Merchant Terms H72

These CardX Client Terms and Conditions (these “Terms”) are entered into by and between CardX, LLC (“CardX”) and the merchant (“Client”) that completed the CardX Client Application (the “Application”), effective as of the date CardX accepts the Application by commencing Services (as defined below) to Client.

In consideration of the mutual agreements contained herein and intending to be legally bound hereby, the parties agree as follows:

Please note that, based on standard processor settings, the discount rate is assessed on your sales volume in gross, meaning all volume including any sales that may be refunded or charged back.

Scope and Relationship.

(a) These Terms govern and control the Application and Client’s use of CardX’s proprietary payment solutions, including its compliant surcharging solution further described in Schedule 1, and associated services (collectively, the “Services”). CardX may amend these Terms in its sole discretion at any time. The most recent version of these Terms will be posted and available at www.cardx.com/merchant-terms-h72. Client agrees that such posting constitutes adequate notice to inform Client of any amendments to these Terms, and Client further agrees to be bound by any such amendments to these Terms upon such notice. EACH OF CLIENT’S SIGNING THE APPLICATION AND USE OF THE SERVICES CONSTITUTES CLIENT’S ACCEPTANCE OF AND AGREEMENT TO THESE TERMS.

(b) These Terms and the Services are at all times subject to applicable laws, regulations and card network (e.g., Visa and Mastercard) rules (collectively, “Applicable Law”) and CardX’s agreement with Client’s payment processor (“Processor”) which enables CardX’s payment solutions hereunder (“CardX Processor Agreement”).

(c) Client acknowledges and agrees that Client’s relationship and agreement(s) with Processor (“Client Processor Agreement”), and any services, obligations or transactions in connection therewith, are solely between Client and Processor, and CardX shall have no responsibility or liability arising therefrom.

Licenses.

(a) In consideration for the fees set forth in the Application and the Client Processor Agreement and further described herein (“Fees”), and subject to the other provisions of these Terms, CardX hereby grants to Client during the Term (as defined below), a non-exclusive, revocable, non-sublicensable, non-transferable, limited license and right, in the “Permitted States” set forth on Schedule 2, as updated from time to time (“Permitted States”), to use the Services solely for the purpose of processing payment transactions initiated by Client’s customers.

(b) Client hereby grants to CardX a non-exclusive, non-transferable, royalty-free license to copy and use, and share with Processor, any and all information and content that Client provides to CardX, via the Services or otherwise, solely for the purposes of providing the Services to Client and complying with Applicable Law and the CardX Processor Agreement.

Fees.

(c) Client shall owe Fees as set forth in the Application and the Client Processor Agreement. Based on standard processor settings, the discount rate set forth in the Client Processor Agreement is assessed on Client’s gross transaction volume, which includes the aggregate amount of all transactions, even if subject to refunds or chargebacks. Client acknowledges and agrees that no Surcharge (as defined below) will be applied with respect to a transaction: (a) if either the billing or shipping address in connection with such transaction is located in a Prohibited State/Territory (as defined below), (b) the transaction is initiated using a debit card or prepaid card, or (c) in excess of a percentage of the transaction amount equal to the lesser of 4% or Client’s discount rate.

Term and Termination.

(a) Unless earlier terminated in accordance herewith, these Terms shall be effective upon the Effective Date and continue until terminated by either party as set forth herein (such period, the “Term”). Either party may terminate these Terms at any time, for any reason, upon 30 days prior written notice to the other party. Without limiting CardX’s other rights and remedies under these Terms or applicable law, CardX may immediately terminate these Terms and/or suspend access to the Services, in whole or in part, with or without notice, if CardX determines, in its sole discretion, that: (i) Client is not in compliance with these Terms, the Client Processor Agreement or any Applicable Law; (ii) Client is, or is likely to be, engaging in suspicious, wrongful, fraudulent and/or deceptive conduct or activities that could have an adverse impact on CardX, the Services or CardX’s business; (iii) Client becomes involved in voluntary or involuntary bankruptcy or insolvency proceedings or is otherwise financially insecure; or (iv) the CardX Processor Agreement is terminated or Processor or an applicable payment network directs CardX to terminate these terms and/or suspect Client’s access to the Services. Client’s obligations regarding transactions survive any termination hereof.

Client Obligations.Client shall, at all times during the Term:

(a) Comply with all Applicable Law in connection with its use of the Services and related activities, including in connection with fees added to credit card transactions for the acceptance of such credit card payments (“Surcharges”), including all disclosure and notice obligations (provided that the parties acknowledge and agree that the Services will assist Client’s compliance with Applicable Law related to Surcharges in all Permitted States), and not accept, or access or use the Services in connection with, any transactions initiated in, or with a billing or shipping address in, any of the “Prohibited States/Territories” set forth on Schedule 2, as updated from time to time (“Prohibited States/Territories”);

(b) Comply with all, and not circumvent or subvert or attempt to circumvent or subvert any, policies, rules, requirements or instructions applicable to the Services;

(c) Notify CardX immediately upon learning that any information provided to CardX is inaccurate or that it assessed a Surcharge in violation of Applicable Law;

(d) Provide CardX with complete and accurate information (including transaction information) in connection with its use of the Services and, upon request, fully cooperate with CardX and provide CardX any information reasonably necessary for CardX to comply with Applicable Law and the CardX Processor Agreement, or to timely submit any applications, registrations, or other documents to the card networks or other regulatory bodies;

(e) Keep confidential, not disclose to any third party or use for any purpose, and use reasonable efforts to prevent unauthorized disclosure, access to, or use of, all non-public information provided to Client by CardX and all non-public information about CardX to which Client otherwise has access (“Confidential Information”), and maintain the Confidential Information as it does its own similar information, but with no less than a reasonable degree of care;

(f) Use best efforts to prevent unauthorized disclosure, access to, or use of the Services, and not rent, lease, assign, sublicense, transfer, distribute, allow access to, timeshare, disassemble, decompile, decrypt, extract, reverse engineer or modify the Services; and

(g) Comply with the additional requirements set forth in Paragraph B of Schedule 1 hereto.

Client Representations and Warranties.

Client represents and warrants to CardX that: (a) it has full right, title and authority to execute and deliver the Application and accept and agree to these Terms and to fulfill its obligations under these Terms, creating legal obligations that are enforceable against it; (b) it has and will maintain all necessary rights, authorizations, licenses, registrations and permits required for the operation of its business and conduct of its activities in connection with these Terms; (c) its performance of its obligations hereunder shall not violate or create a conflict of interest with regard to any other agreement to which Client is or shall become a party and shall not violate any law, court order or decree to which Client is, or shall become, subject; (d) it does and will comply with all Applicable Law (and, if applicable, Payment Card Industry Data Security Standards) applicable to the operation of its business and conduct of its activities in connection with the Services and these Terms; and (e) it does and will comply with the Client Processor Agreement.

DISCLAIMERS.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CARDX (A) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) MAKES NO REPRESENTATION OR WARRANTY THAT ANY CONTENT, DATA, TECHNOLOGY, SYSTEMS, NETWORKS OR SERVICES PROVIDED BY CARDX UNDER THESE TERMS WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE. WITHOUT LIMITING THE FOREGOING, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY CLIENT FROM CARDX SHALL CREATE ANY WARRANTY.

Indemnification.

(a) Client shall defend, indemnify and hold harmless CardX, its affiliates and each of their officers, directors, shareholders, employees and agents (collectively, “Indemnified Parties”) from and against any and all third-party claims or governmental or regulatory actions of any kind (collectively “Claims”), and any losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable outside attorneys’ fees) (collectively “Losses”) attributable, directly or indirectly, to Claims, based upon, relating to or arising out of: (i) the negligence or willful misconduct of Client; (ii) a breach of any of Client’s representations, warranties or obligations hereunder; (iii) any unauthorized access to or use of the Services; or (iv) Client’s acts or omissions in connection with the Client Processor Agreement and Client’s relationship and transactions with Processor, other than resulting directly from the CardX’s provision of the Services. Without limiting the foregoing, Client will promptly reimburse CardX for any Losses imposed on CardX by a card network or regulatory body due to a breach of Applicable Law or a data security breach for which Client is responsible, as determined by the regulatory body or card association under its operating rules.

(b) Subject to the other provisions of these Terms, CardX shall indemnify and hold harmless Client from and against any and all actual out-of-pocket Losses incurred by or imposed upon Client based upon or arising out of Client’s use of the Services in accordance with these Terms solely if and to the extent that: (i) such Losses are a direct result of Claim(s) against Client by a card network or regulatory body in connection with such use of the Services; (ii) such Losses and such Claim(s) do not arise from Client’s negligence, misconduct or breach of any of Client’s representations, warranties or obligations under these Terms; (iii) Client demonstrates that its use of the Services was, at all relevant times, in compliance with these Terms and CardX’s policies and guidelines (as posted on CardX’s website and updated from time to time, or otherwise communicated to Client in writing); (iv) Client notifies CardX of the possibility, threat or existence of such Claim(s) that may create an obligation of, or liability to, CardX under these Terms within ten (10) business days of learning thereof; and (v) Client cooperates with CardX, as reasonably requested by CardX, to resolve and/or defend any possible, threatened or actual Claim(s) and resolve or appeal any Losses.

LIMITATIONS ON LIABILITY.

(a) IN NO EVENT SHALL CARDX BE LIABLE TO CLIENT FOR ANY LOSSES OR CLAIMS ARISING OUT OF OR RELATING TO THE PERFORMANCE OR USE OF ANY SERVICES OF PROCESSOR OR ANY ACT OR OMISSION OF PROCESSOR.

(b) IN NO EVENT SHALL CARDX BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, WHETHER SUCH DAMAGES OR LOSSES ARE ALLEGED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

(c) CARDX’S MAXIMUM LIABILITY OTHERWISE ARISING OUT OF OR RELATING TO THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE FEES RETAINED BY CARDX (INCLUDING FEES REMITTED TO CARDX BY PROCESSOR) IN CONNECTION WITH PROVISION OF THE SERVICES TO CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

Force Majeure.

Any delay or failure in performance hereunder shall not constitute a breach hereof, and CardX shall have no liability to Client therefor, if performance is rendered impracticable due to any occurrence beyond the reasonable control of CardX.

Miscellaneous.

There are no third-party beneficiaries of these Terms. Each party is an independent contractor of the other party. Nothing herein will constitute a partnership between or joint venture by or between the parties, nor shall either party constitute the agent of the other party. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that these Terms may not be assigned or transferred by Client without the prior written consent of CardX. A failure on the part of CardX to enforce any part of these Terms shall not constitute a waiver of any of CardX’s rights hereunder for past or future actions. If any provision of these Terms is determined to be invalid, illegal or unenforceable, all other conditions and provisions of these Terms shall nevertheless remain in full force and effect. These Terms shall be governed by the laws of the State of Illinois, without regards to conflicts of law principles. Each party irrevocably consents to the exclusive forum and jurisdiction of the state and federal courts in Cook County, Illinois for any matter arising out of these Terms, except for pursuit of equitable relief. CardX and Client each waive its right to have a jury participate in the resolution of any dispute or claim between the parties arising under these Terms. The Application and these Terms constitute the entire agreement between Client and CardX with respect to the subject matter hereof and supersedes all prior agreements or understandings relating thereto.

Schedule 1

Compliance

The Services will include the following compliance functions:
Completion of required card network registrations for surcharging;
Determination as to whether a transaction was initiated using a credit card or a debit card;
Disclosure of the existence and amount of any Surcharges on payment page(s) and receipts (including, if the Surcharge is calculated as a percentage of the transaction amount, clear disclosure of the dollar and cents amount of the Surcharge);
Providing option to cancel a transaction before submission;
Sending to the Processor the transaction amount and Surcharge amount together as a single transaction;
Not applying a Surcharge with respect to a transaction if either the billing or shipping address in connection with such transaction is located in a Prohibited State/Territory; and
When issuing a refund of the transaction amount, refunding any Surcharge assessed on the transaction amount (pro-rated for partial refunds).
Notwithstanding the foregoing, Client shall at all times during the Term undertake, and be responsible for, the following with respect to any channels or materials outside of CardX’s control:
Disclosure of the existence and amount of any Surcharges on a stand-alone basis (a) verbally, with respect to phone orders, and (b) in locations that the consumer is likely to see prior to committing to a transaction, including (but not limited to), as applicable, signs or postings, webpages, advertising materials, catalogues or menus.
Providing disclosures that are prominent and easily visible to customers, including, but not limited to, placing disclosures prominently, using a font size comparable or larger than surrounding text, in a contrasting color or with other visual elements intended to highlight the information. Additionally: (a) on websites, the information should appear, at a minimum, before proceeding to checkout, in addition to other pages; (b) if a point-of-sale register is being used for the transaction, the sign should be located near the register such that a customer would see it prior to initiating the checkout process; (c) on a sign prominently near an entrance or other high-traffic part of the facility (if applicable); and/or (d) on a receipt, the disclosure will be broken out as its own line item, showing a dollar amount and how that dollar amount is added into the total cost.
Using the word “surcharge” to describe the fee, accurately reflecting the reason for the Surcharge and describing it as a Surcharge for accepting credit cards, and not characterizing the surcharge in a way that suggests it is not being imposed by the business itself (such as calling it “mandatory”) or that it is being imposed solely to cover credit card costs.
If the Surcharge is calculated as a percentage of the transaction amount, clearly disclosing in writing the dollar and cents amount of the surcharge prior to processing the charge; provided that, in the context of a card not present transaction, the dollar amount of the surcharge must be disclosed prior to processing the consumer’s credit card.
When issuing a refund of the transaction amount, also refunding any Surcharge assessed on the transaction amount (pro-rated for partial refunds).
Not accepting any card present transactions in connection with the Services.

Schedule 2

Permitted States

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Prohibited States/Territories

Connecticut
Massachusetts
Puerto Rico