Merchant Agreement

These Merchant Agreement Terms and Conditions (these “Terms and Conditions”) are agreed to by and between Guesty Payment Services, LLC, a Delaware entity having a registered office at 919 North Market Street, Suite 950, Wilmington, Delaware 19801 (“Guesty”), and the legal entity or sole proprietorship identified on the Merchant application to the service (“Merchant”).

These Terms and Conditions, any exhibits hereto, and other documents that are incorporated by reference including but not limited to the terms and conditions provided by Guesty’s banks, are collectively referred to as the “Agreement”. As an integral part of the Agreement, Guesty and Merchant hereby agree as follows:

A. Guesty’s banks participate in programs affiliated with American Express (“American Express”) MasterCard International Inc. (“MasterCard”), VISA U.S.A. Inc. (“VISA”), Discover (“Discover”), and certain similar entities (collectively, “Associations”), including, but not limited to any network providing PIN-based debit card transaction services (collectively, “Other Networks” and collectively with Associations, “Card Networks”; each Association or Other Network may be individually referred to as “Card Network”) that enable holders of MasterCard, VISA, Discover and Other Networks cards (collectively “Cards”). Guesty partners with banks to process payments under this Agreement, each referred to as “Bank” herein.

B. Merchant wishes to participate in the Card Networks’ systems by accepting Cards from any person authorized to use the Cards or the accounts established in connection with the Cards (collectively “Cardholders” or individually “Cardholder”) for the sale of its goods and services through the use of Cards.

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the parties agree as follows:

Rules and Regulations.

Merchant agrees to participate in Card Networks’ systems in compliance with, and subject to, the by-laws, operating regulations and/or all other rules, policies and procedures of such Card Networks (collectively “Operating Regulations”). Merchant agrees to participate in the Card Networks in compliance with, and subject to, the Operating Regulations. Without limiting the foregoing, Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), Card Networks, including but not limited to, the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Card Networks. The Operating Regulations may prohibit Guesty from providing Merchant with a copy of the Operating Regulations and such prohibition shall not alter or limit Merchant’s obligation to comply with the Operating Regulations. Merchant expressly acknowledges and agrees that it is assuming the risk of compliance with all provisions of the Operating Regulations, regardless of whether Merchant has possession or knowledge of those provisions. Merchant shall take all steps necessary to review and obtain all publicly available information that relates to or references the Operating Regulations including, without limitation, all information available on the Card Networks’ internet sites, and to educate itself and its employees on all provisions thereof. For purposes of this Agreement, “Service” or “Services” shall mean any and all services provided by Guesty pursuant to this Agreement, as described herein. Other defined terms and Services applicable to this Agreement may be contained in addenda, exhibits, schedules, or amendments (collectively, “General Addenda”) to this Agreement, including but not limited to the Additional Services Pricing, as may be modified from time to time by Guesty. The parties agree that such General Addenda shall be incorporated into and made part of this Agreement.
Acceptance of Cards.
1. Merchant will honor any valid Card properly tendered for use that falls within Merchant’s designated categories of acceptance, check each Card for validity and currency, and examine one or more Card security features before completing a Card transaction. For purposes of this Agreement, “transaction” means any sale of goods and services, or credit for such, from Merchant for which the customer makes payment through the use of any Card and which is presented to Bank for collection. Merchant may not discriminate between payment Cards within a payment network on the basis of the Card issuer that issued the presented payment Card. When accepting any Card and completing any Card transaction, Merchant shall follow all procedures and rules in the Operating Regulations, including but not limited to, obtaining authorization for all sales transactions. In the event Bank for whatever reason is unable to obtain, or due to system delays chooses not to wait to obtain, authorization from the applicable Card Network, Merchant agrees to accept Cards for transactions, exclusive of duly notified surcharges, for the advertised price as a condition of Card acceptance, unless the Laws require Merchant be permitted to engage in such practice. Merchant shall not establish minimum or maximum transaction dollar value for Signature-Debit or PIN-debit or Card sales as a condition for accepting such Card. However, Merchant may set a minimum transaction dollar value for the acceptance of a Card that is a credit card, only to the extent that: (i) such minimum dollar value does not exceed $10; (ii) such minimum dollar value is the same for all issuers or payment card networks; and (iii) complies with all Operating Regulations. If Merchant is a federal agency or institution of higher education, Merchant may set a maximum dollar value for the acceptance of Cards that are credit cards, to the extent that such maximum dollar value is the same for all Issuers or payment card networks, subject to restrictions set forth in the Operating Regulations. Merchant will obtain prior authorization for the total amount of a transaction via electronic terminal, gateway or other compliant and certified device before completing any transaction, and Merchant will not process any transaction that has not been authorized. Merchant will follow all instructions received during the authorization process. Upon receipt of an authorization approval, Merchant may consummate only the transaction for which it has received authorization. Where authorization is obtained, Merchant will be deemed to warrant the true and matching identity of the customer as the Cardholder. Any transaction that is not properly authorized is made with full recourse and may be charged back to Merchant. Unless otherwise permitted under the Operating Regulations, Merchant may not attempt to obtain an authorization by successively decreasing the sale amount. 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 or inserting the Card through the Card reader of the equipment (or tapping the EMV Card in the case of an EMV transaction) thereby causing the equipment to electronically read a magnetically encoded stripe or EMV chip on the reverse side of each Card, except Card-Not-Present transactions. Any transaction that cannot be authorized electronically through the equipment or manually key entered is subject to additional authorization requires required by Bank and/or Card Networks. Merchant shall obtain an authorization prior to completing a Card-Not-Present transaction in compliance with the terms of this Agreement and the Operating Regulations. If Merchant’s point-of-sale terminal or equipment is not EMV chip-enabled technology, Merchant may be held liable for card-present fraud. EMV acceptance requires an EMV enabled standalone terminal or point of sale system. Bank is able to process EMV transactions, which may help reduce fraud. Authorizations are not a guarantee of acceptance or payment of the sales draft or that the transaction will not be subject to dispute or chargeback. Authorizations do not waive any provisions of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired or otherwise invalid Card. Bank may at its option “stand-in” for such entities and authorize the sales transaction based on criteria established by Bank, and Merchant remains responsible for such sales transaction in accordance with this Agreement. Merchant shall note each authorization and authorization number obtained in the appropriate place on the sales record. All sales records and credit records will be on a form or format acceptable to Guesty and in compliance with Operating Regulations and shall include: (i) the Cardholder’s signature, (ii) the signature of the authorized user (if different), (iii) the date, (iv) a description of the merchandise sold or services rendered, and (v) the total amount of the transaction. At least one copy of the sales record or credit record will be delivered to the Cardholder. Merchant will enter the data related to a sales or a return transaction into a computer terminal or magnetic stripe reading terminal and transmit daily transactions no later than the close of business on the date the transactions are completed (unless otherwise permitted by the Operating Regulations). This process will be referred to as a batch close. Failure to do so may result in the assessment of transaction penalties. Merchant shall also follow the Operating Regulations and any other procedures of which Guesty may notify it of in writing from time to time with respect to clearing and settlement files. Merchant shall not prepare more than one sales draft for a single sale or for a single item and shall include all items or goods and services purchased in a single transaction in the total amount on a single sales draft except: (i) for purchases in separate departments of a multiple department store; (ii) for installment payments; or (iii) for delayed or amended charges governed by the Operating Regulations for travel and entertainment merchants and transactions. Merchant shall not submit duplicate transactions. All sales records delivered to Guesty by Merchant will represent obligations of a Cardholder in amounts set forth therein for merchandise sold or services rendered only and shall not involve any element of credit for any other purpose. Merchant represents that as of the date any sales record is delivered to Guesty, Merchant has no knowledge or notice, or any reason to know of a fact, that would impair the validity of the sales record or its collectability. Merchant shall not make any special charge or extract any special agreement, condition, or security from a Cardholder in connection with any sales transaction. The presentment of sales drafts to Guesty for collection and payment is Merchant’s agreement to sell and assign its right, title and interest in each sales draft completed in conformity with acceptance procedures provided by Guesty and shall constitute an endorsement by Merchant to Guesty of such sales drafts. Merchant hereby authorizes Guesty to supply such endorsement on Merchant’s behalf. Merchant agrees that this Agreement is a contract of financial accommodation within the meaning of Bankruptcy Code (11 U.S.C. § 365) as amended from time to time. Merchant shall establish, maintain, and disclose to Cardholders a fair and consistent policy for the exchange or return of merchandise, give proper credit or refund for all such exchanges or returns and issue credit records for amounts due the Cardholder. All disputes between Merchant and any Cardholder relating to any transaction will be settled between Merchant and the Cardholder. Guesty bears no responsibility for such transactions. Merchant must not require a Cardholder, as a condition for honoring a Card, to sign a statement that waives the Cardholder’s right to dispute the transaction with the Card issuer or Card Network. For purpose of this Agreement, “sales draft” means the paper form, approved in advance by Guesty, whether such form is electronically or manually imprinted, evidencing a sale transaction.
2. Cardholder Identification and Card Examination. Merchant agrees to swipe or imprint the Card, or where applicable, insert the EMV enabled chip Card into a reader, and only allow Cardholders to purchase Merchant’s goods and/or services. Merchant will identify the Cardholder and check the expiration date and signature on each Card. Merchant will not honor any Card if: (i) the Card has expired; (ii) the signature on the sales draft does not correspond with the signature on the Card; (iii) the account number embossed on the Card does not match the account number on the Card’s magnetic stripe (as printed in electronic form); or (iv) the Card was declined as a result of an authorization attempt. Merchant may not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address; or a driver license number as a condition for honoring a Card unless permitted by the Laws and the Operating Regulations. Merchant will use reasonable, best efforts and peaceful means to recover any Card if: (i) Merchant is advised by Guesty, the issuer of the Card or the designated voice authorization center to retain it; or (ii) if Merchant has reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder. NOTE: The obligation of Merchant imposed by this section to retain or recover a Card does not authorize a breach of the peace or any injury to persons or property, and Merchant will hold Guesty harmless from any claim arising from any injury to person or property, or other breach of the peace in connection with the retention or recovery of a Card.
3. If appropriately indicated herein, Merchant shall be a Limited Acceptance Merchant, which means that Merchant has elected to accept only certain Visa and Mastercard card types as indicated on the Application, or via later notification. Guesty has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Guesty’s obligations do not include policing card types at the point of sale. Merchant will be solely responsible for the implementation of its decision for Limited Acceptance, including, but not limited to, policing the card type(s) of transactions at the point of sale submitted for processing by Guesty. Should Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Guesty may process that transaction and Merchant will pay the applicable fees, charges, and assessments associated with that transaction. Solely for Merchant’s convenience, a general and non-exhaustive description of Visa and Mastercard card types are: (i) Consumer Credit – a consumer credit card issued by a U.S. issuer or a commercial credit card issued by a non-U.S. issuer; this category does not include Visa or Mastercard branded signature-based debit cards; (ii) Consumer Debit – a Visa or Mastercard branded signature-based debit card (including certain stored-value and prepaid cards); and (iii) Commercial – a Visa or Mastercard branded credit card issued by a U.S. issuer that bears the descriptive term “Business Card”, “Corporate Card”, “Purchasing Card”, “Fleet Card”, or similar descriptive term indicated pursuant to the Operating Regulations.
4. Processing Transactions and Statement Review. It is Merchant’s responsibility to ensure that it and its employees use Services in accordance with the Operating Regulations, the data security standards established by PCI-DSS, from time to time, the operating manual and procedures of the Card Networks, and all Laws related to Cardholder Data (as defined by PCI-DSS). Merchant acknowledges that it is its responsibility to obtain the most recent versions of, and that it has reviewed, the Operating Regulations, the PCI data security standards, and the operating manual and procedures, and Merchant acknowledges that it has reviewed them. Merchant will not process Transactions prohibited by the Laws, the Operating Regulations, or this Agreement. Merchant is responsible for managing its business operations and the actions of its employees (or any other person that uses the Services). Merchant will not use services provided by Guesty to process transactions for another person, entity or merchant. Merchant agrees that each transaction: (i) will be in the ordinary course of your business; (ii) not involve a cash advance (unless as authorized by the Operating Regulations); and (iii) not cover an existing debt or a dishonored check or debt. Merchant will not accept Card-Not-Present transactions unless it receives Guesty’s prior written consent. Merchant statements are available for review using an electronic reporting system that Guesty may make available to Merchant from time to time or, if elected by Guesty, in paper form, and it is Merchant’s obligation to review such statements. Merchant will review all of the transactions listed on the statement, and tell Guesty in writing within 30 days of receipt in the case of paper statements, or within 30 days of the transaction date for activity viewed electronically, about any concerns, including suspected omissions, incorrect debits or inaccurate transactions or fees. If Merchant does not receive a statement or if Merchant is unable to view transaction activity or statement electronically, it must promptly notify Guesty. If Merchant fails to provide notice of any error, concerns, inaccuracies or omissions related to a statement within 30 days of receipt of such statement, Merchant agrees that all transactions and statement activity, including fees, listed on the statement are correct and Merchant releases Guesty from any claim relating to any activity or transaction listed on the statement and any item suspected to be missing from the statements.
5. These terms are in addition to any other Bank terms applicable to chargebacks. Merchant and guarantor(s) are fully liable for all chargebacks. Merchant will pay to Bank upon presentation the value of all chargebacks. Authorization is granted by Merchant to Guesty and Bank to offset from incoming transactions and to ACH debit the Designated Account, the Reserve Account or any other account held at Bank or at any other financial institution the amount of all chargebacks. Merchant will fully cooperate in complying with the Operating Regulations regarding chargebacks. Merchant agrees that failure to pay a chargeback upon such presentation shall be considered a material breach of this Agreement and Merchant, in addition to any other remedies which may be exercised by Guesty or Bank, shall be charged a late fee of the maximum allowed by the Laws. Merchant agrees to accept for chargeback any transaction or sale for which the Cardholder disputes the validity of the transaction or sale according to the Operating Regulations, or Guesty determines that Merchant has in any way failed to comply with the Operating Regulations, this Agreement or Guesty and Bank’s procedures, including, but not limited to, the following: (i) sales draft is illegible, not signed by the Cardholder or has not been or cannot be presented to Bank within the required time frame(s); (ii) sales draft does not contain the Imprint of a valid unexpired Card; (iii) an authorization has not been obtained and/or a valid authorization number has not been correctly and legibly recorded on the sales draft; (iv) sales draft is a duplicate of a prior transaction or is the result of two or more transactions generated on one Card for a single sale; (v) Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased; (vi) price of goods or services on the sales draft differs from the amount which Merchant presents for payment; (vii) transaction results from an Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the transaction or the transaction has been made on an expired or non-existing account number; (viii) Guesty reasonably believes, within its sole discretion, that Merchant has violated any provision of this Agreement; (ix) Guesty or Bank reasonably determines that the transaction record is fraudulent or that the transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation, negligence, fraud, or dishonesty on the part of Merchant or Merchant’s agents or employees; or (x) for whatever reason pertaining to not complying with the Operating Regulations. Notwithstanding any authorization or request from a Cardholder, Merchant shall not initiate a sale transaction in an attempt to collect a chargeback. Merchant agrees to pay chargeback fees as indicated on the Application for chargebacks received by Bank regardless of outcome of a Merchant dispute of such chargeback.
Maintenance of Records.

Merchant shall maintain records pertaining to transactions acquired by Guesty hereunder for at least a period of one year from the date of the transaction or as otherwise required by the Operating Regulations, and Guesty may examine and verify such records at Guesty’s option. Merchant shall retain legible paper copies of each transaction for at least ninety (90) days, and further agrees to deliver such paper copy to Guesty or to Guesty’s designee within any applicable period pursuant to the Operating Regulations, or the Laws. If Merchant fails to retain a paper copy of any such transaction after ninety (90) days, Merchant will retain and deliver to Guesty upon request an image of such transaction in a form acceptable to Guesty to enable Merchant and Guesty to comply with the Operating Regulations, and the Laws. Merchant will be solely responsible for all liabilities arising from any failure to provide an acceptable transaction copy as required herein.
Guesty’s Responsibilities.
1. Gusty will initiate (via Bank) payment to Merchant of the amount of each sales transaction acquired and accepted hereunder after Bank receives payment for such transaction; it being understood that Bank is solely responsible for the settlement and payment of all transactions. Notwithstanding anything herein to the contrary, any such payment shall be subject to the terms and conditions of this Agreement, the Operating Regulations, and the Laws. Unless otherwise agreed to in writing by Guesty, Merchant shall electronically deliver to Bank, in a format acceptable to Guesty, all sales records and credit records within two (2) business days after the transaction date for such record (or such shorter period as required by any Card Network), except (i) in the case of a delayed merchandise delivery, when the sales transaction record shall be delivered within two (2) business days of the merchandise delivery or (ii) as specified otherwise in the Operating Regulations. Merchant agrees that it shall deliver sales records to Guesty at least every 24 hours. The preparation and delivery of sales records constitutes an endorsement by Merchant to Guesty of each sales transaction evidenced thereby, and Merchant authorizes Guesty, Bank, or their representatives to place Merchant’s endorsement on any such sales transaction at any time. Guesty or Bank may refuse to acquire any sales transaction or claim the amount of which, in whole or in part, it could charge back to Merchant pursuant to this Agreement, if it had acquired the sales transaction or claim. Merchant waives notice of dispute related to any individual sales transaction. Merchant hereby consents to extensions of time granted, or compromises made, with any Cardholder liable on any sales transaction without affecting Merchant’s liability for the same hereunder. Merchant agrees that Guesty may set off any amounts due to Guesty from amounts due to Merchant, including but not limited to demand deposit accounts and any other amounts due to Merchant from Guesty and/or any of its affiliate(s) whether or not such amounts are related to this Agreement.
2. Bank may intercept and settle Merchant transactions directly with other entities processed by Bank. The Services shall be provided in accordance with Guesty’s then current systems, standards, and procedures, and Guesty shall not be required to perform any special programming, to provide any special hardware or software, or to implement any other system, program, or procedure for Merchant. Bank may hold back any sums due to Merchant in its sole discretion in the event of any losses or potential losses (which may include investigations, or a violation of these Terms and Conditions, including Section 11).
3. Guesty may honor the request(s) or instruction(s) of any purported representative (whether authorized or unauthorized) of Merchant or its Agent at any time during the term of this Agreement, and Guesty may act in reliance upon such request(s) or instruction(s) in connection with Gusty’s provision of the Services hereunder.
Certain Merchant Responsibilities.
1. Merchant agrees to reacquire and pay Guesty the amount of any sales transaction, and Bank shall have the right at any time to charge Merchant’s Account therefore, without notice, in any appropriate situation, including, but not limited to, those relating to such sales transaction or activity where: (i) merchandise is returned, whether or not a credit voucher is delivered to Guesty or Bank; or (ii) any sales transaction without a valid authorization response; or (iii) the sales transaction is alleged to have been drawn, accepted, or endorsed improperly or without Cardholder’s authority; or (iv) the sales transaction record is illegible; or (v) the Cardholder disputes the sale, quality, or delivery of merchandise or the performance or quality of services covered by the sales transaction; or (vi) the sales transaction was drawn by, or depository credit given to, Merchant in circumstances constituting a breach of any term, condition, representation, warranty, or duty of Merchant hereunder; or (vii) the extension of credit for merchandise sold or services or sales transactions performed was in violation of law or the rules or regulations of any governmental agency, federal, state, local, or otherwise; or (viii) Bank has not received payment for any sales transaction; or (ix) there is an alleged or actual failure of Merchant to comply with the Operating Regulations, the Laws, or the terms of this Agreement; or (x) any Card Network action, including, but not limited to, chargebacks, compliance cases, fines or otherwise; or (xi) as the result of any claims, damages, or losses incurred by Guesty or Bank as a result of claims asserted by any Cardholder, Card issuer, or Card Network; or (xii) without limitation, any damages or losses incurred by Guesty or Bank as a result of claims arising from the actions or omissions of Merchant or its affiliates, employees, service providers, owners, or customers. Any operational and/or other Services performed on behalf of Merchant, including but not limited to, production of facsimile drafts in response to copy requests, responses to compliance cases, augmentation of Merchant data for interchange, transaction stand-in, digital draft storage and retrieval, etc. shall in no way affect Merchant’s obligations and liability in this Agreement, including those in the foregoing sentence. Merchant is solely responsible for the defense of and any cost associated with any allegation of non-compliance with the Operation Regulations or Laws made by a Card Network or any third party, and Guesty shall have no duty to Merchant in accordance therewith. In order to monitor potential economic hardship or damage to the goodwill of any Card Network, such Card Networks have implemented merchant review programs to identify questionable business activity or merchants whose sales transactions generate excessive Cardholder complaints, chargebacks, other disputes, or undue risk. These review programs include potential fines and handling fees. In the event any fees, fines, or penalties resulting from Merchant’s actions or omissions are levied against Guesty or Bank for any reason, Merchant shall reimburse Guesty or Bank on demand or Guesty or Bank may, at its sole option, charge any of Merchant’s Account for the collection of such amounts.
2. Merchant shall only complete and deliver to Bank sales transactions produced as the direct result of bona fide sales made by Merchant to Cardholder. Merchant is expressly prohibited from processing, factoring, laundering, offering, and/or presenting to Bank sales transactions which are produced as a result of sales made by any person or entity other than Merchant. In the event that Merchant fails to comply with this Section 5, Merchant agrees that Guesty shall have the right at any time thereafter to immediately terminate this Agreement without notice to Merchant and setoff any amounts due, or expected to become due, to Merchant.
3. Merchant acknowledges and agrees that all information provided in the Agreement is true and correct. Merchant also acknowledges that Guesty or Bank may be required to report certain information regarding Merchant, including, but not limited to, Merchant’s TIN, entity name, DBA, processing volume, and principal’s social security number to governmental agencies, such as the Internal Revenue Service (IRS), and Card Networks. Merchant agrees to fulfill any request from Guesty for additional information which may be required or requested by any government agency or Card Network. Notwithstanding the foregoing, Merchant understands that Guesty or Bank may be required to withhold processing funds and forward such funds to the IRS as a result of incorrect information provided by Merchant or at the direction of a government agency. Merchant expressly agrees and releases Guesty and Bank from any and all liability hereunder resulting from incorrect information being submitted to any government agency and/or the withholding of funds. Merchant is responsible for any fines or penalties which may be assessed to Merchant and/or Guesty, and/or Bank by any governmental agency or body or Card Network.
4. Merchant shall not sell, purchase, provide, or exchange any Cardholder name, address, account number, Cardholder or transaction data, Personal Information or other information to any third party, other than to Bank, Card Networks, or Guesty and, in such case, only for the purpose of completing a sales transaction. Without limiting the foregoing, Merchant shall not provide any such information to its Agent.
5. Merchant must review all reports and invoices prepared by Guesty or Bank or its agent and made available to Merchant. Guesty reserves the right to send some or all of the reports and/or invoices via electronic transmission (e.g., via e-mail) which Guesty may change from time to time without notice. Merchant’s failure to reject any report or invoice in writing within ten (10) days from the date the report or invoice is made available to Merchant shall constitute Merchant’s acceptance of the same and a waiver of all disputes related to such report or invoice. If Merchant believes that 1) Guesty has failed in any way to provide the Services, 2) any error exists in a report provided to Merchant, 3) any error exists in an amount billed or paid to Merchant, or 4) Merchant’s transactions are not qualifying for the preferred interchange rate or Non-Qualified Surcharge Fee, Merchant agrees to provide Guesty with written notice, specifically detailing any alleged failure, within the earlier of thirty (30) days of the date on which the alleged failure or error first occurred and ten (10) days of the date on which the report or invoice containing such alleged failure of error was made available to Merchant; failure to so provide notice shall be deemed an acceptance by Merchant and a waiver of any and all rights to dispute such failure or error. Notwithstanding the foregoing, Merchant shall review all settlement reporting, all requests for Designated Account changes and Merchant shall have an affirmative obligation to confirm initiation of all settlement payments due to Merchant from Guesty within three (3) business days, respectively, from the date of the applicable transactions or request for change of the Designated Account. Guesty shall bear no liability and have no obligations to correct any errors resulting from Merchant’s failure to comply with the duties and obligations of the preceding sentence.
6. Merchant shall provide Guesty with quarterly and audited annual financial statements for Merchant’s business upon request. Financial statements shall be prepared according to generally accepted accounting principles consistently applied and any other financial information as Guesty may request as soon as commercially practicable but in no event later than ten(10) business days following any request by Guesty.
7. Merchant agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”) and to assist Guesty and Bank in complying with all Laws and Operating Regulations applicable to this Agreement. In conformance therewith, Merchant agrees that, under no circumstance, will Merchant store, disclose or use Cardholder data, including without limitation, Personal Information, in violation of the Laws or the Operating Regulations, including, but not limited to, the storage of track-2 data. Neither Merchant nor its Agent shall retain, store, or disclose magnetic-stripe data subsequent to the authorization of a sales transaction. Merchant shall be in full compliance with Operating Regulations, regulations, guidelines and procedures adopted by any Card Network relating to the privacy and security of Cardholder and Card transaction data, including without limitation, the most up-to-date version of the Payment Card Industry Data Security Standard (PCI-DSS), as amended from time to time by the Payment Card Industry Security Standards Council. Detailed information pertaining to aforementioned requirements may be found at https://www.pcisecuritystandards.org. Additional information regarding security requirements may be found on the Card Network’s respective web sites. “Personal Information” means, collectively, “personally identifiable information”, “non-public personal information”, “personal data”, “personal information” and any other similar terms defined by applicable data protection or privacy laws. Merchant will execute and deliver to Guesty all instruments Guesty deems necessary pursuant to Merchant’s obligations hereunder. Merchant will be solely responsible for the quality, accuracy, and adequacy of all transactions and information supplied hereunder, and will establish and maintain adequate audit controls to monitor the quality and delivery of such data. Merchant warrants to Guesty that it has implemented and will maintain secure systems for transmitting information to Guesty and Bank. Merchant shall allow the auditors (third-party or internal) of Guesty, Bank, or any Card Network to review the documents, files, records, procedures, systems, controls, equipment, and physical assets related to the transactions contemplated herein, including, without limitation, Merchant’s storage and transmittal of Cardholder data, at any reasonable time and upon reasonable notice to Merchant. Merchant will assist such auditors as may be necessary for them to complete their audit. MERCHANT SHALL BE LIABLE FOR ALL FINES, CHARGES AND PENALTIES THAT MAY BE ASSESSED BY ANY REGULATORY AUTHORITY, CARD ASSOCIATION OR PAYMENT NETWORK AS A RESULT OF TRANSACTIONS MADE BY MERCHANT OR MERCHANT’S NONCOMPLIANCE WITH THE PRECEDING REQUIREMENTS OR TERMS OF THIS AGREEMENT. Merchant acknowledges that it may be prohibited from participating in payment network programs if it is determined that Merchant is non-compliant. Merchant acknowledges that Guesty may cause Merchant to subject to an audit to verify Merchant’s compliance with the requirements set forth in this Agreement or the Operating Regulations. Merchant must notify Guesty within twenty-four (24) hours after becoming aware of: (i) any suspected or actual data security breach; or (ii) any noncompliance by Merchant with the security requirements set forth herein. Merchant shall, at its own expense, perform or cause to be performed (a) an independent investigation of any data security breach of Card or transaction data by an authorized assessor acceptable to Guesty; (b) take all such remedial actions recommended by such investigation, Guesty, Bank, or Card Network; and (c) cooperate with Guesty in the investigation and resolution of any security breach. Merchant must notify Guesty if cards, passcodes, or tools have been stolen or lost. Merchant does not have the right to assign passcodes, cards, or tools to anyone else.
8. Unless otherwise agreed in writing by Guesty, all sales transaction, settlement, and other data and information used in connection with the Services shall be provided to Guesty and Bank in Guesty’s or Bank’s then current data formats and by means of Guesty’s or Bank’s then current telecommunications configurations and protocols. Merchant shall comply with all time deadlines, equipment, and software maintenance and upgrading requirements reasonably imposed on Merchant by Guesty from time to time.
9. Merchant will immediately notify Guesty if Merchant decides to use electronic authorization or data capture terminals provided by any entity other than Guesty or Bank or its authorized designee (“Third Party Terminals”) to process transactions, including leasing a terminal from a third party. If Merchant elects to use Third Party Terminals, (i) the third party providing the terminals will be Merchant’s Agent in the delivery of Card transactions to Bank; and (ii) Merchant assumes full responsibility and liability for any failure of that third party Agent to comply with the Operating Regulations, the Laws, or this Agreement. Guesty and Bank will not be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third party agent or a malfunction in a Third Party Terminal. Guesty reserves the right to prohibit Merchant from using Third Party Terminals for which it does not approve.
10. The use of any software application that has connectivity to the Internet or any external network poses an increased risk, and Merchant assumes all liability for any such risks. If Merchant utilizes software or hardware with a connection to the Internet or an external network and such hardware or software interacts in any capacity with the provision of services contemplated pursuant to this Agreement, Merchant is solely liable without limitation for any and all consequences of such interaction.
11. Merchant agrees to provide Guesty with at least thirty (30) days prior written notice of Merchant’s intent to change its business form or entity in any manner (e.g., a change from a sole proprietorship to a corporation), and/or of Merchant’s intent to sell its stock or assets to another entity. In addition, should Merchant, at any time after the Effective Date, wish to change or add additional locations for the receipt of the Services, Merchant shall do so according to Guesty’s then-current standards and procedures and subject to Guesty’s prior approval. Merchant’s receipt of any Services hereunder after such change or addition shall be deemed a warranty and representation as to the quality and accuracy of such change or addition and Merchant agrees that Merchant will be obligated for such change or addition thereafter pursuant to the terms and conditions of this Agreement. Merchant will notify Guesty, within one business day, in event of bankruptcy, receivership, insolvency, or similar condition or action initiated by or against Merchant or any of its parents, affiliates, subsidiaries, or principals (“Financial Condition Change”). Merchant will include Guesty and Bank as a creditor in Merchant’s bankruptcy proceedings if Merchant has funds due to Guesty or Bank for any reason including fees, chargebacks or ACH rejects. In event of Financial Condition Change, or if Merchant is aware of future or imminent Financial Condition Change, Merchant will cease all Card acceptance at once and will no longer accept and/or submit Card transactions until Guesty has given Merchant permission to do so after receiving notice of Financial Condition Change. In the event of Financial Condition Change, Merchant will not sell, transfer, or disclose any Cardholder information, inclusive of Card account numbers or Personal Information to any agent, vendors or any other parties. Guesty reserves the right to request financial updates, including tax, bank, and financial statements, and upon request for such information by Guesty, Merchant shall promptly provide such information. Merchant represents and warrants that any information now provided or otherwise provided in the future to Guesty is true, accurate, and complete.
12. “Identity Responsibility Sales” or “Card-Not-Present transactions” shall mean sales transactions completed without the presence of the Cardholder’s Card, including, but not limited to, those made by mail, telephone or electronic commerce. Merchant agrees that it shall not make such sales or transactions unless agreed to by Guesty in writing and in advance. In the event Guesty approves Identity Responsibility Sale or Card-Not-Present transactions, for each and every Identity Responsibility Sale or Card-Not-Present transactions, Merchant represents and warrants to Guesty that the purchaser is the Cardholder and that the name, account number and expiration date appearing on the sales transaction are the same as those embossed on the Cardholder’s Card. The fact that Merchant has obtained authorization for the sales transaction does not alter this representation and warranty of identity or the need for Merchant to perform independent identification. Merchant acknowledges and agrees that it shall be solely responsible for any and all liabilities arising in connection with Identity Responsibility Sales or Card-Not-Present transactions.
13. Virtual Private Network (“VPN”)/Secure Socket Layer (“SSL”) Services. In the event that Merchant uses a VPN or SSL connection to Bank, Merchant acknowledges and agrees that the VPN or SSL communication interface relies on the internet, which is a public IP-based communications network that is subject to disruptions, slowdowns, and outages that cannot be predicted, controlled, or corrected by Guesty, and that such occurrences could interfere with the processing of Merchant’s transactions. Merchant acknowledges that Guesty shall not provide monitoring, error detection, or related service level measures with respect to the VPN or SSL. Without limiting the generality of the foregoing, any service levels that may be set forth elsewhere in the Agreement shall not apply to the VPN or SSL connection or to transactions transmitted using such connection. Merchant acknowledges that certain communication equipment must be installed and supported in Merchant’s data center(s) and other locations in order to support a VPN or SSL and that Merchant must use equipment that is compatible with the VPN or SSL communication equipment supported by Bank. Merchant shall be solely responsible for secure key exchange and key management (including a process for key revocation when Merchant personnel leave). Merchant shall further ensure that each terminal with a connection to the VPN or SSL shall at all times have a personal firewall installed and active and such firewall is up to date. The VPN services and SSL services shall be provided in accordance with Guesty’s standards, which Guesty may change from time to time in its sole discretion, and Merchant shall at all times comply with the standards established by Guesty, Bank, and Card Networks with respect to the VPN and SSL.
14. Reserved.
15. Reserved.
16. If Merchant will be accepting electronic commerce transactions, Merchant must disclose all of the following information on Merchant’s website:
  1. A complete description of the goods and/or services;
  2. Merchant’s returned merchandise and refund policy;
  3. Merchant’s customer service contact, including electronic mail address and/or telephone number;
  4. The transaction currency;
  5. Any export or legal restrictions;
  6. Merchant’s delivery policy;
  7. Disclosure of Merchant’s outlet country on the same screen as the check-out screen or during the check-out process;
  8. Merchant’s consumer data privacy policy;
  9. The security method for the transmission of payment data; and
  10. Any other information required to be disclosed under the Laws or Operating Regulations.
17. Surcharges. If Merchant chooses to impose a surcharge on Card payments, Merchant may do so only after meeting specific considerations, limitations and requirements as defined by the Card Networks, as well as the requirements of any applicable Law. Any surcharge imposed by Merchant shall not exceed 4% of the underlying transaction amount or the surcharge cap. Requirements and limitations include: (i) Merchant may only impose a surcharge if permitted by, and compliant with, the Laws; (ii) Merchant shall notify Guesty no less than 30 days in advance of imposing any surcharge; (iii) Merchant shall publicly disclose its surcharge practices to customers at the store entry point and point of sale; and (iv) any surcharge imposed by Merchant shall not exceed the surcharge cap as established under applicable Operating Regulations updated from time to time. For information on, and further links to, surcharge considerations, requirements, limitations and Card Network surcharge registration pages, visit https://www.mastercard.us/en-us/business/overview/support/merchant-surcharge-rules.html, http://www.discoversurcharge.com, and http://www.visa.com/merchantsurcharging or such other websites that the Card Networks may make available from time to time. If a Merchant chooses to impose a surcharge, in additions to the requirements set forth above, Merchant must (u) inform the Cardholder that a surcharge is assessed; (v) inform the Cardholder of the surcharge amount or rate; (w) not describe the surcharge as, or inform the Cardholder that the surcharge is, assessed by the Card Network or a Card issuer; (x) include notices, signs, or decals disclosing that Merchant assesses a surcharge. Such notices, signs, or decals must be in a conspicuous location or locations at Merchant’s physical point of sale, or, in the absence of a physical point of sale, prominently during an electronic commerce transaction or communicated clearly in a telephone order so as it can be reasonably assured that all Cardholders presenting a Card will be aware of the surcharge; (y) clearly display or communicate the surcharge disclosure in the transaction environment or process, including (if there is a physical point of sale) at the terminal/cashier’s desk. The disclosure must be of as high a contrast as any other signs or decals displayed. The disclosure at the point of sale must include both: the exact amount or percentage of the surcharge, and a statement that the surcharge is being assessed by Merchant; and (z) for an electronic commerce transaction, a mail/phone order transaction, and an unattended transaction, the Cardholder must be provided the opportunity to cancel the transaction subsequent to the surcharge disclosure.
18. Merchant will prominently display the promotional materials provided by Guesty in its place(s) of business. Merchant’s use of promotional materials and use of any trade name, trademark, service mark or logo type (“Marks”) associated with a Card is limited to informing the public that the Card will be accepted at Merchant’s place(s) of business. Merchant’s use of promotional materials and Marks is subject to Guesty’s direction and to the Operating Regulations. Subject to prior approval of Guesty, Merchant may use promotional materials and Marks only during the term of the Agreement and will immediately cease use and return any inventory to Guesty upon termination thereof. Merchant may not use any promotional materials or Marks associated with Guesty, a Card Network, or Bank in any way which suggests or implies that Guesty, the Card Network, or Bank endorses any goods or services other than in the case of the Card Network, the Card services. Merchants will prominently display Card signage provided by Guesty in its place(s) of business and the type of signage displayed will be in accordance with the Operating Regulations for Card Networks accepted by Merchant. Merchant shall not use any Marks from Guesty without consent and will promptly remove Marks from any of promotional material upon termination of this agreement or notice from Guesty.
Fees and Other Services.
1. Merchant will pay Guesty fees and charges for Services, forms, and/or equipment in accordance with the pricing detailed in this Agreement, Exhibit A, and Guesty’s then-current standards. Merchant shall pay an infrastructure fee of 0.08% (“Infrastructure Fee”) in addition to the fees payable under the applicable pricing model, including IC++ and blended pricing models. In some circumstances, an additional administration fee may apply. Such fees and charges will be calculated and debited by the Bank from the account(s) designated by Merchant (a “Designated Account”). If any fees are invoiced to Merchant, such fees will be due and payable in accordance with the due dates stated on such invoice. Merchant represents and warrants each time Bank debits the Designated Account that it is the owner of the Designated Account and has the authority to grant Bank the authorization to debit the Designated Account. Fees and charges will be assessed to Merchant by Bank on a daily, monthly and/or other periodic basis with such period initially and prospectively determined in Bank’s sole discretion. Guesty reserves the right to assess some or all of the fees and charges via a separate or combined Services invoice(s) for Merchant’s use of the Services herein. Notwithstanding the foregoing, Guesty reserves the right to, and may, amend Merchant’s fees and charges from time to time upon notice to Merchant. Guesty and Bank have the right of recoupment and set-off. Specifically, Guesty and/or bank may offset or recoup any outstanding/uncollected amounts owed by Merchant from: (i) any amounts Bank would otherwise be obligated to deposit into the Designated Account; (ii) any other amounts Guesty may owe Merchant under this Agreement or any other agreement; (iii) any funds in the Designated Account, the Reserve Account, or in any account of Merchant at Bank; or (iv) any funds that Merchant acknowledges that in the event of a bankruptcy proceeding, in order for Merchant to provide adequate protection under the bankruptcy code to Guesty, Merchant may be required to create or maintain the Reserve Account as required by Guesty, and Guesty will have the right to offset against the Reserve Account for any and all obligations which Merchant may owe to Guesty, without regard to whether the obligations relate to sales drafts initiated or created before or after the filing of the bankruptcy petition.
2. Merchant shall pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. In the event Guesty pays such taxes, Merchant shall immediately reimburse Guesty, or Bank or Guesty may, at Guesty’s sole option, charge Merchant’s Designated Account(s) for such amounts in Guesty’s sole discretion or set off against any amounts owed to Merchant.
3. Transaction fees are fees charged on each sales draft and each credit draft regardless of the stated total. Subject to the terms of this Agreement, a transaction fee may be charged for any transaction activity that utilizes a point-of-sale (“POS”) device for transmission or reception of data or information, including, but not limited to, signature-based debit card transactions, PIN-based debit card transactions, batch closing, authorizations, and any other communication using the POS device; provided, however, Merchant complies (and ensures the fees comply) with the Laws, Operating Regulations, and this Agreement.
Term and Termination
1. This Agreement shall be binding and the initial term of this Agreement (“Initial Term”) shall begin upon Merchant’s execution. The Initial Term of this Agreement shall be twelve (12) months from the first day of the month following the date of execution of this Agreement. In any event, after the expiration of the Initial Term, this Agreement shall automatically be renewed for periods equal to the Initial Term (each a “Renewal Term”), unless otherwise provided herein or unless either party gives written notice to the other party at least ninety (90) days prior to the expiration of the then-current term.
2. Merchant shall be in default under this Agreement (“Event of Default”) if: (i) Merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, a receiver is appointed for Merchant, or Merchant makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due; or (ii) Merchant or its Agent fails to comply with the Operating Regulations or Laws; or (iii) Merchant or its Agent is in breach of any other terms or conditions of this Agreement whether by reason of its own action or inaction or that of another; or (iv) in the event of irregular card sales or any other circumstances, which, in Guesty’s discretion, may increase Guesty or Bank’s exposure for chargebacks or other financial, reputation, or security risk(s); or (v) Guesty reasonably believes that there has been a material deterioration in Merchant’s financial condition; or (vi) any standby letter of credit, if and as may be required pursuant to this Agreement, will be cancelled, will not be renewed, or is not in full force and effect; or (vii) Merchant ceases to do business as a going concern, or there is a change in ownership of Merchant which changes the identity of any person or entity having, directly or indirectly, more than ten percent (10%) of either the legal or beneficial ownership of Merchant, or (viii) Guesty’s reasonable determination that fraud is or may be occurring. Upon the occurrence of an Event of Default, Guesty automatically, and without notice, shall be entitled to exercise and enforce (in concert with and in addition to any other rights or remedies granted to it herein) any and all of the following rights and remedies: (a) those provided for in Section 7.C. below, (b) cease providing any or all Services to Merchant, (c) establish a Reserve Account, and/or (d) otherwise proceed to collect amounts that are due and owing from Merchant under this Agreement by means of setoff, recoupment, debiting of Guesty’s Affiliate Accounts or any other means authorized by the Laws. In addition, upon the occurrence of an Event of Default, Guesty may terminate this Agreement by giving Merchant written notice thereof. Termination of Merchant for any reason shall not relieve Merchant from any liability or obligation to Guesty.
3. If, prior to the date on which the then current term of this Agreement is scheduled to expire, either this Agreement is terminated by Bank as specifically permitted by this Agreement, or terminated or breached by Merchant, Merchant shall reimburse Guesty for any damage, loss or expense incurred by Guesty including all past due, unpaid and/or future invoices for services rendered by Guesty in connection with this Agreement. All amounts due pursuant to this section shall be immediately due and payable by Merchant without notice or demand.
4. Guesty may immediately cease providing services to Merchant without notice if (i) Merchant has failed to pay any amount to Guesty when due, (ii) in Guesty’s opinion, provision of a service to Merchant may be a violation of the Operating Regulations, or the Laws, (iii) Guesty is required to cease providing services to Merchant as a result of regulatory action or investigation; (iv) in Bank’s opinion, providing services may jeopardize the safety and soundness of Guesty or may result in a reputational, compliance or financial risk to Guesty, Bank, or any Card Network; or (v) Guesty believes that Merchant has violated or is likely to violate the Operating Regulations, or the Laws.
Authorization, Set-off, Reserve Account, Rolling Reserve, and Security Interest.
1. Guesty and Bank’s authority to debit or credit the Designated Account(s) shall remain in effect for a period of two (2) calendar years following any termination of this Agreement, regardless of whether Merchant has notified Guesty or Bank of an Account Change as defined below. Merchant shall always maintain the Designated Account(s) with funds sufficient to satisfy Merchant’s duties and obligations pursuant to this Agreement whether contingent or accrued. If Merchant desires to change or alter the Designated Account(s) (an “Account Change”), Guesty shall use reasonable efforts to effect such Account Change; however, such Account Change shall not be effective until the date on which Guesty actually makes such Account Change on its system. Guesty shall not be responsible for checking the accuracy of any Account Change submitted by any purported representative (whether authorized or unauthorized) of Merchant and Guesty shall not incur any liability associated with any Account Change unless such change is the result of Guesty’s gross negligence or willful misconduct.
2. All amounts due Guesty under this Agreement shall be paid without set-off or deduction, and shall be due from Merchant as of the date Guesty or Bank originates an ACH debit transaction record to Designated Account(s). Any fees not collected from Merchant by Guesty when due shall bear interest at highest rate permitted by the Laws.
3. The acceptance by Guesty of Merchant’s closing (or termination of) its Account shall not constitute a mutually agreed upon termination of this Agreement.
4. As a specifically bargained for inducement for Guesty to enter into this Agreement with Merchant, Guesty shall have the right, exercisable at its option at any time either before or after an Event of Default has occurred, to (i) establish from amounts that otherwise would be payable by Bank to Merchant, including, but not limited to, demand deposit accounts and any other amounts due to Merchant from Bank and/or any of its affiliate(s) whether or not such amounts are related to this Agreement, or to cause Merchant to prepay to Bank for the benefit of Guesty, a reserve of funds, in an amount satisfactory to Guesty (a “Reserve Account”), to cover any and all amounts which are, or reasonably are anticipated by Guesty to become, due to Guesty from Merchant, (ii) require Merchant to establish an irrevocable standby letter of credit, including additional and/or replacement letters of credit if required by Guesty, with a beneficiary designated by Guesty, and which are issued in a format, with an expiration date, and in an amount acceptable to Guesty in its sole reasonable discretion. The Reserve Account shall be maintained in the name of Guesty and shall be fully funded by Merchant at all times in an amount determined by Guesty, as set forth in (i) above. Funds in the Reserve Account will remain in the Reserve Account until 270 calendar days following the later of termination of this Agreement and Merchant’s last transmission of sales drafts or transaction or credit record to Bank, or chargeback submitted by Cardholder, provided, however, that Merchant will remain liable to Guesty, for all liabilities occurring beyond such 270-day period. After the expiration of such 270-day period Merchant must provide Guesty with written notification indicating Merchant’s desire for a release of any funds remaining in the Reserve Account in order to receive such funds. Merchant agrees that Merchant will not use these funds in the Reserve Account for any purpose, including but not limited to paying chargebacks, fees, fines or other amounts Merchant owes Guesty under this Agreement. Guesty will have sole control of the funds in the Reserve Account.
5. In addition to the Reserve Account, Guesty may, in its sole discretion, apply or require a Rolling Reserve as described in Exhibit A or any applicable addendum. A Rolling Reserve represents a transactional holdback of settlement proceeds for the percentage and period specified therein. The Rolling Reserve is a commercial settlement mechanism used to manage exposure to chargebacks, reversals, or other liabilities and is separate from and independent of any Reserve Account established under Section 8D, or any set-off, recoupment, or other rights described in Section 6A or elsewhere in this Agreement. A waiver, reduction, or suspension of a Rolling Reserve – whether temporary or permanent – shall not waive, limit, or impair Guesty’s or Bank’s rights to establish, maintain, increase, or apply a Reserve Account, to exercise any rights under Section 6A, or to enforce any other remedies available under this Agreement or applicable law. For purposes of explanation only, Guesty may require the establishment of a Rolling Reserve based on its risk assessment of Merchant’s activities, or Merchant’s chargebacks or return volume. The amount required by Guesty is in an amount that is required to be replenished from Merchant’s settlement funds on a rolling basis, with the overage returned to Merchant on a monthly basis. Guesty, in its sole discretion, in an Event of Default, or if Merchant otherwise is responsible for a payment (which could be anything from a terminal upgraded to a fine), Guesty may reimburse itself from the Rolling Reserve (and provide Merchant notification) or the Reserve Account. If Guesty reimburses itself from the Reserve Account, it may choose to increase the amount of the Rolling Reserve.
6. This Agreement will constitute a security agreement under the Uniform Commercial Code. Merchant grants to Guesty a security interest in and lien upon all of the following (collectively, the “Secured Assets”): the Reserve Account. Merchant warrants and represents that no other person or entity has a security interest in the Secured Assets. The security interest and lien will secure all of Merchant’s obligations under this Agreement including but not limited to Merchant’s obligation to pay any amounts due to Guesty. With respect to such security interest and lien, Guesty will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. Merchant will obtain from Guesty written consent prior to granting a security interest of any kind in the Secured Assets to a third party. In addition to the security interests in the Secured Assets, Guesty shall have, a contractual right of setoff against the Secured Assets. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action by Guesty or notation in Guesty’s records, although Guesty may enter such setoff on its books and records at a later time.
Indemnification and Limitation of Liability.
1. Merchant shall indemnify and hold harmless Guesty, Bank and its and their directors, officers, employees, affiliates, and agents (the “Indemnified Parties”) from and against all proceedings, claims, demands, losses, liabilities, damages and expenses (including but not limited to, any fines, fees, assessments, audit fees, card replacement cost, or penalties levied against Guesty or Bank by Visa, MasterCard, Discover, any Card issuer, or any Other Network, and attorneys’ and collection fees and expenses) resulting from or otherwise arising out of (i) the Services in this Agreement, (ii) any breach of any term or condition of this Agreement, (iii) any misrepresentation by Merchant herein under this Agreement, (iv) Merchant’s or Merchant’s employees and agents acts or omissions in connection with the services provided pursuant to this Agreement, (v) Merchant’s processing activities and provision of goods and services to Cardholders, (vi) any violation of the Operating Regulations, or the Laws, (vii) any guarantees provided by Guesty to any third party for the benefit of Merchant, including without limitation any lease guarantees, (viii) any chargebacks, reversals, unauthorized transactions or any rights exercised by Cardholder in connection with a transaction processed by Bank; (ix) any fines, penalties or fees assessed by a regulatory authority or Card Network in connection with Merchant’s use of the Services; or (x) any infiltration, hack, breach, or violation of the processing system resulting from, arising out of, or in any way related to Merchant’s ability to use of the services provided herein including but not limited to Merchant’s use of an Agent or any other third party bank or system, or Merchant’s ability to connect to the Internet or an external network. This indemnification shall survive the termination of the Agreement.
2. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, GUESTY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT hereby Acknowledges that there are risks associated with the acceptance of cards, and Merchant assumes all such risks except as may be expressly set forth herein. Neither Bank nor Guesty shall be liable for lost profits, lost business or any incidental, special, consequential or punitive damages (whether or not arising out of circumstances known or foreseeable by Guesty) suffered by Merchant, its customers, or any third party in connection with the services provided hereunder, even if Guesty or Bank has been informed of the possibility of such losses or damages. In no event shall Guesty or Bank be liable for any damages or losses that are wholly or partially caused by Merchant, or Merchant’s employees or agents. In no event shall Guesty or Bank be liable for any damages or losses that Merchant may sustain as a result of Guesty’s exercise of any post-default rights or remedies authorized under Section 7.B. above, so long as Guesty, at the time of exercising such rights or remedies, has a good faith reasonable basis to believe that an Event of Default has occurred and is continuing. Guesty’s or Bank’s liability related to or arising out of this Agreement shall in no event exceed fees paid to Guesty or Bank for the particular services in question for the calendar month immediately preceding the date on which any act or omission of Guesty or Bank for which Merchant alleges liability on the part of Guesty or Bank. The parties acknowledge that the limitations set forth in this section are integral to the amount of fees charged by Guesty ofor the services provided hereunder, and recognize that if Guesty were to assume any further liability beyond that set forth in this section, such fees would be substantially higher. Except as otherwise set forth in this Section 9, Merchant’s exclusive remedy for any and all claims against Guesty or Bank arising out of or in any way related to the transactions contemplated herein shall be termination of this Agreement. Neither Guesty nor Bank shall not be deemed to be in default under this Agreement or liable for any delay or loss in the performance, failure to perform, or interruption of any Services resulting, directly or indirectly, from errors in data provided by Merchant or others, or any event beyond Guesty’s reasonable control including but not limited to international, domestic, or economic terrorism.
3. Except for an action related to Merchant’s failure to pay any amount due hereunder, no cause of action shall be brought by either party more than one (1) year after the cause of action accrued.
4. Merchant represents and warrants to Guesty that all information in this Agreement is true, accurate, correct, and complete. Merchant shall immediately notify Guesty in writing of any changes to the information in the Agreement, including but not limited to: any additional location or new business, the identity of principals and/or owners, the form of business organization (i.e., sole proprietorship, partnership, etc.), type of goods and services provided, and how sales are completed (i.e., by telephone, mail, or in person at your place of business). Merchant shall provide updated information to Guesty within a reasonable time upon request. Merchant shall indemnify, hold harmless, and reimburse Guesty for any and all losses and expenses incurred by Guesty arising out of a failure to comply with this paragraph. Guesty retains the right to review Merchant’s processing activity for conformance to the information provided and to re-price or terminate any services provided to reflect any nonconformance.
Confidentiality

Merchant acknowledges that Guesty will be providing Merchant with certain confidential information, including but not limited to, this Agreement and information relating to the methods, techniques, programs, devices and operations of Guesty, Bank, and/or or any Card Network (collectively “Confidential Information”). Merchant shall not disclose Confidential Information to any person or entity (other than to those employees and agents of Merchant who participate directly in the performance of this Agreement and need access to such information) and may not use such Confidential Information except in connection with the receipt of Services pursuant to the terms of this Agreement. Without limiting the foregoing, Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the Laws, and the Operating Regulations, including, but not limited to, the Visa Cardholder Information Security Program (“CISP”) and any similar program requirement of any Card Network. Merchant acknowledges receipt of the Privacy Notice, prior to the opening of this account (“Privacy Notice”) and agrees to the terms of the Privacy Notice. Merchant should direct any questions or requests for another copy of the Privacy notice to Customer Service or its primary relationship manager if applicable. Notwithstanding anything to the contrary in the Notice or this Agreement, Guesty may share any information provided by Merchant and/or relevant to the Services received by Merchant: (a) with Merchant’s franchisor, Merchant’s franchisee(s), association(s) to which Merchant belongs and/or belonged as of the commencement of this Agreement, (b) any affiliate of Merchant; (c) in response to subpoenas, warrants, court orders or other legal processes; (d) in response to requests from law enforcement agencies or government entities; (e) to comply with applicable laws or regulations; and/or (f) as necessary to provide the Services contemplated Merchant agrees that Guesty may include Merchant’s name and/or logo on a list of Guesty’s customers, which may be made public by Guesty.
Prohibited and High Risk Transactions.

IMPORTANT: FAILURE TO COMPLY IN FULL WITH THE TERMS OF THIS AGREEMENT MAY RESULT IN THE MERCHANT BEING ADDED TO THE CONSOLIDATED TERMINATED MERCHANT FILE (MATCH) AND MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT GUESTY AND/OR BANK MAY ADD MERCHANT TO THE MATCH LIST.
1. Fraud Transactions. Merchant will not, under any circumstances, present for processing, directly or indirectly, any transaction Merchant knows or should know to be fraudulent or not authorized by the Cardholder. Merchant must not request or use a Card for any purpose other than as payment for goods and services.
2. Factoring/Transaction Laundering. Merchant will not, under any circumstances, process for, or present for processing, directly or indirectly, any transaction not originated as a result of a bona-fide Card transaction directly between Merchant and Cardholder. Merchant will not present any sales drafts on behalf of another website, online merchant, company, person, source or entity. Failing to adhere to this will result in immediate termination, legal action or levying of fines as determined by the Card Networks.
3. Lawful Purposes. Merchant will not, under any circumstance, engage in any transaction, or use Card acceptance and transaction capabilities for selling goods and/or providing services prohibited by local, hyper-local, state, federal, international and other Laws included, but not limited to, the USA PATRIOT Act, Bank Secrecy Act, consumer protection laws and the U.S. Tax Code. Merchant will not submit any transactions prohibited by any Operating Regulations. Perpetrators of fraud or fraudulent transactions may be referred to state and/or federal law enforcement agencies.
4. Cash Payments. Merchant will not, under any circumstances accept cash, checks or other negotiable items from any Cardholder and forward a transaction in connection with the Services, as a purported payment or deposit to an account maintained by the Cardholder.
5. Cash Advances. Merchant will not submit, deposit or process any transaction for the purpose of obtaining or providing a cash advance. Merchant will not submit any transaction that involves a Card owned or controlled by Merchant for the purpose of obtaining a cash advance or deposit of funds into Merchant’s own Designated Account.
6. Refinancing Existing Debt. Merchant will not accept a Card to collect or refinance an existing debt that: (i) has been deemed uncollectible by Merchant providing the associated goods or services; (ii) represents any other pre-existing indebtedness by Cardholder, including collection of delinquent accounts on behalf of other parties; or (iii) represents the collection of a dishonored check. Further, Merchant must not accept Cardholder payments for previous Card charges.
7. Operating Regulations. Merchant shall comply with the Operating Regulations, as amended from time to time. Merchant is required to review the latest versions of Operating Regulations, as applicable to Merchant’s obligations under this Agreement.
8. Merchant will fully cooperate with Guesty, Bank, and each Card Network in the event that Guesty, Bank, or any Card Network determines that there is a substantial risk of fraud arising from Merchant’s access to Card processing networks or Services provided under this Agreement. Merchant will take whatever action(s) Guesty reasonably deems necessary in order to protect Guesty, Bank, the Card Network, its members and Cardholders. Neither Guesty or its respective personnel will have any liability to Merchant for any action taken in good faith.
9. Prohibited Transactions. Merchant will not submit any telemarketing (inbound or outbound) sales transactions or any other transactions using the Services that Guesty deems to be high risk, unless Merchant obtains Guesty’s prior written consent. Such consent will be subject to Gusty’s final approval and may be revoked by Guesty without prior notice. Merchant may be subject to Card Network registration and reporting requirements. If Merchant processes any such transactions without Guesty’s prior approval, Merchant may be terminated immediately and Guesty may suspend funds and/or require Merchant to establish a Reserve Account. Merchant acknowledges and agrees that Guesty may modify or add to the list of prohibited transactions, and Merchant shall comply with any prohibitions related to submitting transactions to Guesty that Guesty provides to Merchant from time to time.
10. Service Provider may terminate this Agreement in the event Merchant violates any terms or conditions set forth in this Section 11.
  MISCELLANEOUS TERMS AND CONDITIONS. The following terms and conditions shall also apply.
Notices.
1. All notices, requests, demands and other communications to be delivered by Merchant hereunder – unless otherwise specified – shall be in writing and shall be delivered to Guesty via certified mail, postage prepaid or reputable overnight courier to Guesty at the following address: payment_processing@guesty.com. Notices so delivered shall be deemed given upon Bank’s actual receipt thereof.
2. All notices, requests, demands and other communications to be delivered by Guesty hereunder – unless otherwise specified – shall be in writing and shall be delivered to Merchant via facsimile, ordinary mail, certified mail, electronic mail, reports, or reputable overnight courier. Notices, so delivered shall be deemed given: (i) for facsimile when transmission confirmation is obtained, (ii) for ordinary mail and certified mail, on the fifth calendar day following mailing, (iii) for electronic mail, upon date of transmission by Guesty, (iv) for reports, when transmitted by Guesty, and (v) for reputable overnight courier, on the first business day following submission to the courier.
Amendments.

Guesty may amend this Agreement. Guesty will inform Merchant of a proposed change in a periodic statement or other notification method pursuant to the notification section of this Agreement. Merchant will be deemed to have agreed to any such amendment if Merchant continues to present transactions to Guesty after five (5) days following receipt (deemed or actual) of the notice. Notwithstanding the previous sentence, changes to fees authorized by this Agreement will be effective immediately upon notice to Merchant (deemed or actual), unless a later effective date is provided.
Assignment.

This Agreement may be assigned by Guesty, but may not be assigned by Merchant directly or by operation of law, without the prior written consent of Guesty. For the avoidance of doubt, a change in the control of any voting shares of Merchant shall constitute an assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, transferees and assignees.
Independent Contractors.

Guesty and Merchant will be deemed independent contractors and none will be considered an agent, joint venturer or partner of the other.
No Third-Party Beneficiary.

This Agreement is for the benefit of, and may be enforced only by, Guesty and Merchant and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.
Credit Inquiries and Financial Examination and Inspections.

Merchant authorizes Bank and Guesty to make credit inquiries considered necessary in order to review the acceptance and continuation of this Agreement. This authority is granted to Guesty and Bank at any time during which Merchant owes any obligation, or the services remain in place, to Guesty and may survive the term of the Agreement. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, principal owners or officers. If requested to do so by Guesty or Bank, Merchant shall provide written consent of any individual for which an inquiry has been or is to be made if such individual did not execute this Agreement. Merchant, its principal owner(s) and guarantor(s) acknowledge that Guesty is required by Law (Section 326, USA PATRIOT Act of 2001) to inquire with the Office of Foreign Asset Control (OFAC) of the U.S. Treasury Department if Merchant, its principal owner(s), proprietor(s), officer(s) or Guarantor(s) are present on any lists maintained by OFAC prior to accepting Merchant. Merchant agrees to permit Guesty to occasionally inspect locations to confirm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and license or permit(s) (where necessary) to conduct its business. However, nothing in this paragraph shall be interpreted as a waiver of Merchant’s obligation to comply in all respects with the terms of this Agreement. Merchant authorizes Guesty to audit Merchant’s records, systems, processes or procedures to confirm compliance with this Agreement, as amended from time to time. If Merchant processes dollar volumes in excess of $100,000 in any month, Merchant shall cooperate with Guesty in performing annual financial reviews by presenting up-to-date financial statements, tax returns and bank statements in order to assure Guesty that Merchant maintains a favorable capital position, liquidity, stability, business practices and general financial condition to fulfill the responsibilities tied to high volume Card processing.
Employee and Agent Actions.

Merchant is responsible for the acts or omissions of its employees and agents including but not limited to such acts or omissions as such relate to the use of the services provided by Guesty herein.
Non-Waiver.

The failure of Guesty to object to or take any affirmative action with respect to any conduct by Merchant which is in violation, breach or default of the terms hereof, shall not be construed as a waiver thereof, nor of any future breach or subsequent violation, breach or default.
Severability.

If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Agreement will be reasonably construed as if such provision is not contained in the Agreement.
Right to Receive Payment.

Guesty shall have the sole right to receive payment on sales transactions acquired by Guesty and Merchant agrees not to sue or to make any collections thereon except as may be specifically authorized by Guesty in writing or until such sales transaction is reacquired by, or charged back to Merchant.
Governing Law, Jury Waiver, Jurisdiction.

This Agreement is entered into, governed by, and construed pursuant to the laws of the State of New York without regard to conflicts of law provisions. Merchant irrevocably agrees to all of the following: (i) that any legal suit, action or proceeding arising out of, in any way relating to this Agreement, or pertaining in any way to the relationship between Merchant and Guesty shall be exclusively instituted in a state or federal court of appropriate subject matter jurisdiction in New York, NY; (ii) a waiver all rights to a trial by jury; and (iii) a waiver of any objection which Merchant may have now or hereafter to the venue of any such suit, action or proceeding; and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. Notwithstanding the foregoing, nothing contained herein shall prevent Guesty from bringing any action or exercising any rights under this Agreement within any other state or country. Merchant irrevocably agrees that service of process may be made, and personal jurisdiction over Merchant obtained, by serving a copy of the Summons and Complaint upon Merchant at its address set forth in this Agreement in accordance with the applicable laws of the State of New York.
Headings and Construction.

The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.
Attorney’s Fees.

Merchant will be liable for and will indemnify and reimburse Guesty and Bank for all attorney’s fees and other costs and expenses paid or incurred by either of them in the enforcement of this Agreement, or in collecting any amounts due from Merchant to Guesty or Bank, or resulting from any breach by Merchant of this Agreement including but not limited to in-house counsel fees (billed at $350 per hour) or fees paid to third-parties for collections activities.
Survival.

Any and all provisions of this Agreement that impose or could be construed to impose a continuing obligation, duty, or requirement upon Merchant including but not limited to duties of indemnification and/or account maintenance shall survive the expiration or termination, for any reason, of the Agreement.
Other Networks.

Merchant’s election to receive Services from any Other Network may require the execution of an agreement (an “Other Merchant Agreement”) between an Other Network and Merchant. The parties acknowledge and agree that Other Merchant Agreement with any Other Network shall be deemed separate and independent agreements solely between such Other Network and Merchant, and that Guesty shall not be responsible for any Other Network of Merchant breach of such Other Merchant Agreements. Guesty bears no liability whatsoever for terms and conditions of Other Merchant Agreements and Guesty’s liability for Services subject to an Other Merchant Agreement shall be limited both (i) as otherwise provided herein, and (ii) Services actually provided by Guesty. Guesty may, in its sole discretion, cease to provide any Services for Other Networks. If Merchant for any reason begins receiving any Services in connection with any Other Network, Guesty may route Other Network transactions according to its standards and at its sole discretion. Merchant agrees that it has or will, prior to commencing participation in each Other Network, obtain all necessary approvals and execute any applications and/or agreements necessary for, required by or affecting Merchant’s participation in such Other Network(s). In addition, Merchant shall obtain such other approvals or execute such other documents as may be required from time to time in connection with Merchant’s participation in such Other Networks. Merchant agrees to participate in Other Network(s) in compliance with, and subject to, the Operating Regulations. Merchant agrees to pay all fees, fines, assessments and penalties as they are currently in effect or may be changed from time to time, imposed by the Other Network(s), whether billed directly to Merchant by such Other Network(s) or through Guesty or its affiliates or agents. Guesty may allocate any such fees, fines, assessments or penalties in such manner as it deems advisable in its sole discretion. Merchant attests that all POS terminals are operating with unique keys as mandated by Other Network.
ACH Payment Services.

Merchant acknowledges that ACH payment services (“ACH Services”) are provided directly by Guesty’s third-party banking partners and processors (each an “ACH Processor”), and not by Guesty. Guesty does not control the ACH Processor’s services, systems, or operations. By electing to use ACH Services, Merchant agrees to be bound by the then-current ACH Origination Agreement and any other terms and conditions required by the ACH Processor and its sponsoring financial institution.

GUESTY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACH SERVICES, AND SHALL NOT BE LIABLE FOR ANY FAILURES, ERRORS, DELAYS, OR INTERRUPTIONS IN ACH PROCESSING BY THE ACH PROCESSOR OR ITS SPONSORING FINANCIAL INSTITUTION. MERCHANT’S SOLE RECOURSE FOR ANY CLAIMS, DISPUTES, OR ISSUES ARISING FROM OR RELATED TO ACH SERVICES SHALL BE AGAINST THE ACH PROCESSOR, AND NOT AGAINST GUESTY.

Exhibit A

Merchant will pay Guesty fees for services in accordance with the following:

Processing fee
Processing fee	2.9%+$0.30	1.5% for International cards, 1.24% for FX, 1.21% for Virtual cards, 0.5% MOTO Transactions + Infrastructure Fee
Operational fees
Onboarding Fee	$50.00	per event
Chargeback	$35.00	per event
Monthly fee	$25.00
Terms
Rolling Reserve	10% for 90 days
Settlement	Daily, T+7

–

ACH Processing fee
ACH Transaction fee	$1.00
ACH Verification fee	$3.99
Operational fees
Onboarding Fee	$50.00	per event
ACH Return	$15.00	per event
Monthly fee	$15.00
Terms
Settlement	Daily, T+10

Rules and Regulations.

Acceptance of Cards.

Maintenance of Records.

Guesty’s Responsibilities.

Certain Merchant Responsibilities.

Fees and Other Services.

Term and Termination

Authorization, Set-off, Reserve Account, Rolling Reserve, and Security Interest.

Indemnification and Limitation of Liability.

Confidentiality

Prohibited and High Risk Transactions.

Notices.

Amendments.

Assignment.

Independent Contractors.

No Third-Party Beneficiary.

Credit Inquiries and Financial Examination and Inspections.

Employee and Agent Actions.

Non-Waiver.

Severability.

Right to Receive Payment.

Governing Law, Jury Waiver, Jurisdiction.

Headings and Construction.

Attorney’s Fees.

Survival.

Other Networks.

ACH Payment Services.

Exhibit A