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745 E. Germann Rd Attn: Joshua Adams
Chandler, AZ 85286 United States
Ship To Address
Joshua Adams
Ship To Contact
Attn: Joshua Adams PO Box 4008, MS 502
CHANDLER, AZ 85244 United States
Bill To Address
Joshua Adams
Bill To Contact
City of Chandler Parks and Recreation
Bill To Name
joshua.adams@chandleraz.gov
Email
4807822906
Phone
Joshua Adams
Contact Name
scott.yeske@activenetwork.com
Owner Email
Scott Yeske
Opportunity Owner
Sharon Kramer
Prepared By
USD
Currency
00130964
Quote Number
10/6/2023
Created Date
5850 Granite Parkway, Suite 1200
Plano, TX 75024
US
Company Address
Product
Product
Type
Description
Quantity
Fee
%
Total
Price
ACTIVENet - Staff Interface - Payment Processing
Fee - Credit Card
SaaS
Rates for organizations between $1,500,000 to
$8,000,000 in annual revenue through ACTIVE Net.
1
3.00
ACTIVENet - Staff Interface - Payment Processing
Fee - Electronic Cheque/Check Processing
SaaS
1
0.50
ACTIVENet - Staff Interface - Technology Fee
SaaS
Rates for organizations between $1,500,000 to
$8,000,000 in annual revenue through ACTIVE Net.
1
2.00
ACTIVENet - Public Interface - Online Transaction
Fee
SaaS
Rates for organizations between $1,500,000 to
$8,000,000 in annual revenue through ACTIVE Net.
1
5.00
ACTIVENet - Public Interface Fee Set up -
absorbed by client
SaaS
1
ACTIVENet - credit card refunds - flat fee
SaaS
1
0.10
ACTIVENet - ACH Remittance- Every 2 weeks
Service
ACTIVENet - ACH Remittance- Every 2 weeks
1
ACTIVENet - SaaS
ACTIVENet - Technical Services: 3rd Party
Payment Processing
Service
1
1,400.00
ACTIVENet - Functionality: Program & Activity
Registration
SaaS
ACTIVENet - Functionality: Program & Activity Registration
1
ACTIVENet - Public Access
SaaS
1
ACTIVENet - Functionality: FlexReg
SaaS
ACTIVENet - Functionality: FlexReg
1
ACTIVENet - Functionality: League Management
SaaS
1
ACTIVENet - Functionality: Facilities
SaaS
ACTIVENet - Functionality: Facilities
1
ACTIVENet - Functionality: Memberships
SaaS
1
ACTIVENet - Functionality: POS (Point-of-sale)
SaaS
ACTIVENet - Functionality: POS (Point-of-sale)
1
ACTIVENet - Functionality: Childcare
SaaS
1
ACTIVENet - Functionality: Donations &
Fundraising
SaaS
ACTIVENet - Functionality: Donations &
Fundraising
1
ACTIVENet - Gateway API Preferred Partner
SaaS
1
ACTIVENet - Verifone T650C RM Payment Device
Hardware ACTIVENet – VeriFone T650C RM Payment Device
12
5,814.00
ACTIVE Net Technical Services: 3rd Party Processing consists of
the following Services: remote configuration, testing & training
This 3rd Party Payment Processing service is intended to be
repurposed for onboarding Chandler onto ACTIVENet’s payment
processing via GP/Heartland
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
Active Network, LLC
Signature:
______________________________________________________
Name:
______________________________________________________
Title:
______________________________________________________
Date:
______________________________________________________
Signature:
______________________________________________________
Printed Name:
___________________________________________________
Title:
__________________________________________________________
Date:
__________________________________________________________
PO# (if applicable):
_______________________________________________
APPROVED AS TO FORM:
_______________________________________________
City Attorney
ATTEST:
_______________________________________________
City Clerk
Active reserves the right and may take additional measures to verify Client’s account which may consist of reviewing publicly available data and/
confirmation of Client provided information. Such verification measures will be completed in advance of remittance.
All fees described herein are in consideration of the Products that Active provides. Active and Client acknowledge that certain credit card network
rules and laws prohibit imposing a surcharge that is based on the type of payment method used (e.g., having a different fee for the use of a credit
card vs. debit card), and therefore, each agree not to impose such a surcharge on any End User.
The payment options we offer may include MasterCard, Visa, American Express and Discover.
If your order includes hardware, please note that all hardware orders have a 30-day return policy, and it is recommended that you inspect your
purchases upon delivery.
*Sales tax and shipping not included in total price. Sales tax and shipping, where applicable, will be added to your invoice.
Capitalized terms used in this Schedule and not defined have the meaning set forth in the General Terms or Product Terms, as
applicable.
Attachment: Heartland Merchant Processing and Equipment Agreement Packet
USD 158,720.00
Annual Projected
Contract Value
USD 7,214.00
Total Price
Quote Acceptance Information
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
Vice President of Sales
Kevin Farmer
October 19, 2023
A Global Payments Company
1 | Page
Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved.
Merchant Processing Agreement
Merchant Processing Agreement
Card Acceptance Policies | Procedures | Terms & Conditions
Welcome to Heartland Payment Systems®
Thank you for selecting Heartland Payment Systems® as your payments processor and welcome
to the Heartland family!
We look forward to bringing you worry-free payments processing, processing your payments
quickly, efficiently and accurately and providing full and honest disclosure with easy-to-read
statements so you can focus on what really matters most: improving and growing your business.
Heartland Payment Systems believes in fairness and transparency in credit and debit card
processing. That’s why we developed and adhere to The Merchant Bill of Rights®, a public
advocacy initiative that educates business owners about the complexities of card processing and
managing the associated costs.
The Merchant Bill of Rights calls for:
1. The right to know the fee for every transaction and who’s charging it.
2. The right to know the markup on Visa®, MasterCard®, American Express® and Discover
Network® fee increases.
3. The right to know all Visa, MasterCard, American Express and Discover fee reductions.
4. The right to know all transaction middlemen.
5. The right to know all surcharges and bill-backs.
6. The right to a dedicated local service representative.
7. The right to encrypted card numbers and secure transactions.
8. The right to real-time fraud and transaction monitoring.
9. The right to reasonable equipment costs.
10. The right to live customer support 24/7/365.
To learn more, visit MerchantBillOfRights.com
By using equipment or services by Heartland Payment Systems, you (the merchant) acknowledge
you have reviewed and understand the policies, procedures, terms and conditions outlined in this
document, and further agree the information you supplied to obtain such services is, and remains,
accurate.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
A Global Payments Company 2 | Page Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved. Merchant Processing Agreement
Merchant Processing Agreement
PLEASE READ SECTION 17 (“DISPUTE RESOLUTION”) CAREFULLY
AS IT RELATES TO ARBITRATION AND CLASS ACTIONS
The following are the Terms & Conditions of the Merchant Processing Agreement (“Agreement”):
1. Services
1.1
Merchant agrees that, during the Term of this Agreement, Heartland Payment Systems, LLC (“HPS®” or
“Heartland”) shall be the exclusive provider of the types of services received hereunder, including for all
electronic payments processing, for Merchant and each of its Locations, and it will not use the services of any
bank, corporation, entity or any other person other than HPS for the processing of bankcard Transactions,
unless otherwise approved by HPS.
1.2
Merchant acknowledges and agrees that HPS may provide payment processing services hereunder through
the Card Schemes and contracts or subcontracts with third parties engaged in the business of processing and
Authorization, and specifically authorizes such third parties, including the Card Schemes, to exercise all of the
rights of HPS hereunder, including but not limited to, the rights under Section 4.18 to debit Merchant’s Account
for all fees, costs, charges, and other liabilities. Upon request in writing by Merchant, HPS will identify the third
parties involved in Merchant’s processing.
1.3
Merchant agrees that it:
(a) shall comply with the Rules and this Agreement;
(b) shall cause, to the extent applicable, each of its Locations and Third Party Agents to comply with the Rules
and this Agreement; and
(c) is responsible for any non-compliance by its Locations and/or Third Party Agents.
2. Definitions
2.1
“ACH” means the Automated Clearing House service offered by the Federal Reserve.
2.2
“Agreement” means this Merchant Processing Agreement and the Merchant Application as may be amended
from time to time and any product-specific addenda executed by the parties for additional services. It includes
the application submitted and executed by the Merchant and HPS.
2.3
“Authorization” means the act of attempting to obtain an approval from the Card Issuer for an individual
Transaction or an EBT Transaction.
2.4
“Card” means:
(a) a valid credit, debit, charge or payment card in the form issued under license from a Card Scheme; or
(b) any other valid credit, debit, charge or payment card accepted by Merchant under this Agreement with HPS.
2.5
“Cardholder” means the person or Card member whose name is embossed upon the face of the Card.
2.6
“Card Issuer” means the financial institution or company that has provided a Card to the Cardholder.
2.7
“Card-Not-Present Transaction” means any Transaction for which required data is not electronically captured
by reading information encoded in or on the Card and includes without limitation mail order, telephone order
and Internet Transactions.
2.8
“Card Schemes” used interchangeably with Card Brands means VISA U.S.A., Inc., VISA International, Inc.,
MasterCard International, Inc., Discover Financial Services, American Express Travel Related Services
Company, Inc., PayPal® or any other payment network, as well as any other Card Issuer that provides Cards
that are accepted by Merchant under this Agreement with HPS and, with respect to on-line debit Card
Transactions the on-line Debit Networks.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
A Global Payments Company 3 | Page Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved. Merchant Processing Agreement
2.9
“Card Swipe” means the electronic capture of a Card’s magnetic stripe data or microprocessor chip by point
of sale equipment or other electronic payment device at the time of Transaction, and the inclusion of that data
with the electronic submission of the Transaction.
2.10
“Chargeback” means the procedure by which a Transaction (or disputed portion thereof) is disputed by a
Cardholder or Card Issuer or returned to HPS by a Card Issuer, for any reason.
2.11
“Credit Voucher” means a document or Transaction executed by Merchant evidencing any refund or price
adjustment relating to products or services to be credited to a Cardholder account.
2.12
“Debit Networks” means the Authorization networks utilized by Merchant for PIN debit Transactions.
2.13
“Discount” means the fee paid by Merchant to HPS expressed as a percentage of the Transaction amounts
processed by HPS.
2.14
“EBT” has the meaning assigned to it in Section 5.14.
2.15 “EBT Transaction” means any retail sale of Products, from a Merchant for which the customer makes payment
using an EBT Card presented to HPS for payment.
2.16
“EMV Card” refers to a form of smart payment card with technical standards originally created by Europay,
MasterCard and Visa (EMV) embedded with a microprocessor chip containing encrypted Cardholder account
information, which is readable by an EMV-enabled device. An EMV Card may be used by: (1) inserting it into
a card reader that is integrated with a point of sale system; or (2) by tapping it against a point of sale device’s
contactless reader. Visit http://www.emv-connection.com/ for more information on EMV.
2.17
“EMV Transaction” means the electronic acceptance of an EMV Card’s microprocessor chip data by point of
sale equipment or other electronic payment device at the time of the Transaction, and the inclusion of that data
with the electronic submission of the Transaction.
2.18
“HPS” means collectively Heartland Payment Systems, LLC, a registered Independent Sales Organization
(ISO) of Member Sponsor Banks, and a subsidiary of Global Payments Inc.
2.19
“Imprint” means:
(a) a physical impression of a Card on a Sales Draft manually obtained through the use of an imprinter; or
(b) the electronic equivalent obtained by swiping, inserting or tapping a Card using equipment and
electronically printing a Sales Draft.
2.20
“Internet Merchant” means a Merchant that accepts Transactions electronically via the World Wide Web
(www).
2.21
“Locations” means an entity that receives Authorization and settlement from or through Merchant pursuant to
a contractual arrangement with Merchant; including Merchant-owned Locations and Locations owned by third
parties for whom Merchant assumes complete responsibility, including but not limited to licensees, franchisees,
jobbers, and dealers.
2.22
“Merchant” generally means the party identified as the recipient of this Agreement and its principals and
owners and, as applicable each separate Location of Merchant.
2.23
“MCC” also known as “Merchant Category Code” is a 4 digit number used to describe the Merchant’s
primary business.
2.24
“Member Sponsor Bank” is a bank that has obtained a membership with the Card Brands to allow a processor
to access the Card Schemes.
2.25
“Merchant Servicer” means a Third Party Agent that:
(a) is engaged by a Merchant;
(b) is not a Member of the Card Schemes;
(c) is not directly connected to VISANet;
(d) is party to the Authorization and/or clearing message; and
(e) has access to Cardholder data, or processes, stores, or transmits Transaction data.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
A Global Payments Company 4 | Page Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved. Merchant Processing Agreement
2.26
“Non-Qualified” or “Non-Qualifying” means a Transaction that did not meet the Card Schemes’
Authorization and/or settlement requirements and is not eligible for the best rate possible. Some of these
Transactions may be prevented while other Non-Qualified Card Type Transactions are assessed higher rates
than preferred rates by the Card Schemes and may not be prevented.
2.27
“Outbound Telemarketing Transaction” means a Transaction in which a sale of Products results from a
Merchant initiated contact with a Cardholder via a telephone call, or a mailing (other than a catalog) that instructs
the Cardholder to call the Merchant.
2.28
“Pass Through” means charging the Merchant the precise amount of monies designated as interchange,
costs, dues, assessments and fees as per the Card Schemes. Pass Through means no mark-ups are taken
by the payment processor or any other party when interchange, dues, fees, costs and assessments are
collected from the Merchant.
2.29
“Payment Facilitator (PF)” is a Merchant of record who facilitates transactions on behalf of a sub-merchant
whose volume is less than USD 1,000,000 in MasterCard and Maestro volume combined.
2.30
“Payment Service Provider (PSP)” is an entity contracting with a Visa, Discover or American Express member
to provide payment services to sponsored merchants. The new term PSP replaces the old terminology IPSP
which now includes all commerce type aggregation, including face-to-face in addition to ecommerce merchant
aggregation.
2.31
“PCI DSS” means the Payment Card Industry Data Security Standard, the technical and operational
requirements of each of the data security compliance programs of the Payment Card Industry Security
Standards Council (“PCI SSC”) to protect Cardholder data.
2.32
“Products” means all goods and services that are sold or provided by Merchant.
2.33
“Recipient” means a recipient of benefit of an EBT Program (as defined in Section 5.14.1).
2.34
“Reserve Account” means a non-interest bearing account established by HPS based upon Merchant's
processing history and anticipated risk of loss to HPS.
2.35
“Rules” means the operating rules and regulations, requirements, and terms and conditions of the Card
Schemes or Debit Networks presently in effect and as they may be amended from time to time.
2.36
“Sales Draft” means the paper form, whether electronically or manually imprinted (solely to the extent
expressly permitted by the Rules), evidencing a Transaction.
2.37
“Service Providers (SP)” means non-members that are registered by MasterCard International
Incorporated as Service Providers to provide processing services to a member, including any member that is
registered by MasterCard International Incorporated as a SP to provide Third Party Processor (TPP) Program
Services to another member.
2.38 “Sub-merchant” is a customer conducting business through a third party relationship acting as a Payment
Facilitator (PF) or Payment Service Provider (PSP).
2.39
“Third Party Agent (TPA)” means entities that have been engaged by a Merchant or a member to perform
contracted services on behalf of that Merchant or member, including value added resellers (VARs) and payment
gateway providers.
2.40
“Transaction” means any retail sale of Products, or credit therefor, from a Merchant for which the customer
attempts to make payment using any Card presented to HPS for payment.
2.41
“Transaction Data” means any information or data collected, recorded, generated or otherwise created or
obtained by HPS in relation to the provision of Card services to Merchant hereunder, including without limitation,
Cardholder data.
2.42
“Virtual Terminal” means a credit Card processing equipment on a secure server on the Internet whereby
Merchant can key enter credit Card Transactions manually.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
A Global Payments Company 5 | Page Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved. Merchant Processing Agreement
2.43
“Voice Authorization” means an Authorization obtained by a direct-dialed telephone call.
3. Data Security Requirements
3.1
The PCI Security Standards Council (“PCI SSC”) was founded by American Express, Discover Financial
Services, JCB, MasterCard Worldwide and Visa, Inc. All five founders agreed to incorporate the PCI DSS as
the technical requirements of each of their data security compliance programs. The PCI SSC is responsible for
the Payment Application Data Security Standard (“PA-DSS”) and PIN Transaction Security Requirements for
PIN-Entry Devices (“PED”).
PCI DSS applies to HPS and any Merchant and Merchant Servicer that stores, processes or transmits
Cardholder information. HPS acknowledges that it has an obligation to comply with PCI DSS for Cardholder
information it possesses.
For the avoidance of doubt, as between Merchant, HPS and the Member Sponsor Bank, Merchant shall be
solely responsible for any unauthorized access to Cardholder information or Transaction Data while such
Cardholder Information or Transaction Data resides on Merchant’s or its Third Party Agent’s systems or
networks. Any such unauthorized access shall be considered an Event of Default.
All eligible Merchants, regardless of size, must comply with these standards. The following are standards that,
at a minimum, Merchant must comply with:
(a) Install and maintain a firewall configuration to protect Cardholder data.
(b) Do not use vendor-supplied defaults for system passwords and other security parameters.
(c) Protect stored Cardholder data.
(d) Encrypt transmission of Cardholder data across open, public networks.
(e) Use and regularly update anti-virus software or programs.
(f) Develop and maintain secure systems and applications.
(g) Restrict access to Cardholder data by business need-to-know.
(h) Assign a unique ID to each person with computer access.
(i) Restrict physical access to Cardholder data.
(j) Track and monitor all access to network resources and Cardholder data.
(k) Regularly test security systems and processes.
(l) Maintain a policy that addresses information security for all personnel.
More information, including the complete PCI DSS specifications can be found at:
https://www.pcisecuritystandards.org
Each of the Card Schemes has requirements based on PCI DSS that define a standard of due care and
enforcement for protecting sensitive information. Merchant must meet the compliance validation requirements
defined by the Card Schemes available at:
www.visa.com/cisp
www.mastercard.com/sdp
www.discovernetwork.com/fraudsecurity/disc.html
www.americanexpress.com/datasecurity - For American Express Direct merchants only
In cases where payment application software is used as a part of Authorization or settlement of Cardholder
data, Merchant must use a PA-DSS compliant payment application or have current proof of PCI DSS
compliance validation. The List of Validated Payment Applications may be found at:
https://zh.pcisecuritystandards.org/assessors_and_solutions/payment_applications?agree=true
In cases where PIN-based debit Transactions are processed, Merchant must use a compliant PIN Entry Device
(“PED”). The List of PCI SSC Approved PIN Transaction Security Devices may be found at:
https://listings.pcisecuritystandards.org/assessors_and_solutions/pin_transaction_devices?agree=true
Transactions must comply with the Triple Data Encryption Standard (TDES) and any successor technologies
or standards connected therewith.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04
A Global Payments Company 6 | Page Revised: 10/19/22
© 2022 Heartland Payment Systems, LLC. All rights reserved. Merchant Processing Agreement
In addition, Merchant must immediately notify HPS of its use of any agent or Merchant Servicer that will have
any access to Cardholder data and provide the full name and business address of such agent or Merchant
Servicer and any changes thereto.
3.2
A Card Scheme may require Merchant, by notice to either HPS, Member Sponsor Bank or Merchant, to conduct
an independent forensics review due to its data security procedures and/or Transaction activities. Upon notice
of such request from either a Card Scheme or HPS, Merchant, at its sole cost and expense, shall retain the
requisite forensics services and provide, through the requisite forensic review process, information as may be
required by the Card Scheme. If Merchant fails to retain the requisite forensics services, HPS may retain such
forensics services on Merchant’s behalf, and Merchant shall remain responsible for payment and/or
reimbursement to HPS of all cost and expense associated with such forensics services. In addition, Merchant
shall be solely responsible for the cost and expense associated with any changes to its systems or other
remediation required by the Card Scheme as a result of the forensic review process.
3.3
Merchant agrees that it will not introduce into HPS’s or Member Sponsor Bank’s system any virus, “time bomb,”
or any other contaminant, including but not limited to, codes, commands, or instructions that could damage or
disable HPS’s or Member Sponsor Bank’s system or property.
3.4 Merchant must keep all systems and media containing account, cardholder or transaction information (physical
or electronic, including but not limited to account numbers, card imprints, and terminal identification numbers)
secure and prevent access by or disclosure to anyone other than Merchant’s authorized personnel. Merchant
must destroy, in a manner that will render the data unreadable, all such media that Merchant no longer deems
necessary or appropriate to store (except for Sales Drafts maintained in accordance with this Agreement,
applicable law, or Rules). Merchant must also ensure proper destruction of Cardholder, Transaction or system
information (physical or electronic, including but not limited to account numbers, card imprints, and terminal
identification numbers) prior to selling, storing, or disposing of any terminal.
4. Rights, Duties, and Responsibilities of Merchants
4.1
Merchant shall make a selection on Card acceptance as follows: All Cards Accepted, Credit/Business Cards
Only and Consumer Prepaid/Debit (Check Cards) Only. At the time of signing of this Agreement, Merchant will
select one of the options, which will be indicated on this Agreement. Merchant shall honor the Card types
selected provided that the Card is valid and is presented to Merchant at the time of the sale by the Cardholder
or an authorized user of the Card. A Card is valid only if it is presented on or after the valid date, if any, and
before the expiration date shown on its face and the Card is used as payment for Products that are sold or
rendered by Merchant under the terms of this Agreement. Merchant represents and warrants to HPS that no
one other than Merchant has any claim against indebtedness submitted under this Agreement except as
authorized in writing by HPS and Member Sponsor Bank. Merchant hereby assigns to HPS and Member
Sponsor Bank all of its right, title, and interest in and to all indebtedness submitted hereunder, agrees that HPS
and Member Sponsor Bank have the sole right to receive payment on any indebtedness purchased hereunder,
and further agrees that Merchant shall have no right, title or interest in any such funds, including any such funds
held in a Reserve Account (as defined below).
4.2
In accordance with applicable law and the Rules:
(a) Merchant may establish a minimum sale amount as a condition for honoring credit Card Transactions, so
long as such minimum amount does not exceed $10.00. This amount shall be subject to automatic increase
as provided by applicable law. In accordance with applicable law and the Rules, a maximum sale amount
for Card Transactions may only be set by Merchants that are federal agencies or institutions of higher
learning;
(b) Except as specifically set forth in this Section 4.2, Merchant shall not establish a minimum or maximum sale
amount as a condition for honoring PIN Debit, Signature Debit (non-PIN Debit) and/or prepaid Cards.
Merchant shall not request or require that a Cardholder provide any personal information as a condition for
honoring PIN Debit, Signature Debit (non-PIN Debit) and/or prepaid Cards Transactions unless such
information is required to provide delivery of goods and services or Merchant has reason to believe the identity
of the person presenting the Card may be different from that of the Cardholder.
4.3
Merchant shall complete a Sales Draft or Credit Voucher, in a form approved by HPS and in compliance with
the Rules, which shall be legible and adhere to or contain the following:
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(a) the Merchant and Cardholder’s electronically printed copy shall not contain the expiration date and should
only display in legible print the last four digits of the Card number. Any other portion of the Card number
must be represented by fill characters such as “x”, “*”, or “#”;
(b) the information embossed on the Card being presented;
(c) the date of the Transaction;
(d) a brief description of the Products involved in detail sufficient to identify the Transaction;
(e) the total amount of the sale or credit (including any applicable taxes) or the words “deposit” or “balance” if
full payment is to be made at different times on different Sales Drafts;
(f) the city and state where such Transaction occurred; and
(g) if required by the applicable Card Scheme, the signature of the Cardholder of the Card.
In cases where prompted by the equipment to do so, Merchant shall key enter the last four digits of the Card to
verify the contents of the magnetic stripe and shall deliver a completed copy of the Sales Draft to the Cardholder.
This provision shall not apply to those Transactions specifically excluded from these requirements by the Rules.
4.4
For all mail or telephone orders, Merchant shall type or legibly print on the signature line of the Sales Draft the
letters or words indicated: “Mail Order,” “MO,” or “Telephone Order,” “TO.”
4.5
In the event a Transaction cannot be completed via a Card Swipe or EMV Transaction, then an alternate form
of payment should be requested. Merchant shall not manually key enter unembossed cards (unless Merchant
participates in the CVV2 with the Magnetic Stripe Failure process) or manually write the account number on a
paper draft. Only a Card Swipe or EMV Transaction is acceptable by the Card Scheme as proof that the Card
was present at the time of the Transaction.
4.6
Merchant’s policy for the exchange or return of goods sold and adjustment for services rendered shall be
established and posted in accordance with applicable regulations of the applicable Card Scheme and laws.
Merchant agrees to disclose, if applicable, to a Cardholder before a Card sale is made, that if merchandise is
returned:
(a) no refund, or less than full refund, will be given;
(b) returned merchandise will only be exchanged for similar merchandise of comparable value;
(c) only a credit toward purchases will be given;
(d) a restocking fee will be charged; or
(e) special conditions or circumstances apply to the sale (e.g. late delivery, delivery charges or other non-credit
terms).
If Merchant does not make these disclosures, a full refund in the form of a credit to the Cardholder’s Card
account must be given. In no circumstances shall any cash refunds be given on any item originally charged to
a Card.
The foregoing disclosures must be made on all copies of Sales Drafts across all Card Schemes issued at the
time of the sale in letters approximately ¼ inch high in close proximity to the space provided for the Cardholder’s
signature. In circumstances where credits or adjustments are due, Merchant shall prepare and deliver to the
Cardholder a properly completed Credit Voucher. Merchant will input Credit Vouchers into the equipment on
the day of the credit Transaction for inclusion in Merchant’s daily transmission of Transactions.
4.7
Merchant shall not transmit for processing and payment any Transaction(s) representing the refinancing of an
existing obligation of a Cardholder including, but not limited to, obligations:
(a) previously owed to Merchant;
(b) arising from the dishonor of a Cardholder’s personal check; or
(c) representing the collection of any other pre-existing debt.
4.8
Merchant shall not, under any circumstances, (a) disclose, sell, purchase, provide or exchange, or (b) use for
any purpose other than completing a Transaction, any Cardholder’s account number or any credit information
relating to any Cardholder’s account or any Sales Drafts or Credit Vouchers that may have been obtained or
imprinted with any Card to any person other than HPS, except as expressly authorized in writing by the
Cardholder, HPS, or as required by law.
4.9
On the date of the Transaction and prior to honoring any Card, Merchant agrees to obtain an Authorization on
all Transactions for the total amount of the Transaction by physically sliding, dipping, or inserting the Card
through the Card reader of the equipment (or tapping the near-field communication (“NFC”) enabled Card in
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the case of an NFC-enabled Transaction) thereby causing the equipment to electronically read a magnetically
encoded stripe or EMV chip on the reverse side of each Card, except for Card-Not-Present Transactions, which
are governed by Section 4.15 hereof.
Any Transaction that cannot be authorized electronically through the equipment or manually key entered is
subject to a Voice Authorization call. Merchant shall obtain an Authorization prior to completing a Card-Not-
Present Transaction.
Any Transaction that is not properly authorized is made with full recourse and may be charged back to
Merchant; furthermore, any Card-Not-Present Transaction will be subject to additional charges for a Mid-
Qualifying or Non-Qualifying Transaction. An Authorization does not constitute a guarantee of payment, only
an indication of available credit, and may be subject to dispute or Chargeback.
Except at such times as the equipment may be inoperable, Merchant shall not engage in soliciting or accepting
Card-Not-Present Transactions without the prior written permission of HPS, and then only for such Products
and in such amounts as stated in such written permission. Merchant shall not utilize the service of any third
party (e.g. telemarketer) to solicit or accept orders or engage in Outbound Telemarketing Transactions.
4.10
MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT CONSTITUTE:
(A) A WARRANTY THAT THE PERSON PRESENTING THE CARD IS THE RIGHTFUL CARDHOLDER; OR
(B) A PROMISE OR GUARANTEE BY HPS THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO
MERCHANT FOR THE AUTHORIZED TRANSACTION. AN AUTHORIZATION DOES NOT PREVENT A
SUBSEQUENT CHARGEBACK OF AN AUTHORIZED TRANSACTION PURSUANT TO THIS
AGREEMENT.
4.11
When possible to do so, Merchant shall utilize the equipment as the exclusive method for obtaining
Authorization codes. Voice Authorization service is for use during equipment downtime periods only. Use of
Voice Authorization systems will result in additional charges for such use being assessed to Merchant based
on HPS then-current rates. Merchant will record for every Transaction applicable Authorization and reference
numbers on each Sales Draft to facilitate the timely and accurate retrieval of information as requested by HPS.
4.12
Merchant shall use its best efforts, by reasonable and peaceful means, to recover the Card when:
(a) Merchant is advised to recover the Card in response to an Authorization request; or
(b) Merchant has reasonable grounds to believe that the Card is counterfeit, fraudulent or stolen. Merchant
shall take no action to recover a Card that may result in a breach of the peace.
4.13
Merchant may utilize the equipment’s keypad to input Card number(s) in the following instances:
(a) Card-Not-Present Transactions; or
(b) the magnetic stripe on a Card is damaged and therefore unreadable by the equipment; or
(c) the equipment’s Card reader is inoperative, in which case Merchant shall immediately advise HPS.
4.14
If a Merchant is approved as an Internet, Mail Order or Telephone Order Merchant, the following sections of
this Agreement shall not apply: 4.3 (b) and (g), 4.5, 4.9, 4.12, and 4.13 and such sections shall be replaced by
the following:
(a) Merchant shall obtain an Authorization for all Transactions. Any Transaction that cannot be authorized
electronically is subject to a Voice Authorization call. Any Transaction that is not properly authorized is
made with full recourse and may be charged back to the Merchant. An Authorization does not constitute a
guarantee of payment, but may be subject to dispute or Chargeback;
(b) Merchant shall print legibly the following information on the Sales Draft; Merchant’s name and address;
(i) the Card Issuer’s name;
(ii) the truncated account number of the Card;
(iii) the expiration date of the Card and any effective date on the Card; and
(iv) the Cardholder’s name. Merchant shall be deemed to warrant to HPS the Cardholder’s identity as an
authorized user of the Card;
(c) Merchant is required to use a real-time Internet payment gateway authorized in advance by HPS to obtain
Authorization codes and process Transactions;
(d) Internet Transactions are Card-Not-Present Transactions and must be performed on the Internet by the
customer; or
(e) In the case of a Virtual Terminal, the Internet Merchant Store Front (the customer interface) must be Web
Hosted so that the credit Transactions are received over a secure socket layer (SSL) by the Merchant;
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(f) In any Card-Not-Present Transaction, as a material part of the consideration for HPS to enter into this
Agreement, Merchant accepts such Transactions solely at its own risk, and further assumes all risks of loss
attendant to non-imprint Card-Not-Present Transactions.
(g) Internet Merchant Website Requirements. Internet Merchant shall use the eCommerce Gateway solely for
Merchant’s internal business purposes and shall not allow any third party use of or access to the
eCommerce Gateway. An Internet Merchant agrees to adhere to those Rules governing electronic
commerce as well as HPS requirements as set forth herein; which include, but are not limited to ensuring
the following information is included or properly referenced on the Internet Merchant website:
(i) contact information including: customer service telephone number, email and URL addresses, legal
name and permanent corporate address including the country of domicile which should be located on
the check-out screen, along with the final purchase amount or those pages accessed by a Cardholder
during the checkout process;
(ii) a complete description of the Products offered for sale and related prices, form of currency, as well as
how to complete a purchase and the point at which the purchase is complete;
(iii) include a method by which the Cardholder can affirmatively consent to the Transaction (i.e., an “order
now” or “purchase now” option);
(iv) provide clear disclosure of all material terms of the Transaction: (i.e., all sales are final, applicable
restocking fees, returns, etc.);
(v) shipping and delivery policies will be clearly and accurately stated;
1) if providing age restricted products/services, Merchant shall clearly state the age restrictions on the
website and implement an age verification process;
(vi) refund and returned merchandise policies and terms of use;
(vii) Merchant’s privacy policy clearly and accurately in accordance with all applicable laws and the Rules,
including, but not limited to, the content, location and accessibility of its privacy policy;
(viii) security policy indicating that:
1) the transmission of payment and will adhere to the PCI DSS for storing and transmitting Cardholder
data;
2) Merchant remains fully responsible and liable for the security of Transaction and personal data
submitted to and/or processed through your website or as may otherwise be in Merchant’s or its
agents or vendors’ control, including implementing fraud prevention measures as required by law
or industry regulation;
3) Merchant will use Cardholder Data for the sole purpose of supporting payment for and delivery of
Merchant’s goods and services and consistent with Merchant’s privacy policy;
4) Merchant will maintain the security of any and all passwords, ID number or other access control
methods to use the e-Commerce Payment Gateway; and
(ix) any other legal policies, including export control and terms of use.
4.15
The following additional terms apply to Card-Not-Present Transactions:
(a) Merchant shall use, and retain for not less than one year, proof of a traceable delivery system utilized for
the delivery of Products to customers.
(b) Merchant shall use an address verification service to verify each Transaction.
(c) Merchant must utilize if available through its gateway a Payer Authentication Program. This program
identifies the Cardholder by authenticating their personal PIN entry. Specific programs could include
Verified by VISA and MasterCard Secure Code.
(d) Except where Merchant has specified future delivery on the Application, a customer’s Card shall not be
debited until the Product purchased has been shipped.
(e) Upon request by HPS, Merchant shall provide copies of all advertisements, catalogues, brochures or other
materials used to solicit mail or telephone orders and any forms used in recording or transmitting orders.
4.16
In all cases, unless stipulated otherwise in the Merchant Processing Agreement, the shipment of goods to a
Cardholder will be no later than the business day following the date on which that Transaction was transmitted
to HPS for processing.
4.17
Merchant agrees to electronically deposit Sales Drafts and Credit Vouchers no later than the day of the
Transaction. The time of receipt by HPS will affect the timing of payment to Merchant. If Merchant fails to submit
Transactions on a timely basis as provided herein, Merchant will be charged and agrees to pay the additional
fees assessed to HPS by the Card Schemes.
4.18
Merchant shall at all times maintain a direct deposit Account (the “Account” or “DDA”) in good standing at a
bank that is a Receiving Depository Financial Institution (RDFI) of the Federal Reserve Bank ACH System or
other ACH settlement network. Merchant represents and warrants to HPS that: (a) the Account will always be
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in the same legal and DBA (if applicable) name as Merchant’s name on the Merchant Application; (b) Merchant
will own and maintain control of the Account and will keep such Account open at all times during the term and
as long as any Reserve Account is in effect; and, (c) the Account will not be associated with any merchant
processing activity that is illegal or prohibited by the Rules or applicable law, including without limitation
merchant processing activity associated with other accounts and/or processors. Merchant agrees that all credits
for collected funds and debits for fines, fees, Chargebacks, Credit Vouchers, payments and adjustments and
other amounts due under the terms of this Agreement (including but not limited to attorney’s fees and early
termination charges) may be made to the Account. Merchant shall not close, restrict or change the Account
without prior written approval from HPS. Merchant agrees to pay HPS a twenty-five dollar ($25.00) handling fee
to change the DDA information and a twenty-five dollar ($25.00) fee on all returned ACH items. Merchant is
solely liable for all fees and all overdrafts, regardless of cause. HPS shall have the unlimited right to debit,
without prior notice, any DDA containing funds for the purpose of satisfying any liability incurred by or on behalf
of Merchant.
4.19
Merchant agrees to retain original Card Scheme Sales Drafts and Credit Vouchers as specified by the Rules
and Merchant assumes liability for all fines, fees, failures, charges and penalties charge to Merchant or HPS
for a failure to comply therewith.
Such documents shall be stored in a secure manner permitting retrieval and submission of legible copies on
the same day that Merchant receives a request from HPS. Since a Card Issuer may over a period of time
request duplicate copies of the same Sales Draft, Merchant must retain at least one legible copy of each Card
Transaction.
Failure to provide HPS with requested documentation within five (5) business days after receipt of such request
may result in the Transaction being charged back to the Merchant and HPS shall have the right to debit the
Account for the full amount of the Transaction. Merchant agrees that it shall destroy material containing
Cardholder account information in a manner that renders the data unreadable.
4.20
Merchant shall not submit any Transaction for processing for the purpose of obtaining or providing a cash
advance, or make a cash disbursement to any other Cardholder (including Merchant when acting as a
Cardholder), or receive monies from a Cardholder and subsequently prepare a credit to Cardholder’s account.
4.21
As partial consideration for this Agreement, Merchant expressly authorizes HPS to change the financial
institution providing settlement services to Merchant. Merchant will execute all necessary documents enabling
HPS to effect such change.
4.22
Merchant shall provide HPS with immediate notice of its intent to:
(a) transfer, sell or liquidate any substantial part of its assets;
(b) change the basic nature of its business, including selling any Products not related to its current business;
(c) change ownership or transfer control of its business; or
(d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not
a party to this Agreement assumes more than a ten percent (10%) interest in Merchant’s business.
Merchant also shall provide HPS with prompt written notice of any material changes regarding any information
provided in the Merchant Application, including Merchant’s address, ticket size or monthly volume.
Merchant and principal owner(s) identified on an approved Merchant Application and any new owner of
Merchant or successor Merchant shall be jointly and severally liable to HPS and remain liable for any and all
losses, costs and expenses suffered or incurred by HPS in accordance herewith, unless the original Merchant
or successor thereof is released in writing by HPS.
4.23
Merchant agrees to pay HPS the face amount of any Transaction processed by HPS pursuant to this Agreement
whenever any Card Transaction is reversed in accordance with the Rules, any state or federal statute,
regulation, court or administrative order or terms of this Agreement, or in the event of a Chargeback.
4.24
Merchant agrees to pay Member Sponsor Bank and/or HPS any fees, fines, penalties or assessments imposed
directly or indirectly on Member Sponsor Bank and/or HPS by a Card Scheme resulting from all acts or
omissions of Merchant, including without limitation, any fines, fees, penalties or assessments (such as Card
replacement cost) imposed by Card Schemes in relation to Merchant’s or a Third Party Agent’s non-compliance
with PCI DSS and/or Rules.
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4.25
HPS agrees to use commercially reasonable efforts to mail or electronically transmit all Chargeback
documentation to Merchant promptly at Merchant’s address shown in the Merchant Application; however, HPS
may at any time without prior notice debit Merchant’s DDA or any other Merchant Account for Chargebacks
without prior notice in accordance with this Agreement.
If Merchant notifies HPS after such time, HPS may, in its discretion, assist Merchant, at Merchant’s expense,
in investigating whether any adjustments are appropriate and whether any amounts are due to or from other
parties; however, HPS shall not have any absolute obligation to investigate or effect any such adjustments. Any
voluntary efforts by HPS to assist Merchant in investigating such matters shall not create an obligation to
continue such investigation or any future investigation. Merchant must provide all information requested by HPS
by the time specified in a request for information. Failure to respond within the specified time shall constitute a
waiver by Merchant of its ability to dispute or reverse a Chargeback or other debit, and Merchant shall be solely
responsible where it fails to timely provide information concerning any Chargeback.
If HPS elects, in its sole discretion, to take action on a Chargeback after the time specified to respond has
expired, Merchant agrees to pay all costs incurred by HPS. Merchant agrees to pay HPS a processing fee for
Sales Draft retrieval requests at HPS’ discretion.
4.26
Merchant agrees to reimburse HPS for the amount of the Sales Draft in the event of a Chargeback together
with a handling fee for each Chargeback, which fee may be amended from time to time. Merchant hereby
irrevocably authorizes HPS to debit without notice Chargebacks and Chargeback handling fees and all other
amounts due hereunder from Merchant’s daily deposit and if such collection is inadequate, agrees to reimburse
HPS immediately for any shortage that occurs as a result of such charges.
4.27
Merchant will be subject to debit for a Chargeback in accordance with the Rules in effect at the time of the
Chargeback. The basis for Chargebacks and the rules for their processing are governed by the Rules. However,
all disputes that are not resolved through established Chargeback procedures shall be settled between
Merchant and the Cardholder, and Merchant will indemnify HPS for all expenses, including reasonable
attorneys’ fees, that may be incurred as the result of any Cardholder claim that is pursued outside the Rules.
Merchant acknowledges and agrees that it is bound by the rules of the Card Schemes with respect to any
Chargeback.
Merchant further acknowledges that it is solely responsible for providing HPS and Member Sponsor Bank with
any available information to re-present a Chargeback and that, regardless of any information it provides or does
not provide HPS and Member Sponsor Bank in connection with a Chargeback, or any other reason, Merchant
shall be solely responsible for the liability related to such Chargeback. If any such amount is uncollectible
through withholding from any payments due hereunder or through charging Merchant’s Account or the Reserve
Account, Merchant shall, upon demand by HPS, pay HPS the full amount of the Chargeback.
4.28
Merchant shall not accept or deposit any fraudulent Transaction, or any Transaction about which Merchant has
knowledge or notice of circumstances that would impair the validity of the Transaction or the indebtedness
thereunder or its collectability.
4.29
Merchant unconditionally represents and warrants to HPS that all Sales Drafts submitted to HPS hereunder will
represent the indebtedness of the Cardholder with whom Merchant has completed a Transaction in amounts
set forth therein for Products only and shall not involve any element of credit for any other purposes, and shall
not be subject to a defense, dispute, offset or counterclaim that may be raised by Cardholder under the Card
Schemes Rules, the Consumer Credit Protection Act (15 USC § 1601) or other relevant state or federal statute
or regulation. Further, Merchant warrants that any Credit Voucher that it issues represents a bona fide refund
or adjustment on a Transaction by Merchant with respect to which a Sales Draft has been accepted by HPS.
4.30
Merchant shall not, under any circumstances, present for processing or credit, directly or indirectly, a
Transaction that originates with any other Merchant or any other source.
4.31
Merchant shall not deposit duplicate Transactions. Merchant shall be debited for any adjustments for duplicate
Transactions and shall be liable for any Chargebacks which may result therefrom.
4.32
Merchant shall not initiate a Transaction in an attempt to collect a Chargeback.
4.33
To the extent legally permitted, Merchant shall give HPS immediate written notice of any complaint, subpoena,
civil investigative demand or other process issued by any state or federal governmental entity that alleges,
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refers or relates to any illegal or improper conduct of Merchant, its owner(s) or other entity under common
ownership or control. Failure to give such notice shall be deemed to be a material breach of this Agreement.
4.34
Merchant must obtain final approval by HPS of Debit Network sponsorship prior to submitting any debit
Transaction.
4.35
Merchant shall not be assessed a Chargeback fee for the first three (3) Chargeback requests processed in any
twelve-month period beginning with the Merchant’s anniversary date. Once three Chargeback requests have
been submitted by the Card Scheme or a card issuer in any such twelve-month period, HPS shall bill all
applicable Chargeback fees. For purposes of this Section 4.35, the anniversary date shall be the date of
Merchant’s first deposit with HPS unless otherwise designated by HPS.
4.36
HPS shall have no liability for customer data that is lost or stolen from the Merchant’s POS system or equipment
and Merchant shall indemnify HPS from any claim or loss arising out of or relating to such lost or stolen data.
4.37
Merchant shall ensure HPS has the correct business taxpayer ID (“TIN”) and legal name on file for Form 1099-
K tax reporting purposes. Any Merchant reporting an invalid TIN and legal name combination is subject to a
backup withholding amount as defined by IRS and state regulations.
4.38
Merchant shall at all times comply with the Rules, as well as all applicable federal, state and local rules and
regulations.
4.39
Merchant, at its own expense, will have installed and will maintain the point-of-sale equipment, unless otherwise
agreed to by the parties in writing. Each equipment type installed at a Location must be compatible with HPS’
System and HPS has the right to test the equipment to assure compatibility. Merchant will submit each
equipment type and all new core hardware, and any releases of modifications to the implementation software,
to HPS for quality assurance testing at least thirty (30) days prior to the equipment, hardware or software’s first
use at a Location; provided however, both parties acknowledge that the quality assurance test may take less
than thirty (30) days and HPS will use commercially reasonable efforts to accomplish the testing as soon as
practicable. Quality assurance testing is applicable to each implementation software release for each equipment
type.
If Merchant changes the method used to communicate with HPS’ System from one form of technology to
another, e.g. dial to frame relay, once any necessary quality assurance testing has been completed, Merchant
will arrange for, with the assistance of HPS, if necessary, the equipment to be connected to HPS and then
tested to ensure that the new method of communication works properly, which test will be conducted in
accordance with Merchant’s and HPS’ procedures and paid by each party, respectively. Once the new
technology has been tested and approved, it will not be necessary for each Location that adopts the new
technology to perform the testing referred to in this paragraph.
4.40
Merchant shall assume responsibility for managing the repair of problems associated with Merchant’s own
telecommunications and processing system (both hardware and software), including terminals.
4.41
Special pricing through an agreement between HPS and a Merchant association shall apply to Merchant
members in good standing of such Merchant association; any special pricing may be discontinued without
notice.
4.42
Merchant agrees to provide HPS such financial statements and other information concerning Merchant as HPS
may reasonably request from time to time. Merchant agrees that HPS, or its duly authorized representative,
may examine Merchant’s books and records related to its receipt of the services from HPS hereunder, including
records of Transactions submitted hereunder.
4.43
Merchant shall not engage in any services that require registration with the applicable Card Schemes as a
Payment Service Provider (PSP) or Payment Facilitator (PF) without prior written approval from HPS. In the
event Merchant is registered as a PSP/PF, Merchant agrees to promptly disclose to all Sub-merchants any new
or increased Card Scheme related dues, assessments and fees, including but not limited to Convenience fees,
in accordance to the contracted services performed by the Merchant. For the avoidance of doubt, all Service
Providers, Third Party Agents, Payment Service Providers, and Payment Facilitators must comply with all
Rules, including those found at the following websites (or their successor websites):
•
https://usa.visa.com/dam/VCOM/download/merchants/third-party-agent-due-diligence-risk-standards.pdf
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•
https://www.mastercard.us/content/dam/public/mastercardcom/na/global-site/documents/mastercard-
rules.pdf
4.44 Merchant must meet requirements as defined by the Card Schemes. Information is available at:
●
www.visa.com
●
www.mastercard.com
●
www.discovernetwork.com
●
www.americanexpress.com/merchantopguide - For American Express OptBlue Program merchants only.
●
www.americanexpress.com - For American Express Direct merchants only.
5. Debit Card Processing; EBT Services
If Merchant elects to receive debit Card processing services, the following terms will apply:
5.1
Merchant understands and agrees that HPS and any bank which is a party to this Agreement (or to which this
Agreement is assigned) is a sponsored affiliate or member of each Debit Network and HPS is a service provider
for processing Merchant’s debit Card Transactions pursuant to the terms herein.
5.2
Until and unless otherwise authorized by HPS, Merchant agrees to utilize compliant and compatible
equipment/PIN-pads or systems capable of processing all ACH debit Card Transactions as well as online-debit
Card Transactions at its Locations. All HPS applications software residing on the equipment or systems is the
sole property of HPS. Any software residing in Merchant owned or leased equipment or systems must be HPS
compatible.
Merchant’s placement of the equipment or system at its Locations shall constitute acceptance of all terms and
conditions set forth in this section. Merchant understands and agrees that HPS has no responsibility whatsoever
for inoperative equipment or systems (or software if applicable).
In the case of inoperative terminal or system, Merchant shall consult Merchant’s warranty or equipment
maintenance agreement as applicable. Merchant also acknowledges that all equipment/pin-pads or systems
capable of processing all debit Card Transactions at its Locations must remain compliant with the data security
requirements of Section 3 of this Agreement.
5.3
Merchant shall utilize HPS compatible equipment/pinpad or system to process all debit Card Transactions and
to abide by all applicable Rules of the applicable debit Card on-line network selected by HPS. HPS has no
responsibility or liability for any of the debit Card Networks.
5.4
Merchant agrees to indemnify and hold HPS harmless from any and all claims, actions, proceeding and other
liability, which may arise pertaining to such debit Transactions.
5.5
Any claims Merchant may have regarding debit services may not be offset against bankcard sales.
5.6
Merchant assumes all responsibility for retention of paper copies of debit Card Transactions; pursuant to the
appropriate debit Card Network Rules.
5.7
Within one (1) business day of the original Transaction, Merchant must balance each Location to the system
for each business day that each Location is open. If Merchant determines that any Transaction(s) have been
processed in error, Merchant will initiate the appropriate Transaction for adjustment. Merchant is responsible
for all applicable adjustment fees assessed by the Card Schemes.
5.8
Merchant shall be responsible for all telephone message unit costs, if any, as they are incurred by Merchant for
any of the services provided.
5.9
HPS will provide installation, training, service and support for all purchased and rented equipment provided by
HPS. Equipment purchased and provided by a third party vendor should be supported and maintained by the
vendor.
5.10
Merchant shall be responsible for the following debit related fees:
(a) HPS Debit Fee (does not include Debit Network Fee);
(b) Debit Network Set-up Fee;
(c) Service & Regulatory Mandate Fee.
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5.11
Debit Transactions are governed by network regulations as well as federal and state laws and regulations,
including but not limited to the Electronic Funds Transfer Act, and Regulation E, pursuant to which consumers
may have up to sixty (60) days to dispute a Transaction. Merchant shall comply with all applicable federal, state
and local laws and regulations.
5.12
Non-Request for PIN Disclosure Procedures. Merchant agrees to ensure that no employee or agent requests
a Cardholder to divulge their PIN number.
5.13
Prevention of PIN Entry Observation. Merchant agrees to undertake commercially reasonable actions to
prevent others from observing the entered PIN number. Some prevention examples could be, but not limited
to:
(a) Placement of security cameras in relation to PIN Entry Device (PED);
(b) PED shielding; or
(c) PED placement on POS counter.
5.14
EBT Transactions
If Merchant elects to accept electronic benefit Transactions (“EBT”), the additional following terms and
conditions will apply:
5.14.1 EBT Services.
Merchant will participate in, and HPS will provide access to, the programs for debit card access to
electronically distributed government benefits as agreed to between the parties from time to time. ("EBT
Programs"). Each EBT Program shall be treated as a "Network" for purposes of this Agreement and
each EBT card issued for access to government benefits issued under such EBT Programs shall be
treated as a "debit card" under this Agreement.
5.14.2 Rights, Duties and Responsibilities of Merchant.
(a) At all times during the term, including any renewal thereof, Merchant shall remain a participant in
good standing in each EBT Program selected hereunder.
(b) Merchant shall submit to HPS written requests to participate in each EBT Program as amended
from time to time, for each Location where EBT will be offered. HPS must receive such EBT request
a minimum of fourteen (14) days prior to the desired activation date.
(c) Merchant shall notify HPS at least thirty (30) days prior to the termination or withdrawal of its
participation in any such EBT Program, or if such participation is terminated involuntarily and
without prior notice to Merchant, immediately following such notice.
(d) Merchant shall pay to HPS all EBT related fees set forth in this Agreement.
(e) Merchant will comply with all applicable laws, regulations, Rules, or administrative guidelines
related to its participation in each EBT Program and acceptance of EBT Cards, including any
Network Rules. Without limiting the foregoing, Merchant shall not resubmit any EBT Transactions
except as specifically permitted by Rules related to such EBT Program. In addition, if Merchant
accepts EBT under the Food Stamp Program, Merchant shall deploy and identify its equipment
consistent with Department of Agriculture requirements. Merchant will not take any action that
would cause HPS to be in violation of any law, regulation, rule or administrative guideline applicable
to an EBT Program, including any Network Rules.
(f) With respect to each EBT Program in which Merchant participates, Merchant shall comply with any
obligations or duties imposed on merchants participating in such EBT Program under an agreement
("Processor Agreement") between HPS and the administrator of the EBT Program ("EBT Provider")
pursuant to which HPS is authorized to process Transactions for the EBT Program, and the EBT
Provider shall have the right to directly enforce the terms and conditions of the Processor
Agreement against Merchant in the event that Merchant breaches its obligations hereunder.
(g) Merchant agrees that HPS may release information regarding Merchant's use of the EBT Program
upon request by any federal or state agency, and that Merchant shall not have a claim or cause of
action for such release of information.
(h) Merchant will accept EBT Cards only for Transactions and purchases permitted under the
applicable EBT Program.
(i) Regardless of Merchant's standard operating procedure for handling refunds, it shall provide
refunds with respect to EBT Transactions only in accordance with applicable laws, regulations,
Rules, or administrative guidelines related to its participation in each EBT Program, including
Network Rules.
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(j) If required by an EBT Program, Merchant shall seek to obtain telephone Authorization of each EBT
Transaction in situations in which it is unable to obtain electronic response from the Card
Authorization system for the EBT Program. If HPS processes manual Sales Drafts for Merchant;
Merchant shall complete any such manual Sales Draft for an EBT Transaction in accordance with
the requirements of the EBT Program.
(k) Merchant shall maintain records of EBT Transactions as required by applicable laws, regulations,
Rules or administrative guidelines related to its participation in each EBT Program, including
Network Rules.
(l) Merchant shall not use or disclose any information concerning a Recipient for any purpose not
directly connected with the performance of Merchant's duties under an EBT Program.
(m) Merchant shall not discriminate in the provision or denial of any EBT Transactions on the basis of
a Recipient's disability or handicap (if any), age, race, color, religion, sex, sexual preference,
political belief, national origin, creed, marital status or veteran's status.
(n) Merchant shall provide to HPS and any EBT Provider any information reasonably required by HPS
or the EBT Provider to assist HPS or the EBT Provider in ensuring the integrity, security and
successful performance of the EBT Network.
(o) Merchant shall, at its own expense, ensure that its employees receive appropriate training in the
use of equipment and procedures with respect to each EBT Program in which Merchant
participates. If Merchant so requests, HPS and Merchant shall enter into a written agreement
pursuant to which HPS shall provide such training to Merchant's employees, provided that
Merchant shall pay HPS the usual and customary fees charged by HPS for its employees time in
conducting such training and shall reimburse HPS for employee travel, lodging and other
reasonable out-of-pocket expenses incurred in conducting on-site training.
5.14.3 HPS Representations and Warranties.
HPS hereby represents and warrants that it is a qualified processor in each EBT Program identified
and that it has obtained any and all Authorizations, certifications or other evidence of authority and has
properly executed and delivered any and all applications, agreements or other documents necessary
to participate in each such EBT Program.
5.14.4 Rights, Duties and Responsibilities of HPS.
(a) HPS shall provide the EBT services identified in accordance with the terms of EBT, this Agreement
and applicable laws, regulations, Rules and administrative guidelines applicable to each selected
EBT Program, including any Network Rules.
(b) HPS shall have the authority, without any liability, to terminate or suspend the provision of services
hereunder with respect to each and every EBT Program, at the direction of any federal, state or
other authority with responsibility for oversight or implementation of such EBT Program, or upon
HPS determination to terminate support for such EBT Program for all customers. If HPS is directed
to terminate or suspend the provision of services hereunder with respect to an EBT Program, HPS
may also terminate or suspend provision of services hereunder for any other EBT Program without
liability.
5.14.5 Indemnity.
In addition to any indemnification obligations of Merchant set forth elsewhere in this Agreement,
Merchant agrees to indemnify and hold harmless HPS and Member Sponsor Bank from and against
any and all claims or losses arising out of:
(a) any act or omission by Merchant in violation of any applicable federal, state or local law or
regulation, or rule or administrative guideline related to any EBT Program, including a Network
Rule;
(b) any negligent or fraudulent act or omission or intentional misconduct by Merchant;
(c) any failure by Merchant to comply with any obligation or duty imposed on merchants participating
in an EBT Program under a Processor Agreement; or
(d) any act or omission of Merchant that causes HPS to breach any undertaking under a Processor
Agreement, including any performance standards hereunder.
5.14.6 Limitation of Liability.
In addition to any other limitations of liability set forth in this Agreement, Merchant agrees and
acknowledges that HPS and Member Sponsor Bank shall have no liability to Merchant arising out of
any act or omission by an EBT Provider. Without limiting the foregoing, HPS and each EBT Provider
shall have no liability to Merchant for an EBT Provider's rejection, Chargeback or other failure to fully
process in the ordinary course and without penalty any adjustment based upon a restriction on any
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EBT Provider's ability to process such adjustment to the Account of a recipient of government benefits,
regardless of whether the error being adjusted was caused, in whole or in part, by HPS.
5.14.7 Deluxe EBT Program.
If Merchant is a participant in an EBT Program in the States of Kansas, Louisiana, (or any other state
where Deluxe Data Systems, Inc. ["Deluxe"] is the prime contractor for the state), Merchant agrees that
Deluxe, which is the EBT Provider for those states, shall have no liability to Merchant arising out of
Deluxe's management of the EBT Program or processing of Transactions except for Merchant's direct
damages caused by fraud or intentional misconduct committed by Deluxe's employees.
In no event shall Deluxe be liable to Merchant for indirect, incidental or consequential damages.
Merchant agrees and acknowledges that Deluxe is a third party beneficiary of EBT for purposes of this
limitation liability.
6. Fees
6.1
As consideration for the services to be provided by HPS, Merchant shall pay HPS various fees in the manner
and pursuant to the Fee Schedule set forth herein and in the Application. The Fee Schedule may be amended
as set forth in Section 19.11 of this Agreement. For the avoidance of doubt, Merchant is responsible for all Pass
Through fees charged by the Card Schemes. Merchant is responsible for verifying the accuracy of its monthly
statements received from HPS for the services provided hereunder.
6.2
Merchant shall pay fees charged to Merchant by third parties for telephone equipment, the preparation of the
site(s) prior to installation of electronic data capture equipment and/or peripheral equipment, installation,
maintenance, line charges, and utility costs. In addition, Merchant shall be responsible for any increase in long-
distance communication costs, internet access, gateway costs, IP, SSL, DSL, lease, frame, and processing
charges from third party vendors.
6.3
Merchant shall pay all applicable sales taxes for services and products provided by HPS.
6.4
All Card-Not-Present Transactions will be subject to the applicable interchange rates as defined by the Card
Schemes. Notwithstanding the fees and costs listed in the Fee Schedule, Merchant shall pay any additional
costs and fees associated with “Non-Qualifying Transactions” (including, but not limited to, Card-Not-Present
Transactions, or Transactions involving corporate, business, purchasing and/or rewards Cards or any other
types of Cards subject to Non-Qualifying rates). In addition, Merchant shall pay a voice Authorization fee $0.65
per Transaction or HPS’ then current rate for Voice Authorizations.
6.5
Merchant shall pay such fees and charges as may be set by HPS for any requested system enhancements or
services in addition to those specified herein or in the Merchant Application or as may be requested by
applicable law or changes in the Rules.
7. Rights, Duties and Responsibilities of HPS
7.1
HPS will accept all Sales Drafts and Credit Vouchers deposited by Merchant that comply with the terms of this
Agreement. HPS will pay to Merchant the total face amount of each valid Sales Draft, less any Credit Vouchers,
Discounts, fees or adjustments determined daily, weekly or monthly. All payments, credits and charges are
subject to audit and final review by HPS and prompt adjustment shall be made as required. Notwithstanding
any other provision in this Agreement, HPS may refuse to accept any Sales Draft, revoke its prior acceptance,
or delay processing of any Sales Draft for any period of time, as HPS deems necessary and appropriate. HPS
shall have no liability to Merchant for additional charges, higher rates, or any other loss, expense or damage
Merchant may incur directly or indirectly due to any such refusal, revocation or delay.
7.2
HPS will accept customer service calls and other communications from Merchant relating to the services
provided under this Agreement including, but not limited to, equipment service, disbursement of funds, Account
charges, Merchant statements and Chargebacks.
7.3
HPS will process requests for Sales Drafts from Card Issuers and all Chargebacks and will provide Merchant
with notice of requests and Chargebacks.
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7.4
HPS may provide terminals, printers and peripheral equipment at Merchant’s request and expense. HPS will
obtain repair and replacements on purchased and rented equipment. Merchant shall be liable for all non-
warranty repairs, shipping and handling costs.
7.5
HPS may provide online data management information concerning Merchant to Member Sponsor Banks, Card
Schemes, Card Issuers or any other party. This information includes but is not limited to Merchant identification
information, Transaction information, deposits, ACH, batches, equipment, Chargebacks, retrievals, online
statements and monthly affiliate reports.
7.6
Upon receipt of written request by Merchant, HPS may provide Merchant with certain supplies to complete and
document Transactions at Merchant’s request and expense as set forth in HPS product price list in effect at the
time of such request.
7.7
From time to time HPS may refer Merchant to certain independent third party providers of certain products or
services. Any agreement relating to the provision of such products or services shall be solely between the
provider and Merchant. Under no circumstance shall HPS have any liability arising out of or related to the
performance or non-performance of any product or service to be provided by any such third party provider.
7.8
HPS reserves the right, without notification, to change or modify all or part of the network configuration used to
provide the services. Selection of equipment, hardware, etc. to be used by HPS or HPS’s system shall be left
solely to HPS’s discretion. HPS shall not change its equipment protocol or HPS’s compatibility requirements
without notice to Merchant.
8. Privacy, Data Sharing & Confidentiality
8.1
Merchant is solely responsible for compliance with any privacy laws applicable to its use of HPS products and
services, and its acceptance of Card Transactions. If Merchant is a Covered Entity, HealthCare Provider, or
Business Associate under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA Rules”),
Merchant represents and warrants that it shall not transmit to HPS any Protected Health Information (“PHI”), as
defined in 45 C.F. R. §164.501. HPS operates under an exemption in the HIPAA Rules for financial institutions
performing consumer conducted payment Transactions.
Furthermore, any exposure to PHI shall be random, infrequent and incidental to the provision of services by
HPS, as allowed under the HIPAA Rules, and is not meant for the purpose of accessing, managing the PHI or
creating or manipulating the PHI. Any transmission of PHI by Merchant to HPS shall be the responsibility of
Merchant and Merchant agrees to pay HPS any fees or fines imposed on HPS by any agency of the U.S.
Government with respect to or resulting from acts or omissions of Merchant regarding PHI.
8.2
As between HPS and Merchant, HPS shall be deemed the owner of all Transaction Data. Merchant shall have
no rights in or title to Transaction Data, notwithstanding HPS’s provision of access to certain Transaction Data
in relation to the provision of services hereunder.
8.3
Merchant authorizes HPS to use, make available to third parties and/or exchange information, including
Transaction Data, and information that relates to an identifiable individual (“Personal Information”), about
Merchant (and about its partners, principals, proprietors, officers, shareholders and managing agents who have
provided their written consent pursuant to this Agreement) with other financial institutions, payment networks,
and any other persons or entities for the purpose of providing services under this Agreement or as HPS
otherwise deems appropriate or necessary.
8.4
Merchant authorizes HPS to use, make available to third parties, and/or exchange information, including
Transaction Data and Personal Information, about Merchant (and about its partners, principals, proprietors,
officers, shareholders and managing agents who have provided their written consent pursuant to this
Agreement) for statistical analysis, marketing purposes, and any other purpose related to the provision of HPS
or a third party’s products and services.
8.5
Merchant acknowledges that HPS may use, make available to third parties or exchange information, including
Transaction Data and Personal Information, about Merchant (and about its partners, principals, proprietors,
officers, shareholders and managing agents who have provided their written consent pursuant to this
Agreement) with other entities that have products or services that may be of interest to Merchant. Personal
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Information regarding Merchant or Merchants customers will not be used in any way contrary to any applicable
laws.
8.6
Upon acceptance of this Agreement, Merchant confirms it has read, understood and accepted the HPS Online
Privacy Policy.
8.7
Confidential Information. Merchant and HPS will take reasonable steps to protect and maintain the
confidentiality of confidential information as defined below (“Confidential Information”). bank account
(a) The types of Confidential Information that HPS may collect, share or make available to Merchants will
depend on the products or services provided to the Merchant. Confidential Information may include, but is not
limited to, financial information, such as transaction data and financial account information of Merchant and/or
its customers.
Confidential Information further includes Personal Information, including but not limited to: social security
number, driver’s license number, credit or debit card number, personal identification number or password that
would permit access to a financial account, personal bank account number, passport number or email address.
Confidential Information further includes information HPS provides to Merchant about HPS’s products, services,
systems, and business.
(b) Confidential Information shall not include information that is lawfully obtained and publicly available or that
is derived from federal, state, or local government records lawfully made available to the public.
(c) HPS may otherwise share or disclose Confidential Information pursuant to Sections 8.1, 8.2 and 8.3 or if it
determines, in its sole discretion, that it is required to do so pursuant to any applicable law, regulatory
requirement, and/or contractual obligation.
9. Reserve and Payment Obligations
9.1
At any time, HPS may establish a Reserve Account to secure the performance of Merchant’s obligations
hereunder, including without limitation in the event: (a) of a breach of this Agreement by Merchant; (b) of a
material adverse change in Merchant’s financial condition;
(c) Merchant receives excessive Chargebacks as determined by HPS, a Member Sponsor Bank or any Card
Scheme; (d) Merchant has submitted fraudulent or suspicious Transactions; (e) HPS has reasonable grounds
to believe that it may be or become liable to third parties due to Merchant’s action or inaction hereunder; (f) of
a change in Merchant’s transaction volume or average ticket, or (g) HPS has reasonable grounds to believe
that material fines, fees, or penalties may be assessed against HPS or a Member Sponsor Bank by a Card
Scheme arising out of or relating to Merchant's failure to comply with the Rules. The amount of such Reserve
Account shall be set and may be revised by HPS in its sole discretion at any time, based upon Merchant’s
processing history and the anticipated risk of loss to HPS.
9.2
HPS may require that such Reserve Account be funded by all or any combination of the following:
(a) debits to Merchant’s Account or any other accounts owned by Merchant;
(b) deductions or offsets to any payments otherwise due to Merchant;
(c) Merchant’s delivery of a letter of credit; or
(d) Merchant’s pledge to HPS of a freely transferable negotiable certificate of deposit. Any such letter of credit
or certificate of deposit shall be issued or established by a financial institution acceptable to HPS.
In the event of termination of this Agreement by either Merchant or HPS, an immediate Reserve Account, if not
already established, may be established by HPS and the Reserve Account will be held by HPS for six (6)
months after termination of this Agreement or for such longer time as HPS may, in its discretion, deem
reasonably necessary based upon Merchant’s liability to HPS arising prior to or after termination of this
Agreement and HPS may deposit into and retain in the Reserve Account any and all amounts otherwise payable
to Merchant.
Funds held in a Reserve Account may be held in a commingled Reserve Account for the reserve funds held in
relation to HPS’s other merchants, without involvement by an independent escrow agent. Merchant agrees that
it shall have no right, title or interest in or to the commingled Reserve Account and shall receive no interest on
funds held in a Reserve Account. However, Merchant may have an unsecured contractual claim against HPS
with respect to any amount which may be due to Merchant after the expiration of the period described herein.
Alternatively, in the sole discretion of HPS, HPS may place the funds in a Reserve Account in Merchant’s name,
and such funds shall be payable to Merchant therefrom in accordance with this Agreement. Any amount
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remaining in the Reserve Account when HPS determines that the Reserve Account may be closed shall be
released to Merchant.
9.3
To secure the Merchant’s obligations to HPS under this Agreement, and any other agreement for the provision
of related equipment or related services (“Obligations”), Merchant grants to HPS a lien and security interest in
and to any of Merchant’s funds now or hereafter in the possession of HPS, whether now or hereafter due or to
become due to Merchant from HPS. HPS is hereby authorized (any related notice and demand are hereby
expressly waived), to set off, recoup, appropriate, and apply any and all such funds against and on account of
Merchant’s obligations under this Agreement, whether such obligations are liquidated, un-liquidated, fixed,
contingent, matured or un-matured. Merchant agrees to duly execute and deliver to HPS such instruments and
documents as HPS may reasonably request to perfect and confirm the lien, security interest, right of set off,
recoupment and appropriation set forth in this Agreement.
9.4
Merchant agrees that HPS may withdraw funds from the Reserve Account at any time without notice to
Merchant in the amount of any obligation of liability of Merchant to HPS hereunder, arising prior to or after
termination, including any applicable Early Termination Fees pursuant to Section 13.4. If the Reserve Account
funds are not sufficient to cover the Chargebacks, adjustments, fees and other charges due from Merchant, or
if the funds in the Reserve Account have been released, Merchant agrees to promptly pay HPS the amount of
such deficiency upon request.
10. Indemnification; Due Care
10.1
Merchant shall indemnify and hold harmless HPS and Member Sponsor Bank from all claims, liability, loss and
damage, including reasonable attorney’s fees and costs, whether direct or indirect, arising out of: (i) any breach
by Merchant of the terms of this Agreement; (ii) any act or omission of Merchant, (iii) Merchant’s failure or
alleged failure to comply with the Rules, or any federal or state law, rule or regulation, including, without
limitation, any rules or regulations promulgated by the PCI SSC or any other applicable security standards; (iv)
death or injury caused by the Products sold by Merchant, (v) all web-based, internet or electronic commerce
Transactions including Merchant’s insecure transmission of card transaction data and/or storage of cardholder
information, (vi) any agreement to permit Merchant to access other financial services through point of sale
equipment provided by HPS and/or Member Sponsor Bank, (vii) the services provided to Merchant from a
Merchant Servicer or Third Party Agent, including any and all claims related to the performance or non-
performance of Merchant Servicer or Third Party Agent pursuant to such agreement or non-compliance thereof
or (viii) HPS’s and/or Member Sponsor Bank’s reporting of Merchant’s business name and the names and other
identification of its principals to the terminated merchant file in accordance with Section 14.1 hereof. Merchant
shall pay all fees, costs associated with any action brought by HPS and/or Member Sponsor Bank to collect
amounts owed by Merchant to HPS and/or Member Sponsor Bank under this Agreement.
11. Limitation of Liability
11.1
HPS and Member Sponsor Bank shall have no liability whatsoever and for any reason for:
(a) increased fees or other charges resulting from Merchant’s use of equipment or other software provided or
serviced by any Service Provider or Third Party Agent, or
(b) for any act, omission or damages arising from services provided to Merchant from a Merchant Servicer or
Third Party Agent.
11.2
IT IS AGREED THAT IN NO EVENT WILL HPS OR MEMBER SPONSOR BANK BE LIABLE FOR ANY
CLAIM, LOSS, BILLING ERROR, DAMAGE, OR EXPENSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT WHICH IS NOT REPORTED IN WRITING TO HPS OR MEMBER SPONSOR BANK BY
MERCHANT WITHIN SIXTY (60) DAYS OF SUCH FAILURE TO PERFORM, OR IN THE EVENT OF A
BILLING ERROR WITHIN NINETY (90) DAYS OF THE DATE OF THE INVOICE OR APPLICABLE
STATEMENT. MERCHANT HEREBY EXPRESSLY WAIVES ANY SUCH CLAIM THAT IS NOT BROUGHT
WITHIN THE SPECIFIED TIME PERIODS.
11.3
THE LIABILITY FOR HPS AND MEMBER SPONSOR BANK FOR ANY LOSS ARISING OUT OF OR
RELATING IN ANY WAY TO THIS CARD SERVICES AGREEMENT, INCLUDING BUT NOT LIMITED TO
DAMAGES ARISING FROM THE UNAVAILABILITY OR MALFUNCTION OF THE SERVICES PROVIDED
HEREUNDER, PERSONAL INJURY, OR OTHER PROPERTY DAMAGE, SHALL, IN THE AGGREGATE, BE
LIMITED TO ACTUAL, DIRECT, AND GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED
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ONE (1) MONTH’S AVERAGE CHARGE PAID BY MERCHANT HEREUNDER (EXCLUSIVE OF
INTERCHANGE FEES, ASSESSMENTS, AND ANY OTHER FEES OR COSTS THAT ARE IMPOSED BY A
THIRD PARTY IN CONNECTION WITH MERCHANT’S PAYMENT PROCESSING) FOR THE SERVICES
PROVIDED HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS OR SUCH LESSER NUMBER
OF MONTHS AS SHALL HAVE ELAPSED SUBSEQUENT TO THE EFFECTIVE DATE OF THIS
AGREEMENT.
11.4
IN NO EVENT SHALL HPS OR MEMBER SPONSOR BANK BE LIABLE FOR SPECIAL, CONSEQUENTIAL,
INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES AND BUSINESS
OPPORTUNITIES. MERCHANT AGREES TO REIMBURSE HPS FOR ALL COSTS AND EXPENSES,
INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES INCURRED AS A RESULT OF
ANY SUCH ACTION, PROCEEDING OR LIABILITY. THE PROVISIONS OF THIS PARAGRAPH SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT. Without limitation of the foregoing, HPS shall not be
liable to Merchant for delays in data transmission.
11.5
HPS AND MEMBER SPONSOR BANK MAKE NO WARRANTY WHATSOEVER REGARDING CARD
AUTHORIZATIONS, DECLINES OR REFERRAL CODES, RESPONSES TO REQUESTS FOR
AUTHORIZATION, PROCESSING, SETTLEMENT, OR ANY OTHER SERVICES PROVIDED BY OR ON
BEHALF OF HPS AND MEMBER SPONSOR BANK HEREUNDER, AND HPS AND MEMBER SPONSOR
BANK HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY TITLE, OR NON-
INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE and HPS and Member Sponsor Bank shall
have no liability to Merchant or any other person for any loss, liability or damage arising directly or indirectly in
connection herewith. Without limitation of the foregoing, Merchant acknowledges that HPS and Member
Sponsor Bank have no liability or responsibility for the actions or failures of any Card Scheme, Card Issuer or
Cardholder.
11.6
HPS AND MEMBER SPONSOR BANK SHALL BE EXCUSED FOR UNTIMELY PERFORMANCE OR NON-
PERFORMANCE OF THE SERVICES PROVIDED HEREUNDER INCLUDING PROCESSING DELAYS OR
OTHER NON-PERFORMANCE CAUSED BY SUCH EVENTS AS FIRES, TELECOMMUNICATIONS
FAILURES, EQUIPMENT FAILURES, STRIKES, RIOTS, WAR; NON-PERFORMANCE OF VENDORS,
SUPPLIERS, PROCESSORS OR TRANSMITTERS OF INFORMATION; ACTS OF GOD OR ANY OTHER
CAUSES OVER WHICH HPS OR MEMBER SPONSOR BANK HAS NO CONTROL.
12. Display of Materials: Trademarks
12.1
Use of promotional materials and use of any trade name, trademark, service mark or logo type (“Marks”)
associated with each Card Scheme shall fully comply with specifications contained in applicable Rules.
12.2
Merchant shall only use each Mark in a way to indicate that the Card Scheme is accepted at Merchant and that
Merchant is customer of HPS. Marks may not be edited or combined with other Marks. Merchant shall not use
any promotional materials or Marks in any way that suggests or implies that a Card Scheme endorses
Merchant’s Products or services.
13. Term: Termination
13.1
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON ACCEPTANCE OF THE FIRST
MERCHANT DEPOSIT BY HPS AND SHALL CONTINUE IN EFFECT FOR A TERM OF
THIRTY-SIX (36) MONTHS THEREFROM (“TERM”). THEREAFTER, THIS AGREEMENT
WILL AUTOMATICALLY RENEW FOR ADDITIONAL TWELVE (12) MONTH PERIODS
UNLESS TERMINATED BY ANY PARTY BY GIVING WRITTEN NOTICE TO THE OTHER
PARTY AT LEAST SIXTY (60) DAYS PRIOR TO THE END OF THE TERM OR ANY
RENEWAL TERM, EXCEPT THAT IN CASE OF AN EVENT OF DEFAULT BY
MERCHANT, OR AS REQUIRED BY A CARD SCHEME OR MEMBER SPONSOR BANK,
THIS AGREEMENT MAY BE TERMINATED OR SUSPENDED IMMEDIATELY AND HPS
SHALL GIVE MERCHANT WRITTEN NOTICE WITHIN FIFTEEN (15) DAYS
THEREAFTER.
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13.2
Upon the occurrence of any Event of Default, all amounts payable hereunder by Merchant to HPS shall be
immediately due and payable in full without demand or other notice of any kind, all of which are expressly
waived by Merchant. For the purposes of this Section 13.2 an “Event of Default” occurs when:
(a) Merchant shall default in any material respect in the performance or observance of any term, covenant,
condition contained in this Agreement, including, but not limited to, the establishment of or maintenance of
funds in a Reserve Account in accordance with the provision of Section 9.1 and 9.2; or any noncompliance
with the Rules or the operating regulations of a Card Issuer or a reasonable belief by HPS that Merchant
will constitute a risk to HPS by failing to meet the terms of this Agreement;
(b) material adverse change in the business, financial condition, business procedure, prospects, Products or
services of Merchant;
(c) any information contained in the Merchant Application was or is incorrect in any material respect, is
incomplete or omits any information necessary to make such information and statements not misleading to
HPS;
(d) any assignment or transfer of control of Merchant or its parent;
(e) a sale, transfer or liquidation of all or a substantial portion of Merchant’s assets;
(f) irregular Card sales or credits by Merchant, Card sales substantially greater than the annual volume or
average ticket amount stated on Merchant’s Application, excessive Chargebacks or any other
circumstances which, in the sole discretion of HPS, may increase the risk of Merchant Chargebacks or
otherwise present a financial or security risk to HPS;
(g) reasonable belief by HPS that Merchant is engaged in practices that involve elements of fraud or conduct
deemed to be injurious to Cardholders, including, but not limited to fraudulent, prohibited or restricted
Transaction(s);
(h) any voluntary or involuntary bankruptcy or insolvency proceedings involving Merchant, its parent or an
affiliated entity, or any other condition that would cause HPS to deem Merchant to be financially insecure;
(i) Merchant engages in any Outbound Telemarketing Transactions;
(j) Merchant or any other person owning or controlling Merchant’s business is or becomes listed in any Card
Schemes security reporting; or
(k) Early termination of this Agreement by Merchant without cause, including without limitation by Merchant’s
use of another processor to provide services similar to those provided by HPS hereunder.
Then, upon occurrence of any Event of Default, all amounts payable hereunder by Merchant to HPS, including
any applicable Early Termination Fees (payable as set forth in Section 13.4), shall be immediately due and
payable in full without demand or other notice of any kind, all of which are expressly waived by Merchant.
13.3
In the event of termination, regardless of cause, Merchant agrees that all obligations and liabilities of Merchant
including all Chargebacks, fees, credits and adjustments with respect to any Sales Draft or Credit Voucher
presented prior to the effective date of termination shall survive such termination and expressly authorizes HPS
to withhold and discontinue the deposit to Merchant’s Account for all Card and other payment Transactions of
Merchant in the process of being collected and deposited.
13.4
MERCHANT MAY BE CHARGED A FEE OF $295 PER LOCATION (“EARLY
TERMINATION FEE” OR “ETF”) IF MERCHANT TERMINATES THIS AGREEMENT
PRIOR TO THE EXPIRATION OF THE TERM (EXCEPT IF AS A RESULT OF HPS’
MATERIAL UNCURED BREACH OF THIS AGREEMENT). THE ETF MAY BE DEDUCTED
IN A SINGLE PAYMENT FOR THE FULL AMOUNT VIA ACH DEBIT TO THE ACCOUNT,
AT HPS’ OPTION, UPON OR AT ANY TIME AFTER HPS’ RECEIPT OF MERCHANT’S
NOTICE OF TERMINATION.
13.5
Neither the expiration nor termination of this Agreement shall terminate the obligations or rights of the parties
pursuant to provisions of this Agreement, which by their terms are intended to survive or be perpetual or
irrevocable.
13.6
The provisions governing processing and settlement of Card Transactions, all related adjustments, fees and
other amounts due from Merchant and the resolution of any related Chargebacks, will continue to apply after
termination of this Agreement.
13.7
Supply orders are shipped via ground and any additional shipping fees such as overnight, second day, third
day and Saturday delivery will be charged to the Merchant. HPS will collect all charges for supplies and shipping
via ACH.
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14. Terminated Merchant File
14.1
If Merchant is terminated for cause by a Card Scheme, including but not limited to fraud, counterfeit, duplicate
or unauthorized Transactions, excessive Chargebacks or suspect activity, HPS and/or Member Sponsor Bank
may report Merchant’s business name and the names and other identification of its principals to the terminated
merchant file. Merchant expressly agrees and consents to such reporting, and HPS and Member Sponsor Bank
have no liability to Merchant for any loss, expense or damage Merchant may sustain, directly or indirectly, due
to such reporting.
15. Additional Locations
15.1
Merchant may wish to utilize services provided by HPS under this Agreement at its other business Locations
(“Additional Locations”). Merchant may apply to add such Additional Locations provided that such Additional
Locations conduct the same type of business and sell the same type of Products. Additional Locations submitted
to receive Services under this Agreement shall be subject to approval by HPS and Member Sponsor Bank, and
Merchant shall submit a new Merchant Application for any such Additional Location(s).
16. Notices
16.1
All notices and other communications required or permitted to be sent to Merchant under this Agreement may
be made: (1) by written communication sent to Merchant at the address stated on the Merchant Application or
as updated by Merchant thereafter; (2) by electronic communication sent to Merchant at the electronic mail
address stated on the Merchant Application or as updated by Merchant thereafter; or (3) via an electronic
posting or notification accessible to Merchant on the Heartland website located at:
https://infocentral.heartlandpaymentsystems.com. All notices and other communication required or permitted
to be sent to HPS under this Agreement shall be deemed delivered when mailed first-class mail, postage
prepaid, addressed to the Merchant at the address stated in the Application and to HPS at the address set
forth below, or at such other address as the receiving party may have provided by written notice to the other:
Heartland Payment Systems, LLC
Attn: Customer Care
One Heartland Way
Jeffersonville, IN. 47130
Phone: (888) 963-3600
Member Sponsor Banks
Issues Regarding Credit Cards
Deutsche Bank Trust Company Americas
Cash Management
1 Columbus Circle, New York NY, USA 10019-8735
Email: COMPL.Card_Acquiring@list.DB.com
Wells Fargo Bank, N.A.
P.O. Box 6079
Concord, CA 94524
Phone: (844) 284-6834
Issues Regarding Debit Cards
PB&T BANK
301 West 5th Street
Pueblo, CO. 81003
(888) 728-3550
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17. DISPUTE RESOLUTION – ARBITRATION AND CLASS ACTION WAIVER
NOTE: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND THE RESOLUTION OF
DISPUTES
17.1
MANDATORY ARBITRATION: ANY DISPUTE OR CLAIM ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS
AGREEMENT SHALL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT;
HOWEVER, YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF (1) THE CLAIMS QUALIFY FOR
SMALL CLAIMS COURT; (2) THE MATTER REMAINS IN SMALL CLAIMS COURT AT ALL TIMES; AND
(3) THE MATTER PROCEEDS ONLY ON AN INDIVIDUAL (NOT A CLASS OR REPRESENTATIVE) BASIS).
ARBITRATION DOES NOT PROCEED BEFORE A JURY AND MAY INVOLVE MORE LIMITED DISCOVERY
THAN A COURT PROCEEDING.
ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS
ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION
WITH OTHER ARBITRATIONS ARE NOT PERMITTED. The arbitrator's award or decision will not affect issues
or claims involved in any proceeding between HPS and any person or entity who is not a party to the arbitration.
The arbitrator may award monetary, declaratory or injunctive relief only in favor of the individual party seeking
relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator's
award, if any, will not apply to any person or entity that is not a party to the arbitration. However, nothing in this
Section or Agreement shall preclude any party from bringing issues to the attention of federal, state or local
agencies. Such agencies can, if the law allows, seek relief on your behalf.
Further, notwithstanding the foregoing, nothing in this Section or this Agreement prohibits a party from applying
to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable
relief.
The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of the arbitration
provisions of this section. Arbitration will be administered by JAMS (www.jamsadr.com). For claims greater
than $250,000, the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration
is commenced will apply (if no such rules are in effect, JAMs default arbitration rules shall apply). For claims
equal to or less than $250,000, the JAMS Streamlined Arbitration Rules and Procedures in effect at the time
the arbitration is commenced will apply (if no such rules are in effect, JAMS default arbitration rules shall apply).
Unless the arbitrator(s) determine that justice or fairness require otherwise: (i) any arbitration will proceed in
Muscogee County, Georgia (although, for the convenience of the Merchant or guarantor (as applicable), any
party or its counsel may participate telephonically); and (ii) the arbitrator(s) will oversee limited discovery, taking
into account the amount in controversy and the parties’ desire to keep proceedings cost-effective and efficient.
Any decision rendered in any arbitration proceeding shall be final and binding on each of the parties to the
arbitration and judgment may be entered thereon in any court of competent jurisdiction. The parties will maintain
the confidential nature of the arbitration proceeding except as may be necessary to enforce any award or to
comply with applicable law.
If the total damage claims in an arbitration are $10,000 or less, not including the Merchant’s attorney fees
(“Small Arbitration Claim"), the arbitrator may, if the Merchant, prevails, award the Merchant reasonable
attorney fees, expert fees and costs (separate from Arbitration Costs as defined below), but may not grant HPS
its attorney fees, expert fees or costs (separate from Arbitration Costs) unless the arbitrator determines that the
Merchant's claim was frivolous or brought in bad faith. In a Small Arbitration Claim case, HPS will pay all
arbitration filing, administrative and arbitrator costs (together, “Arbitration Costs"). The Merchant must submit
any request for payment of Arbitration Costs to JAMS at the same time the Merchant submits its Demand for
Arbitration. However, if the Merchant wants HPS to advance the Arbitration Costs for a Small Arbitration Claim
before filing, HPS will do so at the Merchant's written request which must be sent to HPS at the address in
paragraph 16.1 above.
If the Merchant's total damage claims in an arbitration exceed $10,000, not including the Merchant's attorney
fees (“Large Arbitration Claim"), the arbitrator may award the prevailing party its reasonable attorneys' fees and
costs, or it may apportion attorneys' fees and costs between the Merchant and HPS (such fees and costs being
separate from Arbitration Costs).
In a Large Arbitration Claim case, if the Merchant is able to demonstrate that the Arbitration Costs will be
prohibitive as compared to the costs of litigation, HPS will pay as much of the Arbitration Costs as the arbitrator
deems necessary to prevent the arbitration from being cost-prohibitive.
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Merchant hereby agrees that claims applicable to American Express may be resolved through arbitration as
further described in the American Express Merchant Requirements Guide (the “American Express Guide”).
17.2
Choice of Forum: A court, not the arbitrator, will decide any questions regarding the validity, scope and/or
enforceability of Section 17.1. Any litigated action (as opposed to an arbitration) regarding, relating to or
involving the validity, scope and/or enforceability of Section 17.1, or otherwise, shall be brought in either the
courts of the State of Georgia sitting in Muscogee County or the United States District Court for the Northern
District of Georgia, and Merchant and guarantor (if applicable) expressly agree to the exclusive jurisdiction of
such courts. Merchant and guarantor (if applicable) hereby agree and consent to the personal jurisdiction and
venue of such courts, and expressly waive any objection that Merchant or guarantor might otherwise have to
personal jurisdiction or venue in such courts.
17.3
Class Action Waiver: MERCHANT AND GUARANTOR (IF APPLICABLE) ACKNOWLEDGE AND AGREE
THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE RESOLVED ON
AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE
CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES.
MERCHANT AND GUARANTOR (IF APPLICABLE) FURTHER AGREE TO WAIVE, AND HEREBY WAIVE,
THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE OR ARBITRATE ON A CLASS-WIDE
BASIS.
18. Additional Services
18.1
Merchant may request additional systems and services (“Additional Services”) from HPS beyond those
originally requested in the Application. In order to expedite the establishment of Additional Services, Merchant
hereby authorizes HPS to take whatever measures necessary to promptly establish any Additional Service that
Merchant might request in writing and to execute necessary authorization(s) on Merchant’s behalf on the
warranty hereby given that Merchant’s signature on this Agreement shall be valid for all Additional Services.
Delivery of any requested Additional Services shall be deemed to have occurred upon Merchant’s first use of
any such Additional Services. Merchant acknowledges that all Additional Services shall be governed by this
Agreement and the Rules.
18.2
In the event that Merchant elects to receive tokenization services, the following terms and conditions of this
Section 18 shall apply with respect thereto. HPS will tokenize each Cardholder primary account number (“PAN”)
submitted to HPS by Merchant in connection with a Transaction. HPS’s tokenization of each PAN submitted to
HPS by Merchant will occur after Authorization. Merchant hereby acknowledges that tokens may be assigned
to a token group which may be shared among other HPS merchants.
Merchant further acknowledges and agrees that all tokens provided or created in connection herewith remain
the sole and exclusive property of HPS and cannot be transferred or removed from HPS and will not follow
Merchant to any other provider without prior written approval from HPS, which approval may be approved or
withheld by HPS in its sole discretion.
19. Additional Terms
19.1
Truth of Statements: Merchant represents to HPS that all information and all statements contained in the
Merchant Application are true and complete and do not omit any information necessary to make such
information and statements not misleading to HPS.
19.2
Personal Guarantees & Guarantor(s): Any individual(s) by execution of the application as guarantor, hereby
unconditionally and irrevocably guarantees to HPS the full and faithful performance or payment by Merchant of
each and all of its duties and obligations herein set forth, including payment of all sums due and owing and any
attorney’s fees and cost associated with the enforcement of terms hereof, whether prior or subsequent to
termination or expiration of this Agreement. HPS shall not be required to proceed against Merchant or enforce
any other remedy before proceeding against the guarantor(s). This is a continuing guaranty and shall not be
discharged or affected by the sale or assignment of the merchant’s business or death of the guarantor(s) unless
such release is in writing signed by an authorized HPS representative.
It shall bind the heirs, administrators, representatives and assigns of the guarantor(s) and may be enforced by
or for the benefit of any successor of HPS.
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19.3
Entire Agreement: This Agreement constitutes the entire understanding of HPS and Merchant and supersedes
all prior agreements, understandings, representations, and negotiations, whether oral or written between them.
19.4
No Waiver of Rights: Any failure of HPS to enforce any of the terms, conditions or covenants of this Agreement
shall not constitute a waiver of any rights under this Agreement.
19.5
Section Headings: All section headings contained herein are for descriptive purposes only, and the language
of such section shall control.
19.6
Assignability: Merchant may not assign this Agreement directly or by operation of law, without the prior written
consent of HPS. Any assignment by Merchant without the prior written consent of HPS shall be void. HPS and
Member Sponsor Bank may assign this Agreement without Merchant’s consent. This Agreement shall be
binding upon the parties hereto, their successors and permitted assigns.
19.7
Relationship of the Parties: Nothing contained herein shall be deemed to create a partnership, joint venture or,
except as expressly set forth herein, any agency relationship between HPS and Merchant.
19.8
Severability: If any term or provision of this Agreement is found to be invalid, illegal or otherwise unenforceable,
the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such terms
or provisions shall be deemed modified to the extent necessary to render such term or provision enforceable,
and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the
fullest permissible extent the intent and agreements of the parties herein set forth.
No part or portion of 17.1 (Mandatory Arbitration), Section 17.2 (Choice of Forum), or Section 17.3 (Class Action
Waiver) shall be deemed so integral to either this Agreement as a whole, or to the remaining parts or portions
of Sections 17.1 through 17.3 hereof, that the unenforceability of that part or portion should have any impact
on or render the remainder unenforceable.
19.9
Choice of Law: HPS, Member Sponsor Bank, Merchant, and guarantor (if applicable) agree that any and all
disputes or controversies of any nature whatsoever (whether in contract, tort, or otherwise) arising out of,
relating to, or in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or
(c) the validity, scope, interpretation, or enforceability of the choice of law and forum provisions of this
Agreement, shall be governed by the laws of the State of Georgia, notwithstanding any conflicts of laws rule;
provided, however, that the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and
enforcement of Section 17.1 when permitted.
19.10 No Third Party Beneficiary: Under no circumstance, shall any third party be considered a third party beneficiary
of Merchant’s rights or remedies under this Agreement or otherwise be entitled to any rights or remedies of
Merchant under this Agreement.
19.11 Amendments: HPS may change the terms of or add new terms to this Agreement at any time and any such
changes or new terms shall be effective when notice thereof is given by HPS either through written
communication or on its Merchant website located at: https://infocentral.heartlandpaymentsystems.com.
Notwithstanding anything herein to the contrary, all fees, charges and/or discounts charged to Merchant
hereunder may be changed immediately and without prior written notice to Merchant, provided that HPS will
notify Merchant of any such changes promptly, either through written communication or on the Merchant
website listed above.
19.12 Public Statements: Merchant shall obtain the prior written consent of HPS prior to making any written or oral
public disclosure or announcement, whether in the form of a press release or otherwise, which directly or
indirectly refers to HPS.
19.13
Financial Accommodation: This Agreement creates a contract for the extension of financial accommodations to
Merchant within the meaning of Section 365 of the Bankruptcy Code. In the event Merchant becomes a debtor
in bankruptcy, this Agreement cannot be assumed or enforced against HPS and HPS shall be excused from
performance hereunder.
19.14
Electronic Signatures: Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this
Agreement and all electronically executed documents related hereto are legally binding in the same manner as
are hard copy documents executed by hand signature when (1) your electronic signature is associated with this
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Agreement and related documents, (2) you consent and intend to be bound by this Agreement and related
documents, and (3) this Agreement is delivered in an electronic record capable of retention by the recipient at
the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic
documents shall be governed by the provisions of E-Sign. By pressing Submit, you agree (i) that this Agreement
and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of
this Agreement and related documents, (iii) that you have the ability to print or otherwise store this Agreement
and related documents, and (iv) to authorize us to conduct an investigation of your credit history with various
credit reporting and credit bureau agencies for the sole purpose of determining the approval of the applicant for
merchant status or equipment leasing. This information is kept strictly confidential and will not be released.
20. Optional Card Brand Fees
CONVENIENCE FEE: A fee charged to the Cardholder by the Merchant for a true convenience for accepting a credit
or debit card. Examples of a “true convenience” are payment through the internet, mail order or phone order. All Card
Schemes allow merchants to charge a convenience fee. All Card Schemes must be charged equally. Merchant is
required to disclose the fee to the Cardholder and provide the Cardholder with the opportunity to cancel the Transaction,
if the Cardholder does not want to pay the convenience fee. In addition to the foregoing, (i) Visa requires merchants to
have a brick and mortar location in order to be allowed to charge a convenience fee; (ii) MasterCard requires processors
to register any government or education merchant.
SURCHARGE: A charge in addition to the initial amount of the sale on a credit card to cover the Merchant’s cost of
acceptance. All Card Schemes allow surcharging. Visa, MasterCard and Discover require merchants to register with
the Card Schemes. The Merchant is required to disclose the fee at the entry of its establishment and at the point of
sale. The Cardholder must be given the opportunity to cancel the Transaction if they do not want to pay the surcharge
fee. The amount of the charge cannot exceed the amount of the Merchant’s discount fee on Visa, MasterCard and
Discover and is capped at 4%. The surcharge must appear on the sales receipt separately from the sales amount. All
Card Schemes must be charged equally. Currently there are several states that prohibit surcharging. Merchants should
check their state and local laws prior to initiating a surcharge.
SERVICE FEE: Visa allows government and education merchants to charge a different type of fee called a “service
fee”. This fee is assessed for accepting payments for taxes, fees and fines for government MCCs and for tuition, room
and board, lunch programs, etc. for education MCC merchants. The service fee can be charged on credit and debit
Transactions, in a face-to-face or card not present environment.
The service fee must appear separate from the sales amount on the receipt. Merchants must be registered through
Visa. Service fee must be disclosed prior to completion of the transaction, allowing the Cardholder to cancel the
Transaction if they do not wish to accept the service fee. MasterCard allows government and education merchants to
charge “convenience fees” and has no separate “service fee” for these MCCs.
OTHER FEES: Handling fees and payment fees are allowed on all Card Schemes as long as these fees are charged
on all payment channels; cash, checks, ACH, etc. These are not governed by the Card Schemes specifically. State
and local laws may apply and merchants should ensure the fees are allowed in their area of business.
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© 2021 Heartland Payment Systems, LLC. All rights reserved. Heartland Equipment Agreement
Equipment Purchase, Rental & Customer Owned
Equipment Agreement (“Equipment Agreement”)
I.
Equipment Options:
As used herein, “Equipment” means the terminals, printers, readers, and accessories or hardware necessary to operate
Merchant’s chosen Heartland Payment Systems, LLC (“Heartland”) solution(s). Merchant may choose to provide its own
Equipment, may purchase Equipment from or through Heartland, may, if applicable, receive Rental Equipment (as defined
below), or any combination of these options. This Equipment Agreement provides the terms that apply to and govern each of
these options, with the terms of Section II applying to all options. This Equipment Agreement is part of and shall be governed
by the terms and conditions of the Merchant Processing Agreement (the “Agreement”) between the parties and is incorporated
therein by reference.
(a) Providing Your Own Equipment: Merchant may choose to purchase or lease Equipment from parties other than
Heartland. In such case, Heartland makes no promise that Equipment acquired through third parties (“Third Party
Equipment”) will work correctly with and for Heartland’s proprietary terminal software application (the “Software”),
Services and/or Equipment. Except as specifically stated in this Equipment Agreement, Heartland will not be responsible
for any failure, malfunction, speed or adequacy of Third Party Equipment, for performance of Heartland Software or
Services on Third Party Equipment or for repair or replacement of any Third Party Equipment except as specifically stated
in this Equipment Agreement. Heartland may elect to support certain Third Party Equipment in its sole discretion, and if
it so elects Heartland will replace and repair Merchant’s Third Party Equipment should the equipment become inoperative,
in which event Merchant will receive replacement equipment and the repaired Third Party Equipment will be placed in
Heartland inventory. Merchant will be billed for all replacements and repairs of Merchant’s Third Party Equipment.
Returned Merchant Third Party Equipment that cannot be repaired will be replaced and billed as a new purchase at then
current rates. Notwithstanding the foregoing, Heartland does not provide repair or replacement service for third party
equipment provided by third party Point of Sale (POS) System providers.
(b) Purchasing Equipment from Heartland: Merchant may choose to buy some or all of the necessary Equipment from
or through Heartland. Equipment pricing will be quoted, and must be agreed upon by Merchant (via written order form
or phone) before an order will be processed. Equipment fees will be collected via an ACH debit to Merchant’s
designated DDA account (the “Account”). Unless otherwise specifically stated in the documentation provided with the
Equipment, Heartland provides a one year warranty beginning on the date of shipment on all Heartland
supplied serialized Equipment (including its internal Software) that such Equipment shall be free from faulty workmanship
and defects in materials (“Heartland Hardware Warranty”). Equipment covered by the Heartland Hardware Warranty will
be replaced at no cost to the Merchant during the applicable warranty period. However, Equipment sold to Merchant by
or through Heartland and sent back to Heartland, but not covered under the Heartland Hardware Warranty (including,
but not limited to, Heartland supplied and sold equipment damaged by fire, lightning, water damage) will be replaced and
billed to Merchant as a new purchase at then current rates. After the warranty period, Heartland will replace such
Equipment and repair damaged Equipment at Merchant’s expense. If Equipment is damaged by the negligence or the
willful acts or omissions of Merchant, its employees, agents or customers during the applicable warranty period, Merchant
will be charged for Equipment repairs or replacements. If Equipment purchased from Heartland is returned within sixty
(60) days of purchase in Original Condition, Heartland will refund the difference less a restocking fee of $30 for new or
used repair/replacement equipment. “Original Condition” means Equipment that has not been used to process
transactions, other than to test the Equipment prior to deployment for general use. Heartland will not accept returned
Equipment after 60 days of purchase or Equipment not in Original Condition.
(c) Equipment Provided by Heartland: Merchant may choose to rent Equipment from Heartland, may receive equipment
from Heartland in connection with its receipt of software services, or may be loaned equipment by Heartland
(collectively, “Rental Equipment”). Merchant is liable for all rental payments due hereunder. Rental privileges shall last
as long as Merchant continues to remit timely rental payments and complies with its agreements with Heartland. All
Rental Equipment is and shall remain the sole personal property of Heartland and will not be deemed for any purpose to
be fixtures.
Heartland may affix or attach to all Rental Equipment a tag or label indicating its ownership of, or interest in, said Rental
Equipment and Merchant will not remove, or allow the removal of, any such tag or label. Merchant will not sell, lease,
encumber, or otherwise dispose of any interest in any Rental Equipment and will keep it free of all liens, claims or
encumbrances whatsoever. Merchant will not be liable for ordinary wear and tear of Rental Equipment. Rental Equipment
may be replaced at no expense to Merchant if a defect in the Rental Equipment cause it to become inoperable through
no fault of Merchant, its employees, agents or customers. If Rental Equipment is damaged due to the negligence or the
willful acts or omissions of Merchants, its employees, agents or customers, Merchant will be charged by Heartland for
any repairs. . Merchant will be liable for the full cost of the Rental Equipment in the event the Rental Equipment is lost,
destroyed or made inoperative. Merchant will indemnify Heartland against any loss or destruction of any Rental
Equipment for any cause whatsoever, excepting the negligence of Heartland.
If applicable, Merchant shall pay the monthly rental price indicated on the order form, and such rental fees will be collected
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monthly via an automatic ACH debit to Merchant’s designated DDA Account and will be billed monthly including the last
month in which Merchant processes transactions. Within thirty (30) days of the termination or expiration of the Agreement
(the “Return Deadline”), all Rental Equipment must be returned to Heartland at Merchant’s sole cost and expense. In
addition, should Merchant discontinue processing bankcard Transactions with Heartland prior to the expiration of the term
of the Agreement, it shall pay to Heartland an Equipment Agreement cancellation fee of $100.00. If Rental Equipment
malfunctions and Heartland issues replacement Rental Equipment, Merchant shall, within ten (10) days of receipt of the
replacement Rental Equipment, ship the malfunctioning Rental Equipment to Heartland at Merchant’s expense. If
Merchant fails to so return the malfunctioning Equipment to Heartland, or if Merchant fails to return any Rental Equipment
by the Return Deadline, Merchant shall be liable for the full replacement value of said Rental Equipment and for any costs
incurred by Heartland in connection with recovery of the malfunctioning Equipment, and Merchant’s designated Account
will be debited for all amounts due Heartland for unreturned Rental Equipment.
II. Universal Terms:
(a) Installation and Training: Heartland will program equipment for Authorization and appropriate draft capture. Heartland
will ship the Equipment at Merchant’s expense to Merchant’s designated business Location (“Location”) as set forth in
the Merchant Application and Agreement. Heartland will provide Merchant with a reasonable number of Quick Reference
Guides and/or User Guides, as applicable, to help Merchant install the Equipment. Heartland may amend the Quick
Reference Guides and/or User Guides as applicable to the equipment functionality. Merchant agrees to comply with all
applicable instructions as set forth in the Quick Reference Guides and/or User Guides when installing Equipment at the
Location. Heartland shall provide additional training as Heartland may deem necessary or appropriate. When additional
training is deemed to be necessary by Heartland, Merchant will cooperate with Heartland in scheduling its employees for
training at mutually convenient times and in making its employees available at the time scheduled. Promptly after the
completion of such training at any Location or immediately upon receipt of the Quick Reference Guides and/or User
Guides when training is not deemed necessary by Heartland, Heartland shall commence providing the Services through
the Equipment installed and connected at such Location, subject to the further terms and conditions of this Equipment
Agreement. The obligations of Heartland under this Section II (a) shall not apply to Third Party Equipment except for
Third Party Equipment that Heartland, in its sole discretion, elects to support.
(b) Software: All Heartland Software provided in connection with the Equipment is licensed (not sold) to Merchant on a
limited, non-transferable, non-exclusive basis for use by Merchant on the designated Equipment. This will be for Merchant’s
internal purposes only in conjunction with Heartland Services. Heartland Software is the sole and exclusive property of
Heartland, including all applicable rights to patents, copyrights, trademarks and trade secrets and shall be held in
confidence by Merchant. Merchant will not remove any Heartland designation mark from any supplied material.
Merchant agrees not to disassemble, decompile, reverse engineer or otherwise reduce the software to perceptible form.
Merchant may not rent, lease, sub-license or transfer the software. Merchant may not use Heartland software for any
purpose or in any manner outside this license. Heartland warrants that the software shall perform substantially in the
manner set forth in the applicable Quick Reference Guide and/or User Guide (“Heartland Software Warranty”). Third
party software is licensed or sub-licensed to Merchant under the terms, including without limitation the warranty terms, of
the manufacturer’s license and of this Equipment Agreement.
Software licensed on a subscription basis is warranted during the period the subscription is in full force and effect.
Software licensed on a standalone basis that is not part of Equipment acquired from Heartland and for which a different
warranty period is not expressly provided for in the documentation accompanying such software is warranted for ninety
(90) days beginning on the date of shipment or download. Heartland does not offer refunds on Heartland software or
software licensed or sublicensed by Heartland on behalf of a third party.
Should Heartland determine during the applicable warranty period that the software does not operate as warranted,
Heartland will, at its option, replace or repair the software. In the case of third party software, the determination whether
to replace or repair shall be made by the applicable third party software licensor.
Export Regulation. Merchant acknowledges that the Software acquired hereunder may include technical data subject to
U.S. export control laws and regulations. Merchant shall not itself, or permit any other person or entity, to export, re-
export or release, directly or indirectly, any Software or related documentation provided hereunder to any country,
jurisdiction or person to which the export, re-export or release of same is prohibited by applicable law.
U.S. GOVERNMENT RESTRICTED RIGHTS. The software and documentation are provided with RESTRICTED
RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in applicable federal law.
(c) ***Heartland Secure Breach Warranty: Heartland agrees to provide this limited warranty for the HEARTLAND SECURE
devices.
If the warrantied HEARTLAND SECURE device fails to encrypt or prevent the unauthorized decryption of cardholder data
on that particular device and that failure is proven to be a direct result of a defect or error in Heartland’s proprietary
software or hardware, Heartland will pay:
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(i) the amount of compliance fines, fees and/or assessments charged by the card brands, issuing bank or acquiring
bank, and
(ii) the amount charged for a directly related forensic audit conducted by a PCI-Certified Qualified Incident Response
Assessor (QIRA) of Heartland’s choice.
This warranty applies only if the Merchant is:
(i) using a HEARTLAND SECURE device as identified on the HEARTLAND SECURE
website: http://www.heartlandpaymentsystems.com/secure and the theft, conversion or unauthorized decryption is
proven to be directly caused by the failure of the HEARTLAND SECURE device;
(ii) a party to Heartland’s Agreement;
(iii) processing transactions through Heartland at the time the failure occurs; and
(iv) in compliance with the terms of the Agreement. The Merchant must comply with all terms and conditions of any
equipment agreement or warranty, and the merchant must implement all required updates and upgrades on the
HEARTLAND SECURE device and allow access to the device immediately upon Heartland’s request. The Merchant
must provide access and information to Heartland and others regarding any claims made by Merchant under the
warranty, including but not limited to, financial and/or forensic audits, inspections of facilities, equipment,
infrastructure and/or documents. Payment obligations under this warranty will be entirely contingent upon a final
finding by the QIRA that the HEARTLAND SECURE device failed to encrypt or prevent the unauthorized decryption
of the Merchant’s cardholder data on the HEARTLAND SECURE device.
(d) Additional Warranties and Limitations:
EXCEPT AS EXPRESSLY PROVIDED HEREIN HEARTLAND MAKES NO ADDITIONAL REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY STATED HEREIN. HEARTLAND
SPECIFICALLY DISCLAIMS WARRANTIES AS TO THE MERCHANTABILITY, CONDITION, DESIGN, OR
COMPLIANCE WITH SPECIFICATIONS OR STANDARDS, AND EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR USE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT TO ANY EQUIPMENT,
SOFTWARE OR SERVICE. HEARTLAND DOES NOT WARRANT THAT THE EQUIPMENT, SERVICE OR
SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ON AN ERROR-FREE BASIS, AND EXCEPT AS
OTHERWISE PROVIDED IN THE EXPRESS WARRANTIES MADE BY HEARTLAND IN THIS EQUIPMENT
AGREEMENT THE EQUIPMENT AND SOFTWARE ARE PROVIDED “AS IS”. HEARTLAND SHALL HAVE NO
LIABILITY TO MERCHANT FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY
DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES AND BUSINESS OPPORTUNITIES,
OR DAMAGES FOR INJURY TO PERSON OR PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE USE
BY MERCHANT OF ANY EQUIPMENT OR SERVICE.
For the avoidance of any doubt, any damages under the Secure Warranty Breach shall be subject to the limitation set
out immediately above; provided, however, in accordance with the Agreement, there shall be no direct damages
limitation on Merchant’s recovery in relation to the Secure Warranty Breach as described and subject to the warranty
language in II(c) above. Heartland’s sole obligation with respect to a warranty claim received by Heartland during the
applicable warranty period shall be to replace any malfunctioning equipment or software under warranty, provided
however, that Merchant has first utilized Heartland’s telephone assistance services and such assistance has not resolved
the Equipment or Software problem. Equipment returned to Heartland as a Repair / Replacement must be in repairable
order. Product warranties are not available for used PinPads or PinPad swaps.
In addition any PinPad swap must be of like equipment. Heartland will provide, or cause to be provided, telephone
assistance in response to telephone inquiries, twenty-four (24) hours a day, seven (7) days a week, including holidays.
These hours may be changed at any time, at Heartland’s sole discretion.
Authorization Services typically will be available through installed or connected equipment continuously twenty-four (24)
hours a day, seven (7) days a week, except that Services may be interrupted for usually no more than thirty (30) minutes
in the aggregate between the hours of 12 midnight and 8 a.m. (CST) for the purpose of system maintenance. Provision
of the Services may also be interrupted for reasons beyond the control of Heartland or any independent contractor utilized
by Heartland in providing Services. Any extended warranty programs which may be offered by Heartland with respect to
equipment or software, if any, shall be governed by the terms and conditions applicable to such extended warranty
programs.
(e) Third Party Payment Services: Use of third party payment services is subject to the terms and conditions imposed by
the third party service providers sponsoring or otherwise supporting such services (“Third Party Services Terms and
Conditions”). Merchant agrees to comply with all applicable Third Party Services Terms and Conditions and should refer
to the website of the applicable service provider and other documents provided by such service provider from time to time
for the current terms and conditions. Merchant agrees to indemnify Heartland for any losses or liabilities arising from
Merchant’s breach of any Third Party Services Terms and Conditions. Also, in Heartland’s reasonable discretion, such
a breach by Merchant may be deemed by Heartland to be a breach of the Equipment Agreement and the Merchant
Processing Agreement.
DocuSign Envelope ID: F6F49E31-3081-470A-B88C-D6ED1DCAAD04