. To replenish your stock, go online to
http://www.merchantconnect.com or select the “Supplies” option from the merchant services telephone menu. These
supplies include:
Card Transaction Receipts and Credit Transaction Receipts
Imprinter
Batch Header receipts and envelopes
Company plate
Electronic printer paper
Stickers containing Voice Authorization numbers
Visa and MasterCard window decals and cash register signs
Quick Reference Guide (QRG) supporting your POS Device
We suggest that you check your supplies frequently to ensure you have an adequate quantity on site. Requesting a
“rush” shipment will cause you to incur additional charges.
256
Operating Guide OG201702
125
Chapter
30
MasterPassTM Wallet Services
Companies using the Converge Payment System also are enabled to participate in MasterCard’s MasterPassTM
digital wallet service, an integrated digital wallet platform designed and provided by MasterCard to enable
customers to pay for goods and services in e-commerce transactions (the “MasterPass Wallet Services”). The
MasterPass Wallet Services enable online acceptance of digital wallets that have integrated features, including (i)
MasterCard’s proprietary digital wallet product, which is an electronic means of storing and transmitting payment
card and related information on behalf of a Cardholder, and (ii) third-party digital wallets that have integrated into
MasterCard’s MasterPass Wallet Services. By using the Converge Payment System and the integrated MasterPass
Wallet Services, Company agrees to the terms and conditions set forth herein and to the terms and conditions
MasterCard has established for its MasterPass Wallet Services in the MasterPass Operating Rules, currently
available at https://masterpass.com/SP/Company/OperatingRules, as the same may be updated from time to time.
Additional details regarding the operation and use of the MasterPass Wallet Services are set forth in the MasterPass
Operating Rules and in related technical and operational specifications provided or made available by MasterCard.
Company agrees to maintain all MasterCard and MasterPass branding, trademarks, and logos in accordance with the
MasterPassTM Company Branding Requirements, currently available at:
https://masterpass.com/SP/Merchant/OperatingRules
257
Operating Guide OG201702
126
Chapter
31
PayPal Acceptance
Companies participating in our PayPal Program will be enabled to accept PayPal Payment Devices. All participating
Companies will be able to accept PayPal Cards. Participating Companies utilizing compatible POS Devices may
also accept PayPal Mobile Transactions. Please note that Servicer is acting only to facilitate passing purchase
information to PayPal at the point of acceptance; the Company’s relationship with respect to PayPal transactions
will be with PayPal, and Servicer does not fund PayPal transactions.
TERMS APPLICABLE TO PAYPAL ACCEPTANCE
1. PayPal Marks. Company may use the PayPal Marks only to promote PayPal products, offers, services,
processing and/or acceptance. Company use of the PayPal Marks is restricted to the display of decals,
signage, advertising, and marketing materials provided or approved by PayPal in writing pursuant to the
process set forth in the PayPal Program Documents. Company will not use the PayPal Marks in such a way
that customers could believe that the products or services offered by Company are sponsored or guaranteed
by the owners of the PayPal Marks. Company recognizes that it has no ownership rights in the PayPal
Marks. Company will not assign to any third party any of the rights to use the PayPal Marks. Company is
prohibited from using the PayPal Marks, not permitted by the PayPal Program Documents, unless expressly
authorized in writing by PayPal. Company will only use and display the PayPal Program Marks in
accordance with the PayPal Program Documents.
2. POS Devices. Company must ensure that it utilizes POS Devices capable of accepting PayPal Cards in
accordance with the PayPal Program Documents.
3. Merchandise on Display; Inventory. Company must ensure that it has merchandise on display at the point
of sale that is related and relevant to the MCC assigned to the Company, and that there is sufficient
inventory on premises to transact business.
4. Evidence of Being an Operating Business. Company must provide to Servicer upon request such
documentation reasonably required by Servicer to verify that Company is actually operating a business,
such as bank or supplier documentation.
5. Telephone and Storefront. Company must maintain a working telephone and retail storefront.
6. Compliance with the PayPal Program Documents. Company must comply with all applicable terms of the
PayPal Program Documents in the course of its participation in the PayPal Program, including the
acceptance of PayPal Cards and/or PayPal Mobile Transactions.
258
Operating Guide OG201702
127
Chapter
32
Level III Data
This Chapter describes certain services available to Companies that have been approved by Servicer to submit Level
III Data to Servicer in connection with certain Transactions. Level III Data may only be submitted with Visa or
MasterCard Commercial Card Transactions, and the Company must have a separate MID for Level III transactions
and correctly input each of the data elements set forth below in order to be eligible to receive the favorable
interchange rates associated with submitting Level III Data, in addition to the sales tax data and customer code data
elements required for Transactions to qualify for Level II. Servicer may update these data element requirements
from time to time in separate communications to Companies or through updates to the MOG. In Canada, Visa
requires Company registration to qualify for Level III interchange rates.
REQUIRED DATA POINTS FOR VISA TRANSACTIONS
Company must include the following data elements with each eligible Visa Commercial Card Transaction:
Data Element Description Entry Parameters
Discount Amount The total discount amount applied to an
entire Transaction.
Must not be all zeros if a discount
amount exists and last two
digits are implied decimal places. Must
be all zeros if discount
amount does not exist.
Freight/Shipping
Amount
The total freight/shipping amount applied
to a Transaction.
Must not be all zeros if a freight/shipping
amount exists and last two digits are
implied decimal places. Must be all zeros
if freight/shipping amount does not exist.
Duty Amount The total duty amount applied to a
Transaction, which would include any
Import Tax, Excise, Customs Tax Impost
or Levy.
Must not be all zeros if a duty amount
exists and last two digits are implied
decimal places. Must be all zeros if duty
amount does not exist.
Item Commodity
Code
Commodity codes are used by corporate
purchasing organizations to segment and
manage their total spend across diverse
product lines.
Must not be all spaces or all zeros.
Item Descriptor A specific text description of the item
purchased in the Transaction.
Must not be all spaces or all zeros.
Product Code Product code is typically the supplier’s
unique product identifier, such as a part
number or catalog number. This is usually
identified with an inventory number or
UPC code.
Must not be all spaces or all zeros.
Quantity Number of units purchased for the line
item in the Transaction.
Must not be all spaces or all zeros. The
last four digits are implied decimal
places.
259
Operating Guide OG201702
128
Data Element Description Entry Parameters
Unit of Measure The metric or measurement code used for
describing the quantity of units.
Must not be all spaces or all zeros.
Unit Cost The cost of each unit purchased for the
line item.
Must not be all spaces or all zeros. The
last four digits are implied
decimal places.
Discount Per Line
Item
Amount of discount applied to a particular
line item.
Must not be all zeros if a discount exists.
Must be all zeros if discount does not
exist.
Line Item Total Total amount for the line item, calculated
as using the following formula: Line Item
Total = (Unit Cost x Qty) – Discount Per
Line Item.
Last two digits implied decimal places.
Must not be all spaces or zeros.
REQUIRED DATA POINTS FOR MASTERCARD TRANSACTIONS
Company must include the following data elements with each eligible MasterCard Commercial Card Transaction:
Data Element Description Entry Parameters
Product Code The non-fuel related product code of the
individual item purchased.
Must not contain all zeros or all spaces.
Item Description Text description of the individual item
purchased.
Must not contain all zeros or all spaces.
Item Quantity The quantity of the item purchased. Must be numeric and greater than zero.
Item Unit of Measure The metric or measurement code used for
describing the quantity of units.
Must not contain all low values, all high
values, all zeros, or all spaces.
Extended Item
Amount
The amount spent on the line item,
calculated as price multiplied by the
quantity.
Must be a number greater than zero.
Debit or Credit
Indicator
Indicates whether the net of extended item
amount, net of discount, taxes, and price,
is a debit or credit.
Must be a letter.
260
Operating Guide OG201702
129
Chapter
33
Additional Resources
Visit our web site at http://www.merchantconnect.com to obtain customer support, retrieve account information,
order supplies, and more.
PAYMENT NETWORK COMPANY INFORMATION
For Payment Network-specific Company information, visit the following websites:
American Express - http://www.americanexpress.com/merchantopguide
Discover Network - http://www.discovernetwork.com/getstarted/merchant/merchant.html
MasterCard - http://mastercard.com/us/merchant/index.html
Visa - https://usa.visa.com/run-your-business/accept-visa-payments.html
For information regarding the operating rules and regulations of the various Payment Networks, visit the following
websites:
American Express - http://www.americanexpress.com/merchantopguide
Discover Network - http://www.discovernetwork.com
MasterCard - http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf
Visa - http://usa.visa.com/merchants/operations/op_regulations.html
PCI DATA SECURITY STANDARDS INFORMATION
For PCI Data Security Standards information and requirements, visit the following websites:
PCI Security Standards Council – https://www.pcisecuritystandards.org/#
American Express - http://www.americanexpress.com/merchantopguide
Discover Network - http://www.discovernetwork.com/fraudsecurity/disc.html
MasterCard SDP -https://www.mastercard.us/en-us/merchants/safety-security/security-recommendations/site-
data-protection-PCI.html
Visa - https://usa.visa.com/support/small-business/security-compliance.html#3
261
Operating Guide OG201702
130
Appendix
A
Glossary
ACH: Automated Clearing House, the funds transfer system governed by the rules of NACHA. ACH allows
financial institutions to clear interbank entries electronically.
ACH Network: The funds transfer system governed by the ACH Rules. The ACH Network allows participating
depository financial institutions to clear interbank entries electronically.
ACH Rules: The NACHA Operating Rules and Operating Guidelines, which govern the interregional exchange and
settlement of ACH transactions.
ACS: See Automated Customer Service.
Activation Date: the date that Company activates the configuration and connection to the Connectivity in a
production environment after installation of the Connectivity Equipment in the Designated Space.
Address Verification Service (AVS): A fraud-reduction service that allows the Company to verify a Cardholder’s
billing address prior to completing a Card Not Present Transaction.
Agreement: The Master Services Agreement, Payment Device Processing Agreement, or Terms of Service, as
applicable, any addendum to the foregoing, the Company Application, this Operating Guide, any other guides or
manuals provided to Company from time to time, and all additions to, amendments and modifications of, and all
replacements to any of them.
American Express: American Express Travel Related Services Company, Inc.
Apple, Inc. Equipment: The Equipment produced by Apple, Inc. that is specified on Schedule A to the Payment
Device Processing Agreement, an Additional Equipment Form, or any other form or Agreement and is obtained by
Company from Servicer.
Approval Code: An Authorization Code indicating that the Transaction is approved and the Card may be honored.
Automated Customer Service (ACS): A desktop application used as a reporting and accounting reconciliation tool
for viewing detailed reports of Transaction activity, statement detail, Card type history, and qualification detail.
Authorization: A required procedure by which a Company requests approval of a Transaction from the Issuer.
Authorization is initiated by accessing the authorization center by telephone or POS Device. See also Magnetic
Swipe Authorization, Manual Entry Authorization, or Voice Authorization.
Authorization Code: The code sent by the Issuer in response to an Authorization request that indicates whether the
Transaction is approved. Responses may include: “Approved,” “Declined,” “Declined Pick-Up,” or “Referral”
(“Call Auth”).
Authorization Code: The code sent by the issuer of a Payment Card in response to an authorization request (the
procedure by which Servicer requests approval of a Transaction involving a Payment Card from the issuer of the
Payment Card), which indicates whether the Transaction is approved by the issuer.
262
Operating Guide OG201702
131
Autofax: A program offered to Companies for receiving Retrieval Request and Chargeback notices via a dedicated
24-hour fax line.
AVS: See Address Verification Service.
Balance: The amount of money owed by the Cardholder to the Issuer for charges on a Credit Card. On a Debit Card
this is the amount of money available in the Cardholder’s demand deposit or savings account
Bank Identification Number (BIN): The identification number assigned to a Member that is used for Card issuing,
Authorization, clearing, and Settlement processing.
Bankruptcy Proceeding: With respect to a Person means (i) that the Person or any subsidiary of such Person will:
(a) commence a voluntary case under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws
(as now or hereafter in effect); (b) file a petition seeking to take advantage of any other applicable laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts or any
other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency or
body; (c) consent to or fail to contest, in a timely and appropriate manner, any petition filed against it in an
involuntary case under such bankruptcy laws or other applicable laws; (d) 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 trustee, receiver, custodian,
liquidator, or similar entity of such Person or of all or any substantial part of its assets, domestic or foreign; (e) admit
in writing its inability to pay its debts as they become due; (f) make a general assignment for the benefit of creditors;
(g) make a conveyance fraudulent as to creditors under any applicable law; or (h) take any action for the purpose of
effecting any of the foregoing; or (ii) that a case or other proceeding will be commenced against the Person or any
subsidiary of such Person in any court of competent jurisdiction, or through any regulatory agency or body, seeking:
(a) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect) or under any other applicable laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition, or adjustment of debts; or (b) the appointment of a trustee, receiver, custodian,
liquidator or the like of such Person or of all or any substantial part of the assets, domestic or foreign, of such Person
or any other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency
or body.
Batch: The accumulated Card Transactions stored in the POS Device or Host computer.
Batch Header: A summary, similar to a deposit slip, of a group of Card Transactions accepted by a Company who
does not process Transactions electronically. It is attached to the Transaction Receipts when they are sent to the
paper processor.
Bill Load File: A file of data in a Biller Direct Services-specified format that is provided by Company to Servicer
via data transmission or upload to the Biller Direct Services platform on a regularly scheduled basis. The data
passed to the Biller Direct Services platform will include information used to identify the Customer, amount due,
and other data relevant to the effective processing of the Transaction.
Bill Payment: PIN-less Debit Card payment Transactions resulting in funds transfer from Cardholders to
Companies in connection with payments for recurring services (excluding casual or occasional purchases) for
which a corresponding invoice is periodically presented to the Cardholder by the Company, and which Transaction
is initiated via a telephone (Voice Recognition Unit, Interactive Voice Recognition) or Internet device.
BIN: See Bank Identification Number.
Business Associate: Has the meaning ascribed to it in HIPAA.
Business Associate Agreement: A contract between a Business Associate and a covered entity as required by
HIPAA.
Card: A plastic card issued by a bank or other financial institution, or by a Card company (e.g., Discover Network,
Visa and MasterCard Credit Cards and Debit Cards), that allows a Cardholder to pay for purchases by credit,
charge, or debit.
Cardholder: the individual in whose name a Payment Device has been issued and any authorized user of such
Payment Device.
263
Operating Guide OG201702
132
Cardholder Information Security Program (CISP): The data security regulations required by Visa to protect
Cardholder account data and other data security best practices. The exact requirements for CISP can be found at
www.visa.com/cisp.
Card Identification Number (CID) or Card Validation Code (CVV2/CVC2): A number printed on a Card and
used as additional verification for Card Not Present Transactions. For American Express this is a four-digit code
printed above the Card account number. For Visa, MasterCard and Discover Network this is a three-digit card code
value printed on the signature panel of the Card.
Card Imprint: See Imprint or Imprinter.
Card Not Present: The processing environment where the Payment Device is not physically presented to the
Company by the Cardholder as the form of payment at the time of the Transaction. Card Not Present includes, but
is not limited to, Mail Order (MO), Telephone Order (TO), and Electronic Commerce (EC).
Card Present: The processing environment where the Payment Device is physically presented to the Company by
the Cardholder as the form of payment at the time of Transaction.
Card Rules: The Credit Card Rules and Debit Card Rules, collectively.
Card Validation Code: See Card Identification Number.
Cash Advance: A Transaction in which a Cardholder receives cash from a financial institution or an ATM.
Chargeback: A Transaction disputed by a Cardholder or Issuer pursuant to the Payment Network Regulations.
Chip: A microchip that is embedded in a Card that contains Cardholder data in an encrypted format.
Chip and PIN Technology: Any technology in whatever form introduced by any Payment Network which employs
Chip embedded Cards and/or the use of a PIN in conjunction with, or in replacement of, a manual signature of
Cardholder.
Chip Card: A Card embedded with a Chip that communicates information to a Chip-Reading Device.
Chip-Reading Device: A POS Device capable of reading, communicating and processing Transaction Data from a
Chip Card.
CID: See Card Identification Number.
Code 10 Authorization: An Authorization or an “additional verification step” obtained for a suspicious or
questionable Transaction, Card, or Cardholder.
Commercial Cards: Cards issued on the Visa or MasterCard networks to businesses that provide additional
reporting to such businesses, including those designated by Visa or MasterCard as Corporate, Business or
Purchase/Purchasing cards.
Company: The business entity that provides goods and/or services to Customers (formerly referred to as
“Merchant”, or, with respect to Gateway Services, “Customer”)).
Company Application: The Company Application and any additional document containing information regarding
Company’s business that is submitted to Servicer in connection with Company’s application for the Services,
including documents submitted by Company as a part of the bid process, if applicable.
Company Connectivity Software: any software provided by or on behalf of Company, whether integrated at
Company’s or a third party hosting or service provider’s operating environment, and the associated interfaces and
data collection routines implemented by or on behalf of Company to access and use the Gateway Services, including
plug-ins, agents, and operating system components.
Company Identification Card: A plastic card issued to the Company that contains the Merchant Identification
Number, name, location, and DDA number.
Company Location: a designated location at which a Company uses the Gateway Services.
Company Plate: A plastic or metal plate affixed to the Imprinter that contains Company information such as the
Company name, MID, city and state, and a Discover or American Express account number, if applicable.
264
Operating Guide OG201702
133
Company Statement: A monthly summary of activity in a Company account.
Compliant Chip Card: A Chip Card that complies with all Payment Network Regulations.
Connectivity: the Servicer-controlled non-public network connectivity and interfaces for transmitting data between
the Origination Point and the Hosted System.
Connectivity Equipment: all computer router equipment, accessories, peripherals, software and other materials
provided by Servicer that are designated on a schedule or addendum to the Agreement to be installed in the
Designated Space and provide Connectivity, and shall include replacement or updated equipment as may be
provided by Servicer from time to time during the Term of the Agreement.
Contactless: A payment card or key fob equipped with a chip and antenna that securely communicates Cardholder
account information via radio frequency to a POS Device.
Convenience Fee: A fee charged by Company for an added convenience to the Cardholder for the use of a Payment
Device in a Transaction in accordance with the Payment Network Regulations.
Converge Services: The delivery of payment acceptance and processing services by Servicer through Servicer’s
Converge interface in accordance with this Operating Guide and the Converge documentation provided by Servicer
to Company, as the same may be updated by Servicer from time to time.
Copy Request: See Retrieval Request.
Coverage Area: The geographic area in which wireless Transaction processing is available to Company.
Credit Card: A card or device associated with a revolving line of credit that may be used to purchase goods and
services from Company or to pay an amount due to Company or to obtain cash advances. A “Credit Card” includes
any of the following cards or devices that are associated with a line of credit extended to the Person to whom the
card or device is issued: (i) a Visa card or other card or device bearing the symbol(s) of Visa U.S.A., Inc. or Visa
International, Inc. (including Visa Gold cards); (ii) a MasterCard card or other card or device bearing the symbol(s)
of MasterCard International Incorporated (including MasterCard Gold cards); (iii) a Discover Network card or
other card or device bearing the symbol(s) of Discover Network; or (iv) any card or device bearing the symbol of
any other Credit Card Association.
Credit Card Associations: (i) Visa; (ii) MasterCard; (iii) American Express; (iv) Discover Network; (v) Diners
Club International Ltd.; (vi) JCB International Co., Ltd.; (vii) China UnionPay Co., Ltd; and (viii) any other
organization or association that hereafter contracts with Servicer to authorize, capture, and settle Transactions
effected with Credit Cards issued or sponsored by such organization or association, and any successor organization
or association to any of the foregoing.
Credit Card Rules: All applicable rules and operating regulations of the Credit Card Associations, and all rules,
operating regulations, and guidelines for Credit Card Transactions issued by Servicer from time to time, including,
without limitation, all amendments, changes and revisions made thereto from time to time.
Credit Transaction Receipt: A document, in paper or electronic form, evidencing a Company’s refund or price
adjustment to be credited to the Cardholder’s account and debited from the Company’s DDA. This is also known as
a credit slip or credit voucher.
CVV2/CVC2: See Card Identification Number.
Customer: A client of Company who elects to conduct a payment Transaction with Company through presentation
of a Payment Device (including a Cardholder) or who participates in Company’s Fanfare Loyalty Program.
Customer Data: Any information or data related to a Customer, including personal information, personally
identifying information and information about a Customer’s purchase Transactions at Company, collected by
Company and provided to Servicer or received by Servicer from a Customer in connection with the Fanfare Loyalty
Program or Servicer’s provision of the Fanfare Loyalty Services.
DDA: See Demand Deposit Account.
Debit Card: A card or device bearing the symbol(s) of one or more EFT Networks or Credit Card Associations,
which may be used to purchase goods and services from Company or to pay an amount due to Company by an
electronic debit to the Cardholder’s designated deposit account. A “Debit Card” includes (i) a card or device that
265
Operating Guide OG201702
134
bears the symbol of a Credit Card Association and may be used to conduct signature-based, offline debit
Transactions, and (ii) a card or device that bears the symbol of an EFT Network and can be used to conduct PIN-
based, online debit Transactions.
Debit Card Rules: All applicable rules and operating regulations of the EFT Networks and Credit Card
Associations, and all rules, operating regulations, and guidelines for Debit Card Transactions issued by Servicer
from time to time, including, without limitation, all amendments, changes, and revisions made thereto from time to
time.
Declined Code: An Authorization Code indicating that the Transaction is declined and the Card is not to be
honored
Declined Pick-Up Code: An Authorization Code indicating that the Transaction is declined and the Card should be
retained by the Company.
Demand Deposit Account: The commercial checking account at a financial institution acceptable to Servicer
designated by Company to facilitate payment for Transactions, Chargebacks, returns, adjustments, fees, fines,
penalties, and other payments due under the Agreement. In the instance of a Debit Card or ATM Card, this refers to
the Cardholder’s deposit account.
Designated Space: the location on the premises of Company (or its third party hosting provider) at which the
Connectivity Equipment is installed.
Destination Point: a location of a Payment Services Entity designated by Company with respect to which Company
has requested Servicer to provide the Gateway Services or to which Company has requested Servicer submit
Transactions.
Diners: Diners Club International Ltd.
Discount: A type of fee paid by a Company to process its Card Transactions. Discount is calculated by multiplying
the Discount rate by the volume of Card Transactions.
Discover: DFS Services LLC.
Discover Network: The payment network operated and maintained by Discover.
Doing Business As (DBA): The trade name of a Company that may appear on business signs, customer literature,
or other documents.
Domestic Internet PIN-Based Debit Card Transaction: A PIN-based Transaction conducted over the
internet using a Debit Card and processed over an EFT Network.
Dynamic Currency Conversion (DCC): The conversion of the purchase price of goods or services from the
currency in which the purchase price is displayed to another currency as agreed to by the Cardholder and Company.
That currency becomes the Transaction currency, regardless of the Company’s local currency.
EBT: See Electronic Benefits Transfer Service.
EBT Card: A card utilized for electronic benefits transfers.
ECS: See Electronic Check Service.
ECS Association: NACHA, any regional ACH association or network, and any other organization or association
used by Servicer or Member in connection with the ECS that is hereafter designated as an ECS Association by
Servicer from time to time.
ECS Rules: All applicable rules and operating regulations of or applicable to the ECS Associations (including the
ACH Rules) and the ECS MOG, in each case including without limitation, all amendments, changes, and revisions
made thereto from time to time.
266
Operating Guide OG201702
135
EFT Networks: (i) Interlink Network Inc., Maestro U.S.A., Inc., STAR Networks, Inc., NYCE Payments Network,
LLC, PULSE Network LLC, ACCEL/Exchange Network, Alaska Option Services Corporation, Armed Forces
Financial Network, Credit Union 24, Inc., NETS, Inc., SHAZAM, Inc., and Interac and the Interac Direct Payment
service; and (ii) any other organization or association that hereafter authorizes the Servicer or Member to authorize,
capture, and/or settle Transactions effected with Debit Cards, and any successor organization or association to any
of the foregoing. For purposes of Chapter 2, heading Special Requirements Applicable to Internet PIN-Based Card
Transactions, ETF Networks will only include networks in the United States.
EGC: See Electronic Gift Card.
EGC Cardholder Data: One or more of the following data elements pertaining to a Cardholder’s account:
Electronic Gift Card number, Cardholder name (if applicable), Electronic Gift Card account activity, Cardholder
account balance, and such other data applicable to the Company’s EGC program.
Electronic Benefits Transfer Service (EBT): A service that allows electronic transfer of government funds to
individuals through the use of a plastic debit-like Card and a Personal Identification Number (PIN). The federal
government requires all states to distribute food stamps and cash benefits in this manner. The EBT Card may then
be used for qualified purchases at company locations.
Electronic Check Service (ECS): The service offering by Servicer pursuant to which Transactions effected via an
ACH Payment Device are presented for clearing and settlement through the ACH Network or alternate clearing
channel as described in the ECS Merchant Operating Guide (ECS MOG).
Electronic Commerce Transaction: A Transaction that occurs when the Cardholder uses the Internet to make a
purchase from a Company.
Electronic Gift Card (EGC): A special stored value card provided by or on behalf of Company that is redeemable
for merchandise, services or other Transactions.
Electronic Gift Card (EGC) Services: Services provided by Servicer that allow a Company to sell Electronic Gift
Cards redeemable for in-store merchandise or services.
Embossing: The process of printing data on a Card in the form of raised characters so the Card may be used in the
imprinting of Transaction Receipts.
Encryption: A security or anti-fraud technique that scrambles data automatically in the POS Device before the data
is transmitted. For example, PINs are encrypted when transmitted for Authorization.
Equipment: All equipment identified on Schedule A (Schedule of Fees) to the Agreement, including: (i) for
SmartLink Services, SmartLink payment gateway devices; or (ii) for Voyager Card Acceptance or Wright Express
Card Acceptance, Fleet terminals.
Factoring (Laundering): Processing Transactions for another person or business through a Company’s account.
Fanfare Basic Registration: A Customer’s completion of registration in Company’s Fanfare Loyalty Program at
the Company’s Fanfare Loyalty Website in which the Customer does not elect to permit Servicer to communicate
with the Customer about products and services outside of Company’s Fanfare Loyalty Program.
Fanfare Enrolled Customer: A Customer of Company that has enrolled to participate in Company’s Fanfare
Loyalty Program.
Fanfare Full Registration: A Customer’s completion of registration in Company’s Fanfare Loyalty Program at the
Company’s Fanfare Loyalty Website in which the Customer elects to permit Servicer to communicate with the
Customer about products and services outside of Company’s Fanfare Loyalty Program.
Fanfare Gift Card: A special card, code or device purchased by or provided to a Customer (including any
promotional card, code or device) that is redeemable for merchandise, services or other Transactions with
Company.
Fanfare Gift Card Program: A program established and managed by Company using the Fanfare Platform in
accordance with the Agreement and the Operating Guide.
Fanfare Gift Card Services: Fanfare Gift Card Program setup and Services provided by Servicer to Company as
described in the Agreement and the Operating Guide.
267
Operating Guide OG201702
136
Fanfare Loyalty Card: A plastic card obtained from Servicer and branded with the Company’s logo displayed
within one of Servicers pre-defined styles, which card is encoded with a magnetic stripe for use with Company’s
Fanfare Loyalty Program.
Fanfare Loyalty Program: A program established and managed by Company, using the Fanfare Platform, through
which Company may endeavor to promote Customer loyalty and increased spending by offering promotions,
rewards and incentives to Fanfare Enrolled Customers.
Fanfare Loyalty Program Account: The Fanfare Loyalty Program account established within the Fanfare
Platform for each Fanfare Enrolled Customer, which account may be managed by the Fanfare Enrolled Customer
through the Fanfare Loyalty Website when such Fanfare Enrolled Customer becomes a Fanfare Registered
Customer.
Fanfare Loyalty Services: A loyalty program platform that supports Company establishment of a Fanfare Loyalty
Program, Customer enrollment in the Fanfare Loyalty Program, establishment and maintenance of the Fanfare
Loyalty Website, the ability to generate marketing campaigns and offer promotions to Customers, and Services
related to redemption of Customer rewards, in each case as more fully described in the Agreement and the
Operating Guide.
Fanfare Loyalty Website: A Customer-facing website hosted by Servicer and co-branded by Servicer (Fanfare)
and Company through which (i) Customers that have not enrolled in Company’s Fanfare Loyalty Program may
enroll online as part of the registration process, (ii) Fanfare Enrolled Customers may access Company’s Fanfare
Loyalty Program disclosures, (iii) Fanfare Enrolled Customers may un-enroll in the Fanfare Loyalty Program, or
(iv) Registered Customers may manage their Fanfare Loyalty Program Accounts, in each case as more fully
described in the Agreement and the Operating Guide.
Fanfare Platform: The systems hosted directly or indirectly by Servicer through which (i) Company establishes its
Fanfare Loyalty Program and/or Fanfare Gift Card Program, and (ii) the Fanfare Services are provided to
Company.
Fanfare Registered Customer: A Fanfare Enrolled Customer that has also completed Fanfare Basic Registration
or Fanfare Full Registration at Company’s Fanfare Loyalty Website.
Fanfare Services: The Fanfare Loyalty Services and/or Fanfare Gift Card Services provided by Servicer and used
by Company in accordance with the Agreement and the Operating Guide.
Fanfare Web Portal: A web-based portal provided by Servicer through which Company may obtain information
and guides pertaining to the Fanfare Services and Fanfare Platform, and may access Company-specific program
metrics via dashboards, view information about a Customer’s purchase Transactions at Company, create additional
Customer offers and retrieve reports regarding Company’s Fanfare Gift Card Program and/or Fanfare Loyalty
Program, in each case as applicable to the Fanfare Services elected by Company hereunder.
Gateway Data: all Cardholder Data and Transaction Information provided to Servicer by or on behalf of Company
in order for Servicer to provide the Gateway Services.
Healthcare Payer: Any third party administrator, payer of healthcare benefits and healthcare-related payments,
health plan or self-insured entity that remits a payment to Company in connection with the Transend Pay Services.
HIPAA: The Health Insurance Portability and Accountability Act of 1996.
Hologram: A three-dimensional image included on a Card to discourage counterfeiting.
Host: The central server we use to store Company information and to route information between the Company and
the Issuers.
Hosted System: the Servicer proprietary switch technology, operating systems and software platform operated by
Servicer for the Gateway Services.
Implementation Date: the date that Servicer has notified Company the Connectivity Equipment is available for
configuration and activation with the Connectivity.
Imprint: The physical impression made from a Card on the Transaction Receipt, which may be used to prove that
the Card was present when the sale was made.
268
Operating Guide OG201702
137
Imprinter: A device used by Companies to make an Imprint on a Transaction Receipt.
Integrated Point of Sale: A Company-operated Point of Sale environment that is integrated with Servicer’s Biller
Direct Services offering
Interac: Interac Association.
Interac Online: The service provided by Interac to permit Customers to pay for goods and services over the
Internet and directly from the Customer’s bank account.
Interac Online Rules: All applicable rules and operating regulations of the Acxsys Corporation, including, but not
limited to, the Interac Online Functional Specifications, the Interac Online Operating Regulations, the Interac Online
Customer Service Rules, and the Interac Online By-laws, the Trade-mark License Agreement, the Canadian Code of
Practice for Consumer Protection in Electronic Commerce (http://cmcweb.ca/epic/internet/incmc-
cmc.nsf/en/fe00064e.html) and any other directive, guideline or policy passed by resolution and promulgated by the
Acxsys Corporation and all applicable federal and provincial laws, and all rules, operating regulations, and
guidelines for Interac Online Transactions issued by Servicer from time to time, including, without limitation, all
amendments, changes, and revisions made thereto from time to time.
Interchange: The clearing and settlement system for Visa and MasterCard Credit Cards and Debit Cards and,
where applicable, Discover Network Credit Cards and Debit Cards, where data is exchanged between the Servicer
and the Issuer.
Interchange Fees: The amount paid by the Servicer to the Issuer on each Transaction. Interchange Fees vary
according to the type of Company and the method of processing.
International Credit Card: A Credit Card issued for acceptance on or accessible through an International Network.
International Debit Card: A debit card or device bearing the symbol(s) of one or more International Networks, which
may be used to purchase goods and services from Company or to pay an amount due to Company by an electronic debit to
the Cardholder’s designated deposit account.
International Debit Card Transaction: A PIN-based Transaction conducted over the internet using an
International Debit Card and processed over an International Network.
International Internet PIN-Based Card Transaction: An International PIN-Based Credit Card Transaction or an
International Debit Card Transaction.
International PIN-Based Credit Card Transaction: A PIN-based Transaction conducted over the internet
using an International Credit Card and processed over an International Network.
International Network: An organization or association based outside the United States and that operates or
sponsors a payments network, with respect to which Servicer is authorized, directly or indirectly, to process, capture,
and/or settle Transactions effected with Payment Devices issued or approved for use on the payments network
operated or sponsored by such organization or association.
International Network Requirements: All applicable rules and operating regulations of the International
Networks, including, without limitation, all amendments, changes, and revisions made thereto from time to time.
References to “Payment Network Regulations” in the Operating Guide will be understood to include International
Network Requirements.
Internet Payment Screen. The screen displayed to a Cardholder during an Internet PIN-less Bill Payment
Transaction payment process which allows the Cardholder to select the payment method and to confirm
understanding and agreement with payment terms, shipping and return policy.
Internet PIN-Based Card Transaction: A Domestic Internet PIN-Based Debit Card Transaction or an
International Internet PIN-Based Card Transaction.
Internet PIN-Based Card Transaction Documentation: The rules, regulations, and guidelines for Internet PIN-
Based Card Transactions issued by Servicer from time to time, as amended, revised, or supplemented.
Internet PIN Pad: A secure program that displays and allows entry on a virtual numeric keyboard that conforms
with the applicable Card Rules and/or International Network Requirements and the PCI Data Security Standard, and
requirements established from time to time by Servicer, and through which a Cardholder may enter a PIN.
269
Operating Guide OG201702
138
Issuer: The financial institution or other entity that issued the Credit Card or Debit Card to a Cardholder.
JCB: JCB International Co., Ltd.
Laundering: See Factoring.
Laws: All applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding law in effect
from time to time.
Leased Equipment: The Equipment specified in the Agreement that is leased from Servicer pursuant to the terms of
such Agreement. For the avoidance of doubt, Rental Equipment does not constitute Leased Equipment.
Level III Data: Detailed Transaction data including line-item detail about the purchase.
Loyalty Card: A device used to hold a currency or points value in a stored value program.
Magnetic Stripe: A stripe of magnetic material affixed to the back of a Card that contains Cardholder account
information.
Magnetic Swipe Authorization: An electronic Authorization request generated when a Company swipes the
Cardholder’s Card through the POS Device. The POS Device reads the Cardholder information from the Magnetic
Stripe on the Card and then dials out to the Authorization Center to obtain an Authorization Code.
Mail Order/Telephone Order (MO/TO) Transaction: For MO, a Transaction that occurs when the Cardholder
uses the mail to make a payment to a Company and for TO, a Transaction that occurs when the Cardholder uses a
telephone to make a payment to a Company.
Maintenance Services: the routine support and maintenance services provided by Servicer (or its designated
subcontractor) for the Connectivity Equipment.
Manual Entry Authorization: An Authorization request generated when the Company key-enters the
Cardholder’s Card number, expiration date, and sales amount into the POS Device (e.g., when the POS Device is
unable to read the Cardholder information from the Magnetic Stripe on the Card). The POS Device then dials out to
the appropriate Authorization Center to obtain an Authorization Code.
Master Account: The account (e.g. funds pool) used to hold the value of Electronic Gift Cards that have been
issued among a group or chain of Companies; alternatively, this may refer to the back-up account used to offset
electronic payment, ACH or Canadian Payments Association rejects, if applicable.
MasterCard: MasterCard International Incorporated.
Member: A financial institution designated by us that is a principal, sponsoring affiliate or other member of Visa,
MasterCard or other member of the applicable Payment Network. The Member may be changed by Servicer at any
time and the Company will be provided notice of same.
Merchant Category Code (MCC): The four-digit code and corresponding definition assigned to each Company
that describes the type of business in which the Company is engaged.
MerchantConnect: A Web-based Transaction reporting and reconciliation system used to manage Transaction
Data from multiple locations or multiple merchant accounts via any standard Web browser (e.g., Internet Explorer).
Merchant Identification Number (MID): A unique identification number assigned to a Company to identify its
business.
MO/TO: Mail Order/Telephone Order.
Model Documents: A sample set of customer terms and conditions and a privacy policy provided by Servicer to
Company for Company’s use in developing its own Customer-facing terms and conditions and privacy policy
governing Customer participation in the Fanfare Loyalty Program.
Multi-Currency Pricing (MCP): A Transaction in which Company displays the price of goods or services in a
currency other than, or in addition to, Company’s local currency. No Dynamic Currency Conversion (DCC) is
conducted.
NACHA: The national association that establishes standards, rules, and procedures governing the ACH Network,
including the ACH Rules.
270
Operating Guide OG201702
139
Negative Deposit: When the dollar amount of Credit Transaction Receipts exceeds the dollar amount of
Transaction Receipts submitted for processing.
No Signature Required Program: A specific program offering by a Credit Card Association that includes
required criteria that must be met by the Company in order to submit No Signature Required Transactions and
obtain some protection from Chargebacks.
No Signature Required Transaction: A Card Transaction that does not require Company to obtain a Cardholder
signature on a Transaction Receipt because the Company and the Transaction satisfy the requirements of a No
Signature Required Program.
Operating Guide: Servicer’s Operating Guide (formerly the “Merchant Operating Guide” or “MOG”), located at
www.merchantconnect.com (or such other website that Servicer may specify), that prescribes rules and procedures
Transactions and Company’s use of the Services. Servicer may amend the Operating Guide from time to time, which
amendments will be effective upon notice to Company.
Origination Point: either (i) the Company central origination location that transmits data between the Company and
the Hosted System or (ii) if the Company is integrated with the Gateway Services directly, the point-of-sale (POS),
property management system (PMS), terminal central location, equipment or system from which the Company
transmits data to or receives data from the Hosted System.
Payment Card: A Credit Card, Debit Card or Prepaid Card, as the context requires.
Payment Card Industry (PCI) Data Security Standard: The data security regulations, including maintaining
Cardholder account data in a secure environment, and other data security best practices endorsed by the major card
associations including Visa and MasterCard, as such may be amended from time to time. Visa requires that
Companies and their agents comply with CISP and MasterCard requires that Companies and their agents comply
with SDP.
Payment Device: Any device or method used for the purpose of obtaining credit or debiting a designated account
including a Credit Card, Debit Card, and any other financial transaction device or method, including an Electronic
Gift Card, check (whether converted into electronic form or used as a source document for an electronic fund
transfer), EBT Card, stored value card, “smart” card, or other device created to be used for the purpose of obtaining
credit or debiting a designated account.
Payment Network: Any Credit Card Association, EFT Network, ECS Association or automated clearing house
association, governmental agency or authority, and any other entity or association that issues or sponsors a Payment
Device or PayPal Payment Device or operates a network on which a Payment Device is processed.
Payment Network Regulations: The rules, operating regulations, guidelines, specifications and related or similar
requirements of any Payment Network.
Payment Services Entity: any third party (which may include Servicer if Company has engaged Servicer to provide
Payment Device or Transaction processing services) that Company has designated as a Destination Point for receipt
of Transactions and to which Servicer is certified to submit Transactions, including but not limited to, Transaction
Processors, Payment Networks, third party service providers, program managers and other third parties associated
with Payment Device acceptance or other programs of Company.
PayPal: PayPal, Inc.
PayPal Card: A valid payment card bearing the PayPal logo that is linked to a Customer’s account with PayPal.
Company may accept PayPal Cards in the same manner as any Credit Card.
PayPal Marks: The brands, emblems, trademarks, and/or logos that identify acceptance of PayPal Payment
Devices. The PayPal Marks are described in Appendix A of the PayPal Operating Regulations.
PayPal Mobile Transaction: A term used to encompass the various means by which a Customer with a PayPal
account may initiate a Transaction with a Company utilizing an application on the Customer’s mobile device that is
linked to the Customer’s account with PayPal. PayPal Mobile Transactions are described in further detail in the
PayPal Program Documents.
PayPal Payment Devices: PayPal Cards and PayPal Mobile Transactions.
PayPal Program: The program through which Companies may accept PayPal Payment Devices.
271
Operating Guide OG201702
140
PayPal Program Documents: The PayPal Operating Regulations, the PayPal Dispute Rules Manual, and the
PayPal Technical Specifications, including all appendices, exhibits, and attachments.
Person: Any individual, firm, corporation, business trust, partnership, governmental agency or authority, or other
entity and will include any successor (by merger or otherwise) of such entity.
Personal Identification Number (PIN): A number that must be entered by a Cardholder in order to complete
certain types of Transactions (e.g., online debit, EBT).
Petroleum Services: Services provided by Servicer to Companies engaging in Transactions related to petroleum
products or services, including SmartLink Services, Voyager Card Acceptance, and Wright Express Card
Acceptance.
PIN: See Personal Identification Number.
PIN Pad: A secure device with an alphanumeric keyboard which conforms with the Debit Card Rules and
applicable standards administered by the Payment Card Industry Security Standards Council, and requirements
established from time to time by Servicer, and through which a Cardholder may enter a PIN.
POS Device: A terminal, software or other point-of-sale device at a Company location that conforms to the
requirements established from time to time by Servicer and the applicable Payment Network.
Pre-authorized Order: A written or electronic authorization by a Cardholder allowing a Company to charge his or
her Card at a future date.
Prepaid Card: A card having available funds paid for in advance by the Cardholder.
Primary Company: The Merchant Identification Number (MID)/location originally enrolled for Electronic Gift
Cards and set up to be billed for the card orders placed or designated as the corporate or headquarter location.
Priority Check-Out and Express Return Service: A Visa service provided by lodging Companies, hotels, cruise
lines, or car rental companies that allows a Cardholder to authorize the use of their Card for payment of the total
obligation to the Company, with or without prior knowledge of the total amount, by signing a completed
agreement.
Program: The processing services and other related products and services received by Company pursuant to the
Agreement.
Proper Authorization: Receipt of an authorization approval code by use of a POS Device or the telephone
authorization center provided for authorization referrals.
Quasi-Cash Transactions: Transactions representing a Company’s sale of items that are directly convertible to
cash.
Recurring Payments: A Transaction charged to the Cardholder (with prior written or electronic permission to a
Company) on a periodic basis for recurring goods and services (e.g., monthly membership fees, utility bills,
subscriptions).
Referral Code: An Authorization Code indicating that the Issuer is requesting that the Company call the Voice
Authorization Center, which will either provide an Approval Code or ask the Company to request additional
information from the Cardholder (e.g., mother’s maiden name).
Remittance Data: Remittance information that is (i) supplied by a Healthcare Payer to Company, and (ii)
connected to each of the payments made to Company by a Healthcare Payer via the Transend Pay Services.
Rental Equipment: The Equipment specified on Schedule A (Schedule of Fees) to the Agreement or an Additional
Equipment Form that is rented by Company from Servicer on a month-to-month basis. For the avoidance of doubt,
Leased Equipment does not constitute Rental Equipment.
Reserve Amount: The amount established pursuant to the calculation set forth in the Agreement.
Retrieval Request: A request initiated by a Cardholder or Issuer that requires the Company to produce a legible
copy of the Cardholder’s signed Transaction Receipt within a specified period of time.
272
Operating Guide OG201702
141
Secure Handoff: A data string in a Biller Direct Services-specified format that is passed securely to the Biller
Direct Services platform after Company’s authentication of a Customer on Company’s website. The data passed to
the Biller Direct Services platform includes information used to identify the payer, amount due, and other data
relevant to the effective processing of the Transaction.
Service Provider: any entity that stores, processes, transmits or accesses Cardholder Data or Transaction
Information on behalf of Company or that provides software to Company for transaction processing, storage, or
transmission, except to the extent such services are performed by the entity in its capacity as a third-party contractor
of Servicer performing Servicer’s obligations under the Agreement.
Servicer: The entity that processes Transactions on behalf of the Company.
Servicer Debit System: Servicer’s electronic Debit Card Transaction processing system for provision of Debit
Card authorization, data capture, and settlement services.
Settlement: The process of submitting Transactions to the Servicer for processing.
Site Data Protection Program (SDP): MasterCard’s data security regulations to protect Cardholder account data
and other data security best practices. The exact requirements for SDP can be found at
https://sdp.mastercardintl.com.
SmartLink Services: Internet based operations for electronic payment processing utilizing Equipment or Software,
and including Software support and Equipment maintenance services.
Software: The software identified on Schedule A (Schedule of Fees) to the Agreement, including for SmartLink
Services, SmartLink Access Module or other programs supplied by Servicer and used for Internet-based electronic
payment processing.
Split Sale: A prohibited process by which Companies use multiple Transaction Receipts to avoid Authorization for
a single Transaction.
Supported Hardware: The equipment, systems and hardware, including POS Devices, necessary for Company to
make use of the Company’s selected Fanfare Services.
T&E Company: A Company whose primary function is to provide travel and entertainment related services.
Transaction: Any action between Company and a Cardholder using a Payment Device that results in activity on
the Cardholder’s account (e.g., payment, purchase, refund, or return).
Transaction Data: All data regarding the Transaction, including, without limitation, the Cardholder account
number, dollar amount of the Transaction, and the information stored in the Card’s Magnetic Stripe.
Transaction Date: The date that a Transaction occurs.
Transaction Processor: service bureaus and other Persons that provide transaction processing services, including
authorization and settlement services, to Company. The authorization services may support processing of credit,
debit, check or other types of transaction services as may be available through the Gateway Services. In order to
provide Gateway Services with respect to a Transaction Processor designated by Company for a Company Location,
Servicer must be certified with the selected Transaction Processor for the applicable Gateway Services.
Transaction Receipt: The paper or electronic record evidencing the purchase of goods or services from, or
payment to, a Company by a Cardholder using a Payment Device.
Transend Pay Services: Certain Services provided by Servicer to Companies in connection with Companies’
receipt of healthcare-related and benefit payments from a Healthcare Payer, as more fully described in the
Agreement.
Transend Pay Services Website: A Company-facing website hosted by Servicer’s vendor through which
Company can access Remittance Data.
UnionPay: China UnionPay Co., Ltd.
Visa: Visa U.S.A., Inc.
273
Operating Guide OG201702
142
Voice Authorization: An Authorization process whereby a Company calls the Voice Authorization Center and
provides Cardholder and purchase information over the telephone. The Voice Authorization Center then provides an
Authorization Code to the Company.
Voice Authorization Center: The center that conducts Voice Authorization for Card Transactions.
Voyager Card Acceptance: The program whereby Company may accept Voyager® commercial fleet cards.
Wireless POS Device: A POS Device that allows wireless processing.
Wireless Services: The wireless data services used by Company to submit Transactions at Wireless POS Devices to
Servicer in accordance with the requirements set forth in the Operating Guide.
Wright Express Card Acceptance: The program whereby Company may accept Wright Express commercial fleet
cards.
274
FINANCE DEPARTMENT
Aaron BeMiller, Director
Phone: 253-856-5260
Fax: 253-856-6255
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: July 5, 2017
TO: Operations Committee
FROM: Aaron BeMiller, Finance Director
SUBJECT: May Financial Report – Information Only
MOTION: Information Only
SUMMARY: The Finance Director will report out the May 2017 financial report.
BUDGET IMPACT:
BACKGROUND:
275
This page intentionally left blank
276
2017
Adj Budget
2017
YTD
2017
Est Actual
Variance
Favorable
(Unfavorable)
%Variance
Favorable
(Unfavorable)
Revenues 93,795,960 41,688,836 95,187,290 1,391,330 1.5%
Expenditures 96,229,260 32,699,056 95,413,210 816,050 0.8%
Net Revenues Less Expenditures (2,433,300) 8,989,781 (225,920) 2,207,380
Beginning Fund Balance 19,481,298 19,481,298
Ending Fund Balance 17,047,998 19,255,378
Ending Fund Balance Detail:
General Fund Reserves 14,056,428 16,839,688
14.6% 17.6%
Contingency for Unanticipated Costs 1,500,000 1,500,000
Strategic Opportunities Fund 425,000 425,000
Restricted for Annexation 1,066,570 490,690
Revenue Overview
Expenditures Overview
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund Overview
Summary
Analysis through May shows an overall positive budget variance of $2.2 million. The 2017 budget reflects an
expected use of $2.4 million of fund balance, including $2 million for Parks capital projects. The budgeted use of
fund balance is offset by the positive budget variance of $2.2 million, reducing the estimated actual use of fund
balance to $226k. General Fund Reserves are estimated to end the year at $16.8 million, or 17.6%.
Revenues are estimated to end the year at nearly $1.4 million (1.5%) higher than budgeted.
Through May, all departments are remaining fairly close to budget with an overall favorable budget variance of
$816k or 0.8%.
277
Revenue Categories 2017
Adj Budget
2017
YTD
2017
Est Actual
Variance
Favorable
(Unfavorable)
%Variance
Favorable
(Unfavorable)
Taxes:
Property 22,782,330 11,999,861 22,880,100 97,770 0.4%
Sales & Use 19,756,570 8,604,214 19,797,700 41,130 0.2%
Utility 18,947,950 8,848,341 19,031,000 83,050 0.4%
Business & Occupation 8,900,000 2,417,610 9,000,000 100,000 1.1%
Other 882,090 257,856 908,090 26,000 2.9%
Licenses and Permits 5,611,350 2,539,935 5,701,900 90,550 1.6%
Intergovernmental Revenue 7,699,970 2,461,987 7,883,000 183,030 2.4%
Charges for Services 5,117,170 2,906,350 5,524,000 406,830 8.0%
Fines and Forfeitures 1,565,970 795,914 1,518,200 (47,770)-3.1%
Miscellaneous Revenue 1,582,560 856,768 1,993,300 410,740 26.0%
Transfers In 950,000 - 950,000 -
Total Revenues 93,795,960 41,688,836 95,187,290 1,391,330 1.5%
Variance Notes
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund Overview - Revenues
Variance analysis for revenues is provided for particular line items or those in which the estimated actual
amount differs from the budgeted amount by at least 10% or minimum of $500,000.
Miscellaneous Revenue: Estimate year-end collections at $300k in excess of budget, largely due to increased
interest income ($30k) and reimbursements for police off-duty overtime ($270k).
278
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 4,829 5,464 5,578
February 5,138 5,225 5,024
March 6,546 7,439 7,586
April 16,091 14,962 17,008
May 6,600 7,175 6,492
June 5,578 6,225 0
July 6,545 6,040 0
August 5,395 5,068 0
September 6,531 6,810 0
October 16,476 15,667 0
November 6,303 6,086 0
December 9,602 7,635 0
Total 95,633 93,796 41,689
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 0 9 0
February 199 168 197
March 719 717 711
April 9,550 8,760 9,768
May 1,305 2,136 1,324
June 83 132 0
July 55 46 0
August 88 91 0
September 441 490 0
October 8,525 8,683 0
November 1,414 1,368 0
December 155 184 0
Total 22,534 22,782 12,000
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 1,461 1,507 1,686
February 2,026 1,974 1,986
March 1,519 1,448 1,550
April 1,575 1,457 1,547
May 1,739 1,641 1,836
June 1,236 1,347 0
July 1,560 1,614 0
August 1,798 1,785 0
September 1,594 1,676 0
October 1,691 1,660 0
November 1,822 1,812 0
December 1,793 1,834 0
Total 19,814 19,757 8,604
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund Revenues ($ in Thousands)
All Revenues Sources
Property Tax
Sales Tax
$0
$20,000
$40,000
$60,000
$80,000
$100,000
$120,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
17 Bud 16 Act 17 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
17 Bud 16 Act 17 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
17 Bud 16 Act 17 Act
279
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund Revenues ($ in Thousands)
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 2,115 2,083 1,842
February 1,708 1,632 1,829
March 1,584 1,570 1,739
April 1,597 1,823 1,873
May 1,491 1,457 1,566
June 1,368 1,341 0
July 1,563 1,731 0
August 1,442 1,403 0
September 1,584 1,636 0
October 1,432 1,524 0
November 1,499 1,421 0
December 1,107 1,327 0
Total 18,490 18,948 8,848
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 1 8 1
February 2 37 4
March 165 170 494
April 1,383 1,839 1,945
May 737 445 232
June 115 128 0
July 1,632 1,659 0
August 775 456 0
September 169 139 0
October 2,293 1,950 0
November 239 287 0
December 2,761 2,652 0
Total 10,273 9,770 2,675
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 1,252 1,454 2,049
February 1,203 1,013 1,008
March 2,559 2,699 3,092
April 1,986 1,512 1,876
May 1,328 1,446 1,534
June 2,775 3,030 0
July 1,734 1,501 0
August 1,290 1,323 0
September 2,743 2,760 0
October 2,534 1,990 0
November 1,329 1,068 0
December 3,787 2,743 0
Total 24,521 22,539 9,561
Utility Tax
Other Taxes
Other Revenues
(Intergovernmental, Licenses & Permits, Charges for Service, Fines & Forfeits, and Misc Revenues)
$0
$5,000
$10,000
$15,000
$20,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov
17 Bud 16 Act 17 Act
$0
$2,000
$4,000
$6,000
$8,000
$10,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
17 Bud 16 Act 17 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
17 Bud 16 Act 17 Act
280
Department 2017
Adj Budget
2017
YTD
2017
Est Actual
Variance
Favorable
(Unfavorable)
%Variance
Favorable
(Unfavorable)
City Council 352,110 162,540 346,400 5,710 1.6%
Mayor's Office/City Clerk 2,709,760 986,746 2,521,000 188,760 7.0%
Economic & Community Dev 6,394,650 2,318,150 6,156,000 238,650 3.7%
Finance 2,734,560 948,734 2,632,600 101,960 3.7%
Fire Contracted Services 3,603,110 1,353,784 3,420,500 182,610 5.1%
Human Resources 1,977,930 731,831 1,910,000 67,930 3.4%
Information Technology 517,310 237,649 551,000 (33,690)-6.5%
Law 1,737,080 638,793 1,667,900 69,180 4.0%
Municipal Court 3,181,510 1,279,403 3,169,200 12,310 0.4%
Parks, Recreation & Comm Svcs 17,229,170 6,326,259 16,838,500 390,670 2.3%
Police 36,976,600 15,314,690 37,262,700 (286,100)-0.8%
Public Works 1,294,960 512,840 1,256,900 38,060 2.9%
Non-Departmental 17,520,510 1,887,638 17,680,510 (160,000)-0.9%
Total Expenditures 96,229,260 32,699,056 95,413,210 816,050 0.8%
Variance Notes
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund Overview - Expenditures
Variance analysis for expenditures is provided for particular departments or those in which the estimated actual
amount differs from the budgeted amount by at least 10% or a minimum of $500,000.
None.
281
2015 2016 2017 2017 2017
Actual Actual Adj Budget YTD Est Actual
Beginning Fund Balance 11,312,140 15,372,499 19,481,298 19,481,298 19,481,298
Revenues
Taxes:
Property 22,015,525 22,534,441 22,782,330 11,999,861 22,880,100
Sales & Use 18,583,057 19,814,047 19,756,570 8,604,214 19,797,700
Utility 18,151,853 18,490,458 18,947,950 8,848,341 19,031,000
Business & Occupation 7,656,220 9,311,445 8,900,000 2,417,610 9,000,000
Other 1,023,500 961,833 882,090 257,856 908,090
Licenses and Permits 5,827,474 6,269,525 5,611,350 2,539,935 5,701,900
Intergovernmental Revenue 7,783,935 8,072,343 7,699,970 2,461,987 7,883,000
Charges for Services 5,814,133 5,363,205 5,117,170 2,906,350 5,524,000
Fines and Forfeitures 1,660,366 1,551,720 1,565,970 795,914 1,518,200
Miscellaneous Revenue 1,756,485 2,302,027 1,582,560 856,768 1,993,300
Transfers In 996,921 962,261 950,000 950,000
Total Revenues 91,269,469 95,633,303 93,795,960 41,688,836 95,187,290
Expenditures
City Council 298,884 337,355 352,110 162,540 346,400
Mayor's Office/City Clerk 2,211,861 2,339,581 2,709,760 986,746 2,521,000
Economic & Community Dev 5,345,212 5,521,764 6,394,650 2,318,150 6,156,000
Finance 2,419,039 2,751,128 2,734,560 948,734 2,632,600
Fire Contracted Services 3,513,988 3,556,484 3,603,110 1,353,784 3,420,500
Human Resources 1,039,875 1,733,010 1,977,930 731,831 1,910,000
Information Technology 456,328 509,617 517,310 237,649 551,000
Law 1,198,769 1,458,153 1,737,080 638,793 1,667,900
Municipal Court 2,988,951 3,079,215 3,181,510 1,279,403 3,169,200
Parks, Recreation & Comm Svcs 15,595,739 16,027,802 17,229,170 6,326,259 16,838,500
Police 32,992,234 35,155,894 36,976,600 15,314,690 37,262,700
Public Works 4,896,300 1,273,864 1,294,960 512,840 1,256,900
Non-Departmental 14,251,930 17,274,106 17,520,510 1,887,638 17,680,510
Total Expenditures 87,209,110 91,017,974 96,229,260 32,699,056 95,413,210
Net Revenues less Expenditures 4,060,359 4,615,329 (2,433,300) 8,989,781 (225,920)
Ending Fund Balance 15,372,499 19,987,828 17,047,998 28,471,079 19,255,378
Ending Fund Balance Detail:
General Fund Reserves 11,749,159 16,996,258 14,056,428 16,839,688
based on same year actuals/budget 13.5% 18.7% 14.6%17.6%
Contingency for Unanticipated Costs 1,500,000 1,500,000 1,500,000 1,500,000
Strategic Opportunities Fund 425,000 425,000 425,000 425,000
Restricted for Annexation 1,698,340 1,066,570 1,066,570 490,690
May 2017 Monthly Financial Report
City of Kent, Washington
General Fund
282
2015 2016 2017 % of
thru May thru May thru May Budget
Revenues
Taxes:
Property 11,409,299 11,772,361 11,999,861 227,500 1.9% 52.7%
Sales & Use 7,567,306 8,319,184 8,604,214 285,031 3.4% 43.6%
Utility 8,848,552 8,494,912 8,848,341 353,429 4.2% 46.7%
Business & Occupation 1,707,457 2,013,673 2,417,610 403,937 20.1% 27.2%
Other 286,781 274,000 257,856 (16,143) -5.9% 29.2%
Licenses and Permits 1,771,696 2,335,570 2,539,935 204,366 8.8% 45.3%
Intergovernmental Revenue 2,256,441 2,467,256 2,461,987 (5,269) -0.2% 32.0%
Charges for Services 2,454,567 2,219,129 2,906,350 687,221 31.0% 56.8%
Fines and Forfeitures 693,802 617,267 795,914 178,647 28.9% 50.8%
Miscellaneous Revenue 609,759 690,172 856,768 166,596 24.1% 54.1%
Transfers In - - -
Total Revenues 37,605,661 39,203,523 41,688,836 2,485,313 6.3% 44.4%
Expenditures
City Council 127,500 124,359 162,540 38,181 30.7% 46.2%
Mayor's Office/City Clerk 874,822 987,516 986,746 (770) -0.1% 36.4%
Economic & Community Dev 2,166,999 2,182,501 2,318,150 135,649 6.2% 36.3%
Finance 879,115 1,084,313 948,734 (135,579) -12.5% 34.7%
Fire Contracted Services 1,546,091 1,418,662 1,353,784 (64,877) -4.6% 37.6%
Human Resources 445,978 629,835 731,831 101,996 16.2% 37.0%
Information Technology 159,511 214,420 237,649 23,229 10.8% 45.9%
Law 497,332 601,759 638,793 37,034 6.2% 36.8%
Municipal Court 1,210,308 1,262,132 1,279,403 17,271 1.4% 40.2%
Parks, Recreation & Comm Svcs 6,106,389 6,250,873 6,326,259 75,385 1.2% 36.7%
Police 13,529,965 14,285,610 15,314,690 1,029,080 7.2% 41.4%
Public Works *1,900,324 674,462 512,840 (161,622) -24.0% 39.6%
Non-Departmental 81,282 484,715 1,887,638 1,402,924 289.4% 10.8%
Total Expenditures 29,525,614 30,201,155 32,699,056 2,497,901 8.3% 34.0%
* Most Public Works costs were moved to the Street Operating Fund effective January 1, 2016. Only costs
allocated to the Panther Lake annexation remain in the General Fund.
2016-17
Variance
May 2017 Monthly Financial Report
City of Kent, Washington
Year-to-Year Month Comparison
General Fund
283
2015 2016 2017 2017 2017
Actual Actual Budget YTD Est Actual
Operating revenues and expenditures only, capital is excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
Street Fund
Revenues 11,793,043 14,254,751 12,272,430 4,475,245 12,595,520
Expenditures 9,072,561 14,369,693 12,373,160 4,187,415 12,371,030
Net Revenues Less Expenditures 2,720,483 (114,942)(100,730)287,830 224,490
LEOFF 1 Retiree Benefits
Revenues 1,341,722 1,035,289 1,148,730 412,196 1,113,900
Expenditures 1,279,216 954,561 1,163,220 492,165 1,047,300
Net Revenues Less Expenditures 62,506 80,728 (14,490)(79,969)66,600
Lodging Tax
Revenues 279,878 294,859 281,000 93,264 302,700
Expenditures 257,164 219,989 278,060 68,598 218,800
Net Revenues Less Expenditures 22,714 74,870 2,940 24,666 83,900
Youth/Teen Programs
Revenues 894,592 911,855 928,600 440,909 927,200
Expenditures 920,380 942,000 942,000 942,000
Net Revenues Less Expenditures (25,788)(30,145)(13,400)440,909 (14,800)
Capital Resources
Revenues 20,561,359 21,126,646 12,738,960 5,806,155 13,869,150
Expenditures 11,538,631 15,566,060 15,498,530 1,121,260 15,170,000
Net Revenues Less Expenditures 9,022,728 5,560,586 (2,759,570)4,684,894 (1,300,850)
Criminal Justice
Revenues 4,753,967 4,873,770 4,126,810 1,989,437 4,758,000
Expenditures 2,965,408 3,156,208 4,553,970 1,607,072 3,120,000
Net Revenues Less Expenditures 1,788,558 1,717,562 (427,160)382,365 1,638,000
Community Development Block Grant
Revenues 808,466 839,392 1,056,260 142,611 1,056,260
Expenditures 808,466 839,392 1,056,260 293,948 1,056,260
Net Revenues Less Expenditures (151,338)
ShoWare Operating
Revenues 1,680,882 1,647,988 1,150,000 108,389 1,150,000
Expenditures 518,720 1,097,457 1,089,320 176,084 796,550
Net Revenues Less Expenditures 1,162,163 1,129,269 60,680 (67,695)353,450
Other Operating
Revenues 143,726 172,195 116,520 69,430 116,520
Expenditures 64,765 89,077 116,520 36,841 98,000
Net Revenues Less Expenditures 78,961 83,119 32,589 18,520
Special Revenue Funds
May 2017 Monthly Financial Report
Other Funds Overview (Revenues and Expenditures)
City of Kent, Washington
2015: Net revenues less expenditures include $2.27m street operating revenues returned from LID funded
projects. These funds have been allocated to projects in the 2016 budget.
2016: Includes street and transportation revenues and costs moved from the General Fund.
284
2015 2016 2017 2017 2017
Actual Actual Budget YTD Est Actual
Operating revenues and expenditures only, capital is excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
May 2017 Monthly Financial Report
Other Funds Overview (Revenues and Expenditures)
City of Kent, Washington
Water Utility
Revenues 20,140,494 21,140,582 21,586,500 8,849,641 21,925,000
Expenditures 17,620,354 18,076,074 24,298,380 6,457,001 24,068,490
Net Revenues Less Expenditures 2,520,140 3,064,508 (2,711,880)2,392,640 (2,143,490)
Sewer/Drainage Utility
Revenues 48,525,436 52,152,841 50,662,400 21,469,686 51,055,150
Expenditures 47,086,396 48,908,079 48,553,060 18,914,569 48,512,760
Net Revenues Less Expenditures 1,439,040 3,244,762 2,109,340 2,555,116 2,542,390
Solid Waste Utility
Revenues 608,685 600,000 250,446 600,000
Expenditures 365 471,179 578,510 179,892 464,010
Net Revenues Less Expenditures (365)137,506 21,490 70,555 135,990
Golf Complex
Revenues 2,661,490 2,475,682 2,871,410 760,414 2,305,000
Expenditures 2,867,873 3,188,762 2,808,280 1,066,343 2,810,000
Net Revenues Less Expenditures (206,383)(713,080)63,130 (305,929)(505,000)
Fleet Services
Revenues 4,538,925 4,769,001 4,715,900 2,019,013 4,752,000
Expenditures 3,195,504 3,974,431 5,685,510 1,442,620 4,058,000
Net Revenues Less Expenditures 1,343,420 794,570 (969,610)576,394 694,000
Central Services
Revenues 372,070 382,444 446,510 129,818 362,000
Expenditures 350,962 399,786 421,150 95,122 372,200
Net Revenues Less Expenditures 21,108 (17,342)25,360 34,696 (10,200)
Information Technology
Revenues 7,603,220 7,717,834 7,962,060 3,295,915 7,969,550
Expenditures 6,708,773 6,905,076 8,683,630 2,139,358 8,655,460
Net Revenues Less Expenditures 894,447 812,757 (721,570)1,156,557 (685,910)
Facilities
Revenues 5,429,412 5,556,854 4,728,530 1,906,940 4,768,750
Expenditures 5,527,155 4,881,741 5,002,870 1,638,868 4,977,300
Net Revenues Less Expenditures (97,744)675,113 (274,340)268,072 (208,550)
Unemployment
Revenues 397,641 420,226 121,700 81,285 130,000
Expenditures 98,860 126,718 168,810 31,990 145,000
Net Revenues Less Expenditures 298,781 293,508 (47,110)49,295 (15,000)
Enterprise Funds
Internal Service Funds
285
2015 2016 2017 2017 2017
Actual Actual Budget YTD Est Actual
Operating revenues and expenditures only, capital is excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
May 2017 Monthly Financial Report
Other Funds Overview (Revenues and Expenditures)
City of Kent, Washington
Workers Compensation
Revenues 1,095,382 1,251,586 1,023,800 432,839 1,023,800
Expenditures 681,822 1,436,775 1,397,280 444,133 1,121,680
Net Revenues Less Expenditures 413,560 (185,190)(373,480)(11,293)(97,880)
2015: Revenues reflect 2015-16 rate reduction, with GF savings going to the CR Fund to reduce the deficit.
Employee Health & Wellness
Revenues 10,487,102 10,688,926 10,432,600 4,539,723 10,680,000
Expenditures 11,298,096 12,130,696 11,936,000 5,801,558 12,205,930
Net Revenues Less Expenditures (810,993)(1,441,770)(1,503,400)(1,261,834)(1,525,930)
Liability Insurance
Revenues 1,135,932 1,498,137 1,249,000 535,923 2,012,000
Expenditures 1,187,054 2,145,627 1,863,100 2,114,463 2,150,000
Net Revenues Less Expenditures (51,122)(647,489)(614,100)(1,578,540)(138,000)
2017: YTD expenditures include claims paid for which reimbursement will be received.
Property Insurance
Revenues 582,938 628,105 554,820 233,306 558,000
Expenditures 471,003 445,135 500,810 241,693 532,100
Net Revenues Less Expenditures 111,935 182,969 54,010 (8,388)25,900
286
2015 2016 2017
thru May thru May thru May
Operating revenues and expenditures only, capital is excluded.
Street Fund
Revenues 3,400,493 4,975,359 4,475,245 (500,114)-10.1%
Expenditures 1,719,051 4,029,032 4,187,415 158,383 3.9%
Net Revenues Less Expenditures 1,681,442 946,327 287,830
2016 includes street and transportation revenues and costs moved from the General Fund.
LEOFF 1 Retiree Benefits
Revenues 290,558 19,224 412,196 392,972 2044.2%
Expenditures 538,944 370,080 492,165 122,085 33.0%
Net Revenues Less Expenditures (248,386)(350,856)(79,969)
2016 revenues reflect a timing difference because of revenues that were not booked until June.
Lodging Tax
Revenues 76,044 84,667 93,264 8,598 10.2%
Expenditures 20,790 66,982 68,598 1,616 2.4%
Net Revenues Less Expenditures 55,254 17,685 24,666
2016 expenditures reflect increased marketing activities.
Youth/Teen Programs
Revenues 414,492 409,783 440,909 31,125 7.6%
Expenditures - - -
Net Revenues Less Expenditures 414,492 409,783 440,909
Capital Resources
Revenues 464,487,632 5,616,887 5,806,155 189,268 3.4%
Expenditures 337,503 1,036,530 1,121,260 84,731 8.2%
Net Revenues Less Expenditures 464,150,129 4,580,357 4,684,894
Expenditures higher in 2015 and 2017 due to land purchases in Q1.
Criminal Justice
Revenues 1,538,580 1,951,443 1,989,437 37,994 1.9%
Expenditures 1,179,825 1,119,590 1,607,072 487,482 43.5%
Net Revenues Less Expenditures 358,755 831,852 382,365
2016 increase in revenues due to strong sales tax trends and an increase in seized assets.
Community Development Block Grants
Revenues 156,124 112,810 142,611 29,801 26.4%
Expenditures 241,904 266,484 293,948 27,465 10.3%
Net Revenues Less Expenditures (85,779)(153,674)(151,338)
Lag in grant reimbursement for expenses incurred.
ShoWare Operating
Revenues 81,282 350,138 108,389 (241,749)-69.0%
Expenditures 28,070 138,334 176,084 37,750 27.3%
Net Revenues Less Expenditures 53,212 211,804 (67,695)
Admissions Tax revenues received quarterly (April, July, September, January)
2016-17
Variance
Year-to-Year Month Comparison
May 2017 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Special Revenue Funds
287
2015 2016 2017
thru May thru May thru May
Operating revenues and expenditures only, capital is excluded.
2016-17
Variance
Year-to-Year Month Comparison
May 2017 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Other Operating
Revenues 2,220 21,880 69,430 47,550 217.3%
Expenditures 6,469 37,212 36,841 (371)-1.0%
Net Revenues Less Expenditures (4,249)(15,332)32,589
Combines several small programs, including City Art Program and Neighborhood Matching Grants
Water Utility
Revenues 6,619,388 7,264,015 8,849,641 1,585,626 21.8%
Expenditures 6,052,917 5,934,016 6,457,001 522,984 8.8%
Net Revenues Less Expenditures 566,471 1,329,998 2,392,640
Sewer/Drainage Utility
Revenues 19,260,635 19,851,459 21,469,686 1,618,226 8.2%
Expenditures 14,866,329 15,405,269 18,914,569 3,509,301 22.8%
Net Revenues Less Expenditures 4,394,306 4,446,191 2,555,116
Solid Waste Utility
Revenues 257,988 250,446 (7,542)-3.0%
Expenditures 163,106 179,892 16,785 9.3%
Net Revenues Less Expenditures 94,882 70,555
Solid Waste Utility established in 2016.
Golf Complex
Revenues 976,230 881,446 760,414 (121,032)-13.7%
Expenditures 1,029,821 1,138,064 1,066,343 (71,721)-6.3%
Net Revenues Less Expenditures (53,592)(256,618)(305,929)
2016 & 2017 revenues down due to inclement weather conditions in Q1.
Fleet Services
Revenues 1,906,223 1,995,530 2,019,013 23,483 1.2%
Expenditures 976,581 1,370,375 1,442,620 72,244 5.3%
Net Revenues Less Expenditures 929,642 625,155 576,394
Central Services
Revenues 167,815 162,492 129,818 (32,674)-20.1%
Expenditures 163,713 182,012 95,122 (86,890)-47.7%
Net Revenues Less Expenditures 4,101 (19,521)34,696
Information Technology
Revenues 2,902,258 3,120,802 3,295,915 175,112 5.6%
Expenditures 2,594,876 2,630,670 2,139,358 (491,312)-18.7%
Net Revenues Less Expenditures 307,382 490,132 1,156,557
Facilities
Revenues 2,199,639 2,235,059 1,906,940 (328,119)-14.7%
Expenditures 1,709,860 1,771,058 1,638,868 (132,190)-7.5%
Net Revenues Less Expenditures 489,779 464,001 268,072
Internal Service Funds
Enterprise Funds
288
2015 2016 2017
thru May thru May thru May
Operating revenues and expenditures only, capital is excluded.
2016-17
Variance
Year-to-Year Month Comparison
May 2017 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Unemployment
Revenues 165,117 155,758 81,285 (74,473)-47.8%
Expenditures 56,632 94,670 31,990 (62,680)-66.2%
Net Revenues Less Expenditures 108,484 61,088 49,295
Workers Compensation
Revenues 453,344 440,738 432,839 (7,899)-1.8%
Expenditures 363,549 440,991 444,133 3,142 0.7%
Net Revenues Less Expenditures 89,795 (253)(11,293)
Employee Health & Wellness
Revenues 4,336,559 3,970,816 4,539,723 568,907 14.3%
Expenditures 4,575,736 5,146,388 5,801,558 655,170 12.7%
Net Revenues Less Expenditures (239,177)(1,175,572)(1,261,834)
Liability Insurance
Revenues 573,057 475,294 535,923 60,630 12.8%
Expenditures 970,388 1,293,055 2,114,463 821,408 63.5%
Net Revenues Less Expenditures (397,332)(817,762)(1,578,540)
Property Insurance
Revenues 242,902 255,289 233,306 (21,983)-8.6%
Expenditures 249,893 245,771 219,073 (26,697)-10.9%
Net Revenues Less Expenditures (6,991)9,518 14,232
289
2017 2017 2017 2017
Beginning
Fund Balance
Estimated
Revenues
Estimated
Expenditures
Ending Fund
Balance
Operating funds only, capital funds are excluded.
General Fund 19,481,298 95,187,290 95,413,210 19,255,378
Street Fund 3,397,945 12,595,520 12,371,030 3,622,435
LEOFF 1 Retiree Benefits 1,174,261 1,113,900 1,047,300 1,240,861
Lodging Tax 469,387 302,700 218,800 553,287
Youth/Teen Programs 91,130 927,200 942,000 76,330
Capital Resources 11,277,727 13,869,150 15,170,000 9,976,877
Criminal Justice 5,697,717 4,758,000 3,120,000 7,335,717
Community Development Block Grants 1,056,260 1,056,260
ShoWare Operating 2,147,074 1,150,000 796,550 2,500,524
Other Operating 436,914 116,520 98,000 455,434
Councilmanic Debt Service 521,394 10,781,200 10,316,410 986,184
Special Assessments Debt Service 1,188,906 1,561,380 2,585,830 164,456
Water Utility 10,966,106 21,925,000 24,068,490 8,822,616
Sewer/Drainage Utility 11,295,548 51,055,150 48,512,760 13,837,938
Solid Waste Utility 302,528 600,000 464,010 438,518
Golf Complex (3,768,128) 2,305,000 2,810,000 (4,273,128)
Fleet Services 5,134,423 4,752,000 4,058,000 5,828,423
Central Services (63,568) 362,000 372,200 (73,768)
Information Technology 3,640,615 7,969,550 8,655,460 2,954,705
Facilities 2,340,684 4,768,750 4,977,300 2,132,134
Unemployment 1,332,446 130,000 145,000 1,317,446
Workers Compensation 2,356,624 1,023,800 1,121,680 2,258,744
Employee Health & Wellness 4,681,152 10,680,000 12,205,930 3,155,222
Liability Insurance 1,805,167 2,012,000 2,150,000 1,667,167
Property Insurance 531,548 558,000 532,100 557,448
Internal Service Funds
General Fund
May 2017 Monthly Financial Report
City of Kent, Washington
Fund Balances
Special Revenue Funds
Enterprise Funds
Debt Service Funds
290
Kent Council Operations Committee Consolidating Budget Adjustment
FINANCE DEPARTMENT
Aaron BeMiller, Director
Phone: 253-856-5260
Fax: 253-856-6255
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: July 5, 2017
TO: Operations Committee
FROM: Aaron BeMiller, Director
SUBJECT: Director’s Report – Information Only
MOTION: No motion: Non-action item
SUMMARY: The Finance Director will report out financial or operational item(s).
BUDGET IMPACT:
BACKGROUND:
291
This page intentionally left blank
292