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Credit Card Processing Agreement

PAYMENT PROCESSING TERMS AND CONDITIONS

Last Update: March 24, 2017

These Payment Processing Terms and Conditions (these “Terms”), between Capturepoint, LLC d/b/a Capturepoint (“Capturepoint”) and the customer identified in the Capturepoint Agreement of Services  (the “Client”) are incorporated into and made part of the agreement (including all orders, statements of work, attachments, exhibits, schedules and amendments thereto) incorporating these terms by reference (the “Agreement of Services”, together with these Terms, the “Agreement”) between Capturepoint and Client.

  1. Services Provided. Capturepoint agrees to provide Client, and Client agrees to accept from Capturepoint, certain payment processing services (the “Processing Services”) to Client solely for the purpose of collecting receivables (the “Receivables”) owed to Client and other authorized transactions. Client hereby appoints Capturepoint as its agent with regard to the Processing Services. Accordingly, any acceptance of Receivables by Capturepoint shall constitute full payment of such amounts to Client such that the obligations to Client for the corresponding amounts shall be deemed satisfied.
  1. Credit/Debit Card Processing Permission. Client hereby authorizes Capturepoint to initiate credit, debit, Automated Clearing House (ACH), PayPal, gift card and other payment transactions for authorized transactions (“Transactions”) on Client’s behalf utilizing Capturepoint’s own merchant account and to settle the same utilizing the ACH network or such future network as Capturepoint shall utilize. Client acknowledges and agrees that the Transactions may be processed by one or more third party transaction processors of Capturepoint’s choosing, which Capturepoint may change in its sole discretion from time to time, including the Payment Facilitator defined below (the “Processor”).
  1. Demand Deposit Account/ACH Permission. Client will establish and maintain one or more demand deposit accounts (“DDA”) to facilitate the provision of the Processing Services and the funding of Transactions. Client will at all times maintain sufficient funds in the DDA to accommodate all Transactions and all chargebacks, returns, adjustments, fees, penalties and other amounts due. Client must provide at least two (2) business days’ advance written notice before changing the DDA, and in such event, the authorization given below will apply to the new account, and Client will provide Capturepoint such information regarding the new DDA as Capturepoint deems necessary to effect payments to and from such new DDA. In accordance with the NACHA Operating Rules and the NACHA Operating Guidelines, Client hereby irrevocably authorizes Capturepoint to initiate credit and debit entries to the DDA and to credit and debit the same. The foregoing authorization will remain in effect after termination of these Terms until all of Client’s obligations to Capturepoint, and Capturepoint’s obligations to the Processor with respect to Transactions, have been paid in full. Client will indemnify and hold harmless Capturepoint, Processor, and Payment Facilitator and their respective financial institutions for any action they take against the DDA pursuant or related to these Terms, and Client will also indemnify and hold harmless the depository institution at which it maintains the DDA for acting in accordance with any instruction from Capturepoint, Processor, Payment Facilitator or their respective financial institutions regarding the DDA.
  1. Fees. Capturepoint shall be entitled to the fees set forth in the Agreement of Services for each Transaction. For clarity, the applicable fees set forth in the Agreement of Services will be charged against all types of payments processed.  The transaction rate(s) and item fee(s) shall apply to all payment transactions including but not limited to ACH transactions, Visa, MasterCard, Discover, American Express, Gift Card and PayPal credit and debit card transactions.
  1. Business Use. Client is using the Processing Services for business purposes only and to facilitate collection of payments arising from lawful business transactions.
  1. Processor and Sponsoring Banks. Capturepoint may share Client’s name, financial data and credit data with the Processor, Payment Facilitator and their respective Sponsoring Bank(s) solely for the purposes of processing transactions under these Terms and to comply with applicable law. Additionally, the Processor, Payment Facilitator and their respective Sponsoring Bank(s) are hereby designated as third party beneficiaries to these Terms. Capturepoint may change the Processor, Payment Facilitator or their respective Sponsoring Bank(s) at any time without notice to Client.
  1. Payment Facilitator Terms of Use. Client acknowledges that Capturepoint may use a third party payments facilitator in connection with Capturepoint’s provision of the Processing Services (the “Payment Facilitator”), and some Payment Facilitators require Capturepoint to obtain Client’s consent to its terms of use governing its services provided to Client in connection with the Processing Services. Should this Payment Facilitator be used by Capturepoint, Client agrees to such terms and conditions found on the Payment Facilitator’s website at http://www.propay.com/legal-agreements/propay-submerchant-terms-and-conditions/, which may be updated from time to time. Should Capturepoint use an additional or alternate Payment Facilitator, Capturepoint will make Client aware of any applicable terms and conditions. Client agrees that Capturepoint and Payment Facilitator may share any Client and financial information, including, without limitation, transaction details and business or personal information, with one another solely for the purposes of processing transactions under these Terms and to comply with applicable law.
  1. Refunds. Client authorizes Capturepoint to initiate refunds for Transactions in accordance with Capturepoint’s published refund policy, as amended from time to time, and to deduct such refunds from Client’s DDA.
  1. Settlement of Transactions. Client acknowledges that all settlements between Capturepoint and Client are provisional and are subject to the Client’s right to dispute the charges against the applicable obligor’s account. Upon notification of a chargeback or retrieval request, Client agrees to supply Capturepoint with all supporting documentation regarding a specific transaction. Capturepoint shall, at its sole discretion, be entitled to debit the Client’s DDA or invoice Client for the amount of any chargeback or unpaid return. Client authorizes the depositary institution(s) at which the DDA is held (a) to grant Capturepoint, the Processor, and/or the Payment Facilitator any and all information to records regarding the DDA, (b) to hold funds in the DDA in amounts which Capturepoint deems sufficient to protect its rights under the Agreement and (c) to immediately comply with any such demand for payment and direction from Capturepoint, the Processor, and/or Payment Facilitator.
  1. Termination. You agree that if you materially breach a term of this agreement or the card organization rules that are applicable to you, we have the right to provide you with written notice of our intent to terminate this agreement unless you remedy your material breach within 30 days of receipt of our notice. You further agree that we may immediately terminate this Agreement and exercise all of our rights and remedies under the applicable law and this Agreement if any of the following events occurs: (i) a material adverse change in your business or financial condition including bankruptcy or insolvency proceedings commenced by or against you; (ii) any merger, amalgamation, assignment or transfer of your or your assets; (iv) fraud; or (v) irregular card sales, excessive chargebacks or any other circumstances which, in our judgement, may increase our risk of loss.
  1. DISCLAIMER. CAPTUREPOINT WILL USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM THE PROCESSING SERVICES IN ACCORDANCE WITH THESE TERMS, AND CAPTUREPOINT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES. CAPTUREPOINT DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT THE TRANSACTIONS THAT IT SUBMITS TO CAPTUREPOINT WILL BE PROCESSED BY A THIRD-PARTY PROCESSOR, AND THAT CAPTUREPOINT MAKES NO WARRANTIES ABOUT THE SERVICES PROVIDED BY SUCH THIRD-PARTY PROCESSOR.
  1. Compliance. Client covenants and agrees that it shall conduct its business or operations at all times in compliance with all (a) applicable laws rules, and regulations of the United States and other relevant jurisdictions; (b) standards, bylaws, rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any entity formed to administer and promote ACH, credit, debit and other cards, such as NACHA, MasterCard International, Inc., Visa, Inc., Discover Financial Services, LLC, and any applicable debit networks; and (c) the industry standards and rules that govern the payments industry generally, including, without limitation, the Payment Card Industry Data Security Standard (PCI-DSS) and Payment Application Data Security Standard (PA-DSS), that are promulgated by industry authorities. Except for software, systems and payments gateways provided by Capturepoint, Processor or Payment Facilitator, Client is responsible for ensuring all software, systems and payment gateways utilized by Client are compliant with this section.
  1. Amendment. Capturepoint may periodically update these Terms and may amend, modify, alter, or terminate all or a portion of the Processing Services to the extent required or necessary to comply with applicable laws or the rules, regulations, or requirements of any payment network or association (e.g. card networks, NACHA, PCI-DSS, etc.) or as otherwise required by the Processor, Payment Facilitator or their respective Sponsoring Bank(s). Unless you notify Capturepoint in writing that you object to the terms of the revised Agreement within twenty (20) business days of your receipt of these Terms as so revised, the revised Terms shall govern and control your use of the Processing Services as of the effective date of the revised Terms.