This Merchant Agreement (the “Agreement”) is entered into by and between ReThink Financial Inc., a Delaware corporation with address at 651 N. Broad St., Suite 206, Middletown, DE 19709 (“ReThink”, “Processor”, “we”, “us” or “our”) and the entity or person placing an order for or accessing the Payment Services (as defined below) (“Merchant”, “you” or “your”). This Agreement consists of the terms and conditions set forth below, any additional terms that reference this Merchant Agreement and any ReThink merchant or Dutchie forms or online sign-up form or subscription flow that references this Merchant Agreement (the “Merchant Form”). If you are accessing or using the Payment Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Merchant” reference your company.
The parties hereto agree as follows:
1.Incorporated Schedules and Appendix :
1.1The following Schedules and Appendix are attached to and/or have been identified as Schedules and Appendixes to this Agreement and are incorporated in this Agreement by reference as if fully set forth herein:
1.1.1Schedule A: Glossary of Definitions to this Agreement (including its Schedules and Appendices), which is hereby incorporated herein and made a part hereof. This Schedule B lists the definitions found in this Agreement and its Schedules and Appendix. Capitalized terms shall have the meanings for all purposes of this Agreement set forth in this Schedule B.
1.1.2Appendix A: Card Acceptance Rules to this Agreement, which is hereby incorporated herein and made a part hereof
2.Non-Exclusive Agreement : ReThink shall, throughout the term of this Agreement, remain a non-exclusive mobile payment service processor for the payment Credentials we agree to process for you.
3.ReThink’s Role : ReThink is acting as an authorized agent to accept and process Credentials from Customers on your behalf for Transactions. This Agreement governs your use of the Payment Services provided by ReThink, and both parties agree to be bound by the terms hereinafter. The Payment Services may only be used for business purposes and may not be used to accept paymentsfor personal, family, or household purposes other than the Transactions. Card Acceptance Rules are listed in the attached Appendix A.
4.Payment Methods and Your Authorization :
4.1You authorize us to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf in connection with the Payment Services. Based on your authorization, ReThink may generate an electronic funds transfer to settle the proceeds of each Transaction that you authorize, less any applicable Fees listed in the Merchant Form. Your authorization and the amount of the Fees will remain in full force and effect until your Merchant Account is closed or terminated and all outstanding Transactions processed.
4.2You acknowledge and agree that our processing of a Transaction, and subsequent receipt of funds, in connection with a Transaction on your behalf satisfies your Customer’s obligations to pay you. We will settle to funds received by us from Providers on your behalf, fewer amounts owed to us, subject to any Refunds. Your authorization permits us to debit any Linked Account at any time for the purposes specified in this Agreement. By agreeing to the terms of this Agreement, you also agree to be bound by and comply with any applicable rules of Financial Institutions governing associations and/or any applicable Clearing House, such as the National Automated Clearing House Association in the United States, Payments in Canada, the European Automated Clearing House Association in Europe, or any similar clearing house in respective jurisdictions where the transactions take place.
4.3Payment Methods. You may only process payments when authorized to do so by your Customers. You are responsible for verifying the identity of your Customers, ensuring that Customers have authorized the Transactions, determining their eligibility to purchase your products and services, and using the Payment Service in accordance with this Agreement and applicable laws. ReThink does not guarantee or assume any liability for Transactions not authorized or authorized and completed that are later reversed or refunded if such reversal or refund is not caused by acts or omissions of ReThink.
5.Prohibited Use of the Payment Services; Acknowledgement of Exception : You agree you will not engage in the following activities, which are prohibited on our networks (“Prohibited Uses”). This list is non-exhaustive, and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into one of these categories:
5.1Abusive Activity: Actions that impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to our computer systems, networks, or sites that contain viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to our computer systems, networks or sites or our other customers’ Accounts, computer systems or networks connected to us, through any other means.
5.2Fraud: Actions that operate to defraud us, our users, or any other person; providing any false, inaccurate, or misleading information to us.
5.3Prohibited Business. In addition to the Prohibited Uses, the following categories of businesses, business practices, and items for sale are prohibited from the Payment Services, in line with the Cole Memo, FinCEN’s recent AML priorities, and other applicable regulations. Most Prohibited Business categories are imposed by the requirements of our banking providers, applicable law, or regulators. This list is non-exhaustive, and we reserve the right to modify it at any time. It is within our sole discretion to determine whether an activity falls into a Prohibited Business category. If you are uncertain whether your use of the Payment Services involves a Prohibited Business or have questions about how these requirements apply to you, please contact us at email@example.com.
3.3.2Controlled substances that are prohibited by state law in the location where the merchant conducts transactions;
5.3.3Funding of terrorist organizations or activities;
5.3.4All weapons, munitions, gunpowder, and other explosives;
5.3.5Lodging Transactions or vehicle rental Transactions.
5.3.6Any toxic, flammable, and radioactive materials;
5.3.7Products that falsely claim to have medicinal or therapeutic properties similar to those of legitimate pharmaceutical drugs, also known as pseudo-pharmaceuticals;
5.3.8Products or chemicals that are specifically engineered to produce similar psychoactive effects as illegal drugs, while attempting to circumvent existing drug laws, also known as designer drugs or synthetic drugs;
5.3.9Any pyramid and investment schemes, multi-level marketing schemes, and other unfair, predatory, or deceptive practices;
5.3.10All items used for speculation or hedging purposes (such as derivatives), including any attempts, actions, or efforts that would work to classify RAMs or the Rethink platform as a security and or commodity under any applicable state, federal, or other law or regulations;
5.3.11Credit and collection services;
5.3.12Items that infringe or violate any intellectual property rights, such as copyrights, trademarks, trade secrets, or patents, including counterfeit or unauthorized goods.
As provided for in this Section 5, we reserve the right to terminate your Merchant Account for any reason, including due to policy changes with respect to the types of goods or services sold to Customers using the Payment Services.
6.Fees : You agree to pay the applicable fees listed on the Merchant Form. The Fees shall be applicable for the duration of the term of this Agreement. Fees, charges, and payments collected or paid through the Payment Services are denominated in USD, unless otherwise provided in the Merchant Form. All Transaction Fees are charged at the time we process a Transaction. Fees paid to us are not refundable or revocable. Monthly and other Fees set forth in Merchant Form can be deducted when due.
7.Errors : If we determine that we made an error in connection with a Transaction through the Payment Services, we will address it by either crediting your Merchant Account or debiting your Linked Account for the difference. We will only correct Transactions that you process incorrectly if you promptly notify us of such an error. You waive any rights to amounts owed if you fail to notify us of such an error within sixty (60) days of when it first appeared on your electronic Transaction history.
8.Taxes : It is your responsibility to (i) pay any applicable taxes, in addition to Fees listed in the Merchant Form; and (ii) determine what, if any, taxes apply to the sale of your goods and services in connection with your use of Payment Services, as well as the payments you receive for such sales. You are responsible for assessing, collecting, reporting, or remitting, as appropriate, the correct taxes to the proper tax authority. We are not obligated to, nor will we, determine whether or what taxes apply. We are also not obligated to, and will not, calculate, collect, report, or remit any Taxes to any tax authority arising from any Transaction. Nevertheless, you acknowledge that we may be required to make certain reports to tax authorities regarding Transactions, as well as regarding Merchants.
9.1A Chargeback is typically caused when a customer disputes a charge that appears on its bills. A Chargeback may result in the reversal of a Transaction for which you are immediately liable for the amount of the Transaction.
9.2You can be assessed Chargebacks for
9.2.2unauthorized or improperly authorized transactions;
9.2.3transactions that do not comply with Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious; or
9.2.4any reversals by the Card Network, us, or the acquiring or issuing banks.
9.3When a Chargeback is issued, you are immediately liable to ReThink for the full amount of the Transaction related to the Chargeback plus any associated fees, fines, expenses, or penalties (including those assessed by the Card Networks us, the acquiring or issuing banks). You agree that we may recover these amounts by debiting your ReThink Account, debiting the Reserve Account, or setting off any amounts owed to you by us. You further Authorize ReThink to Draft your Company’s Bank Account by using the ACH Network to recover the full amount of the Transaction related to the Chargeback – plus any associated fees, fines, expenses, our attorneys’ fees involved in the collection, or penalties (including those assesses by the Card Networks, ReThink, and/ or acquiring and issuing Banks).
9.4If we are unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. Where such amounts are not immediately paid to us, you agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargebacks unpaid by you.
9.5If we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
9.6Chargebacks may not be applicable to one or more Providers. In addition, you may also be liable for all claims that a Provider, in its sole and absolute discretion, finds in favor of the Customer under its purchase protection program for the goods or services solder, or under its Operating Rules (as described on www.ReThinkPay.com/legal), if applicable.
9.7Contesting your Chargebacks
9.7.1Either you or we may elect to contest the Chargebacks assessed against you. We may assist with notifications and support to help contest your Chargebacks, but we do not assume any liability for our role or assistance in contesting Chargebacks.
9.7.2You agree to provide us with the necessary information in a timely manner and at your expense to investigate or help resolve any Chargeback. You also permit us to share records or other information required with financial institutions and Card Networks to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
9.7.3If the Chargeback is not resolved in your favor, we may recover the Chargeback amount and any associated fees from you. Upon notice to you, we reserve the right to charge a fee for mediating or investigating Chargeback disputes.
9.8Excessive Chargebacks.At any time, the Card Networks, or our payment processors may determine that you are incurring excessive Chargebacks that are in excess of one (1%) percent of your total processing volume (“Excessive Chargebacks”). Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in (a) additional controls and restrictions put on your use of Payment Services, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, or (iii) delays in your Payout Schedule; or (b) possible suspension or termination of your Merchant Account and access to our Payment Services. The Card Networks or Providers may also place additional controls or restrictions as part of their own monitoring programs for merchants with Excessive Chargebacks.
10.Merchant Account :
10.1To use the Payment Services, you must first register for a Merchant Account. By registering a Merchant Account, you confirm that you are a merchant who is a business entity authorized to conduct business as permitted by applicable laws. You must use your business’ true and accurate name when registering for the Merchant Account. This name will appear in your account history for all payments you accept from your Customers using the Payment Services. The Merchant Account may be maintained by ReThink or our License Partners.
10.2When you register, Dutchie and/or ReThink will collect basic information, including your company name, location, tax identification number, and phone number. Dutchie and/or ReThink may also collect basic information about any majority owners of the Merchant, including their names, home addresses, date of birth, social security number and driver’s license numbers, if applicable.
10.3When you register, you also must provide information about an owner or principal of the business authorized to act on behalf of the business, and to bind the business to this Agreement (“Authorized Representative”). When the Authorized Representative executes this Agreement, the Authorized Representative accepts the terms and conditions of this Agreement on behalf of your business.
10.4When you register, you also will be required to provide an email address and password for your Merchant Account. You may not register if we have already rejected an account registration for your business. If you believe we have rejected your account application in error, please contact us.
11.Linked Account :
11.1We will settle Proceeds via electronic funds transfer to a bank account (“Linked Account”) you provide when registering your Merchant Account.
11.2Your Linked Account(s) must be located at a bank branch or financial institute within the Territory and held in the name of your business.
11.3You are responsible for the accuracy and correctness of information provided regarding your Linked Account(s), including inputting the correct information as part of registering or updating your Linked Account(s). The actual timing of the settlement of funds to your Linked Account will be subject to the Payout Schedule.
12.Identity Verification and Audit :
12.1Per applicable laws and regulations, we will review the information you submit in your ReThink Application Form, including your business identity and status, the owners, principals, and Authorized Representatives, Taxpayer Identification Number (TIN), corporate organizational documents in connection with your request for the Payment Services, Articles of Incorporation, State Licenses (Cannabis), City Business License, EIN or Tax Authority Registration, State ID of Owner or Managing Partner, Copy of Front & Back Voided Business Check.
12.2We, or through our partners, affiliates, representatives, or a third party, for as long as this Agreement is in full force and effect, may periodically request additional information from you, or obtain additional information about you, the owners, principals, and Authorized Representatives of your business, including from business references, background checks, financial institutions, and credit reporting agencies, and checks with the state, in which you’re domiciled, for the limited purposes of investigating and verifying your credit and financial information, verifying the identity and creditworthiness of your owners and principals, conducting criminal background checks on key principals, and determining whether you continue to be eligible for the Merchant Account and Payment Services, as permitted and required by the applicable laws and regulations in the designated territory(ies). For example, ReThink may ask you to present invoices from your suppliers, a business license, or other information, and conduct an annual Office of Foreign Assets Control (OFAC) check on the principals. If you refuse any of these requests, your Merchant Account may be suspended or terminated. As part of this verification and auditing process, you acknowledge that information including social insurance numbers (if provided) and dates of birth may be used for credit matching and identity verification. We may use, collect, obtain, or exchange information with a third party such as financial institutions and Providers, for the limited purpose of verification and audit, as permitted by laws and regulations, in order to provide you with the requested Payment Services, and for security measures in relation to your Merchant Account, or as otherwise permitted by law.
12.3For Affiliates of Merchants, we will implement a similar review and verification process as described above, including verifying their business identity, status, owners, principals, and Authorized Representatives, conducting appropriate background checks, and obtaining necessary documentation. We will also ensure that these Affiliates comply with the required annual reviews and OFAC checks to maintain their eligibility for the Payment Services.
12.5ReThink represents and warrants that, to the best of its knowledge, it makes reasonable efforts to comply with all applicable local, national, and international laws pertaining to data privacy. ReThink agrees to periodically review and update its Data Privacy practices, at least annually and each time it begins doing business in a new jurisdiction, in order to main compliance with the prevailing standards, such as the European GDPR. ReThink shall not be held liable for any actual or alleged violations of any data privacy laws within the designated territory in connection with the subject matter of this Agreement unless such violations are the direct result of ReThink’s willful misconduct or gross negligence.
13. Reserve Account : In certain circumstances, we may determine that a Reserve Account is necessary to provide the Payment Services to you. When necessary, we may, in our sole discretion, set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in a Reserve Account. In our sole discretion, we may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our payment processors.
14. Security Interest : You grant us a lien and security interest in the Reserve Account, all Transactions (including future Transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest, even if such a request is made after you have established a negative balance with us.
15. Access to Proceeds : We will settle Proceeds to your Linked Account, subject to the Payout Schedule. If we are not able to debit or credit your Linked Account as may be required pursuant to this Agreement, your Linked Account may be de-linked from your Merchant Account, and we may suspend your access to the Payment Services until such time as you are able to establish, subject to our verification and approval, a new Linked Account.
16. Setoff Rights : You grant us a security interest in, as well as a right of setoff against, your Merchant Account. You further assign, convey, deliver, pledge, and transfer to us, as security for repayment of any obligations due under this Agreement, all of your right, title, and interest in the Merchant Account. You authorize us, without any prior notice to you, to collect, charge, and/or setoff the indebtedness, or collect paid legal fees incurred by ReThink for enforcing past due balances or chargebacks or fees against any such accounts and other obligations. We retain the option to administratively freeze or direct any third-party bank holding funds associated with your Merchant Account to freeze any such accounts so that we are able to protect our security interest and related rights are provided for in this section. Such authorization is valid without prior notice to you and regardless of whether we make any demand to you under this Agreement, or the obligation is contingent, matured, or unmatured to the extent permitted by applicable laws.
17. Business Continuity and Disaster Recovery : ReThink shall maintain a comprehensive Business Continuity Plan (BCP) per its policies and procedures to ensure the ongoing operations of its critical functions in the event of an emergency or disruptive event. The BCP outlines the procedures, responsibilities, and measures to be taken to recover and restore time-sensitive business operations following any such event. ReThink shall provide a copy of its BCP to Merchant upon request and shall update the BCP regularly to address changes in risks, technology, and business operations.
18. Payout Schedule : The Payout Schedule below describes the time it takes for us to initiate the settlement of funds to your Linked Account in the amount of the Proceeds from Transactions processed through the Payment Services. We will initiate settlements of Proceeds to your Linked Account, which will generally be settled in 2 – 4 business days. Settling of Proceeds may be delayed until your Linked Account is verified; and if we are unable to verify a Linked Account, we may not be able to provide the Payment Services to you. We are not responsible for any action taken by Providers or the financial institution holding your Linked Account that may result in some or all of the Proceeds not being credited to your Linked Account or made available to you. With respect to the Payment Services, we reserve the right to change the Payout Schedule, suspend payouts to your Linked Account, or initiate a Reversal without a notice, should we determine such an action is necessary for reasons of pending disputes, excessive Chargebacks, or Refunds, or other suspicious activities related to your use of our services, or if required by applicable laws or court orders.
19. Availability of Proceeds : If we or the Providers need to conduct an investigation or resolve any pending dispute related to your use of the Payment Services, we may delay your Payout Schedule or defer payout or restrict access to your Proceeds. We may also do so if requested by any governmental entity, or if we believe it is necessary to comply with applicable laws or court orders.
20. Refunds and Returns : By accepting Credentials through the Payment Services, you agree to process returns of and provide to us, refunds and adjustments for your goods or services (“Refunds”) in accordance with this Agreement and the Operating Rules. If a Refund is required by your refund policy and you notify Customer that you will make a Refund, we will provide the Refund to Providers, and you will provide us with funds equivalent to the amount of the Refund in a timely manner. You authorize us to deduct the amount of the Refund from the Proceeds for purposes of compensating us for the Refund. If your Proceeds are not sufficient to compensate us for the Refund, you authorize the Licensed Partner or us to deduct the amount of the Refund from future Proceeds until we have satisfied the amount of the Refund. We will only accept Refund instructions if received within 90 days from the date of a Transaction, except for air travel products (for example, air tickets) if both you and we agree, where a refunding period of 365 days is applicable. We have no obligation to and will not accept any returns of any of your goods or services from your Customers on your behalf.
21. Transaction History :
21.1The records of Transactions that are processed using the Payment Services (“Transaction History”) will be updated in your Merchant Account.
21.2Transaction History for the previous twelve (12) months will be available to you in your Merchant Account. Notwithstanding that we will provide Transaction History in your Merchant Account, you are responsible for retaining records of all Transactions and other data associated with your Merchant Account, and the accuracy of such records, as may be required for your business by applicable laws. We have no obligation to maintain the Transaction History in your Merchant Account for a prolonged time and may change the duration of the Transaction History from your Merchant Account at any time.
22. Pooled Accounts : Before we settle Proceeds to your Linked Account, funds to be settled may be co-mingled and held with other Merchants’ funds in one or more pooled accounts maintained by us at one or more banks, on your behalf and for the benefit of you and other Merchants (“Pooled Account”). We have the sole discretion over the establishment and maintenance of such a Pooled Account. You will not receive interest or any other earnings on any funds that we handle for you, including the funds held in a Pooled Account. We will not voluntarily make funds held in a Pooled Account available to our creditors in the event of bankruptcy or for any other purpose except as specified in this Section 22. As a consideration for using the Payment Services, we take all rights and legal ownerships to any interests and/or other earnings generated or attributable to our holding of funds in such a Pooled Account.
23. Dormant Merchant Accounts : If you do not process payments through your Merchant Account for an extended period of time of four (4) months or do not have a verified Linked Account, your Merchant Account may be deemed dormant. In the event of a dormant Merchant Account, we will provide you with notice and instructions for obtaining the remaining funds, if any. The remaining funds may be deemed unclaimed or abandoned after a certain period of time under applicable laws.
24. Your License to Use the Payment Services :
24.1 Subject to the terms and conditions of this Agreement, we hereby grant to you a personal, limited, non-exclusive, revocable, and non-transferable license, without the right to sublicense, to electronically access and use the Payment Services and any Additional Materials, within the designated territories, in accordance with this Agreement and any documentation or other policies or instructions made available to you by us, This license is granted for the purpose of (a) using Payment Services, and (b) accepting and receiving payments through the Payment Services. We reserve the right to revoke this license at our sole discretion in the event of any breach or violation of this Agreement, including but not limited to prohibited uses or other terms and conditions set forth herein.
24.2 Services. The “Additional Materials” mean documentations, images, support pages, any Application Programming Interfaces (“APIs”) defined as a way for two or more computer programs to communicate with each other, and any updates thereto, provided to you hereunder by us. If any such updates are subject to new or additional terms, we may update this Agreement (in accordance with the Amendment Section 50 below) or otherwise provide notice to you of such new or additional terms. We reserve the right to revoke this license at any time if you access or use the Payment Services or any Additional Materials for purposes other than as expressly permitted by this Agreement. This license shall not convey any ownerships, intellectual property rights, or any other property rights to you, and we reserve all rights not expressly granted to you in this Agreement. The Payment Services and the Additional Materials may be protected by trademark, copyright, trade secret, and other intellectual property laws. We own all interests, titles, and other IP Rights in the Payment Services and the Additional Materials, and all copies thereof.
24.3 Except as otherwise expressly permitted by this Agreement, you will not permit or enable any third party to:
24.3.1Use the Payment Services or any Additional Materials for any purpose or in any manner other than as expressly permitted in this Agreement;
24.3.2Rent, sell, lease, lend, convey, redistribute, sublicense, or otherwise provide any third party with the use of the Payment Services or Additional Materials without prior consent from us;
24.3.3Modify, decompile, reverse engineer, alter, tamper with, or create derivative works of any Payment Services or Additional Materials;
24.3.4Use the Payment Services or Additional Materials in a manner that infringes or violates any third-party rights or any applicable laws; or
24.3.5Access legacy or internal application programming interfaces or data feeds that we do not intend to be available.
24.3.6Upon any termination of this Agreement, you will promptly cease accessing and using the Payment Services and the Additional Materials and delete any copies of the Additional Materials in your custody or control.
24.4 Except as otherwise expressly permitted by this Agreement, you will not permit or enable any third party to:For the purposes of this Agreement, “IP Rights” means all patent rights; copyrights, including rights in any derivative works; moral rights; rights of publicity; trademark, trade dress, and service mark rights; goodwill; trade secret rights; and other intellectual property rights as may now exist or hereafter come into existence, including all applications and registrations, renewals, and extensions thereof, under the laws of any country, territory, or jurisdiction.
25. Receipts : If such payment Credentials are enabled for you, for any Card Transaction where your Customer is present and the Transaction is greater than a certain amount as defined by the Card Provider, you will request that your Customer personally sign for such Transactions. For any Transaction greater than a certain amount defined by the Card Provider, you will also make a receipt available to your Customers unless the Customer declines such a written receipt.
26. Customer Service : You are solely responsible for customer service relating to the goods or services you sell to Customers. In performing customer service, you will always hold out yourself as a separate entity from us. As between you and us, we are only responsible for customer service issues related to your Merchant Account.
27. Your Warranties and Representations :
27.1 With each Transaction, you process through the Payment Services, you represent, warrant, and covenant to us that:
27.1.1you are a business engaged in the sale of products or services that are not otherwise prohibited pursuant to this Agreemen
27.1.2if you are a sole proprietor, you are at least 18 years of age;
27.1.3you are eligible to register your Merchant Account, use the Payment Services, and have the right, power, and authority to enter into and perform under this Agreement on behalf of the Merchant;
27.1.4the information you provide to us as part of your registration is current, accurate, and complete;
27.1.5any Transaction submitted by you is a bona fide Transaction for permitted products or services;
27.1.6any Transaction submitted by you will accurately describe the products or services sold and/or delivered to a Customer;
27.1.7you will not engage in any unfair, deceptive, or abusive acts or practices when utilizing the Payment Services;
27.1.8you will fulfill all your obligations to each Customer for which you submit a Transaction and will resolve any consumer dispute or complaint directly with the Customer;
27.1.9you and all Transactions initiated by you will comply with all laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations;
27.1.10no Transaction submitted by you through the Payment Services will represent a sale to any principal, partner, proprietor, or owner of your entity, with the exception of Transactions in the ordinary course of business; and
27.1.11you will not use the Payment Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner interfering with the normal operation of the Payment Services.
28. ReThink’s Warranties and Representations :
28.1ReThink hereby represents, warrants, covenants, and agrees with ReThink as follows:
28.1.1ReThink is duly organized and validly existing under the laws of the country, state, and/or province of its formation and has the full power and authority to conduct businesses as well as to execute this Agreement and perform its obligations thereunder;
28.1.2ReThink has full right, power, and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all action required to be taken for the due and proper execution and delivery of this Agreement and the performance of ReThink’s obligations under this Agreement has been taken,
28.1.3ReThink will perform all services in a commercially reasonable manner and in accordance with prevailing industry standards;
28.1.4ReThink will (and it will procure that its affiliates will) obtain, hold, and maintain all filings, licenses, permits, and consents as may be required pursuant to any applicable laws in order for it to conduct its business and perform its obligations under this Agreement;
28.1.5ReThink will not engage in any unfair, deceptive, or abusive acts or practices when providing the Payment Services; and
28.1.6ReThink will not knowingly provide the Payment Services for any fraudulent or illegal undertaking or in any manner interfere with the normal operation of the Payment Service; and
28.1.7the Payment Services and Additional Materials do not infringe or misappropriate any patents, copyrights, trademarks, trade secrets, or other similar IP Rights of any third party.
28.2In addition, ReThink represents, covenants, and warrants that the Payment Services do not violate any applicable laws, including (without limitation) any laws in regard to anti-corruption, anti-bribery, and anti-money laundering (any such violation being a material breach of this Agreement).
29. Your Liability :
29.1Refunds, reversals, claims, fines, fees, penalties, and other liability arising out of or related to your use of the Payment Services and your breach of this Agreement are your sole responsibility, including but not limited to fines and fees from government agencies, regulatory bodies, financial institutions, or card network associations. You are also responsible for the use of lost or stolen Credentials to purchase products or services from your business if such lost or stolen Credentials are caused by your acts or omissions. You are responsible for selecting and implementing security controls that are consistent with the nature, size, and scope of your business. You agree to reimburse any impacted party for any and all such liability that may arise due to the loss or theft of Credentials, whether such reimbursement is due to a Customer, us, Providers, or an impacted third party.
29.2In addition, you agree to reimburse us for any liability incurred due to your fulfillment obligations to Customers, including delivery of goods or services.
30. Indemnification : Each Party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other Party (the “Indemnified Party”) and its affiliates, officers, directors, employees, and agents from and against any claim, suit, demand, loss, liability, damage, action or proceeding (including costs, expenses, and reasonable attorneys’ fees) from a third party (collectively, “Loss”) arising out of or related to: (i) Indemnifying Party’s noncompliance with the Security Standards and Provider rules, or a breach of this Agreement or (ii) a Data Compromised Event caused by the Indemnifying Party’s acts or omissions; (iii) Indemnifying Party’s gross negligence or willful misconduct in association with the Payment Service; (iv) Indemnifying Party’s infringement of a third party’s IP rights in association with the goods or service or the Payment Services; (iv) Indemnifying Party’s violation of applicable laws and regulations in the designated territory. This indemnification does not apply to a claim or complaint to the extent the Indemnified Party is comparatively at fault due to its own gross negligence, willful misconduct, or breach of this Agreement. “Data Compromise Event” means an occurrence that results, or may have resulted, directly or indirectly, in the unauthorized access to, acquisition, or disclosure of Payment Data in the possession or control of Indemnifying Party or its subcontractors, agents, or service Providers. The obligation to indemnify in the case of a Data Compromise Event shall include all (i) reasonable costs directly associated with notifications that are legally required to be sent to individuals affected by such Data Compromise Event, including call-center, website, or similar notification-related support therefor, (ii) fines, assessments, penalties, costs, liabilities, or other obligations imposed by a governmental authority or Providers as a result of such Data Compromise Event, and (iii) costs associated with providing monitoring for individuals impacted by the Data Compromise Event, as required by an applicable governmental authority.
31. No Warranties :
31.1EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PAYMENT SERVICES ARE PROVIDED ON AN “AS IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PAYMENT SERVICES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE PAYMENT SERVICES OR FROM US OR THE PROCESSORS, SUPPLIERS, OR LICENSORS OF RETHINK OR PROVIDERS, WILL CREATE ANY WARRANTY FROM ANY OF THESE DISCLAIMING ENTITIES TO YOU. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER RETHINK, ITS LICENSE PARTNER, NOR PROVIDERS HAVE ANY CONTROL OVER THE GOODS OR SERVICES THAT ARE PAID FOR WITH THE PAYMENT SERVICES, AND NEITHER RETHINK, ITS LICENSE PARTNER, NOR PROVIDERS CAN ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO.
31.2ADDITIONALLY, THE PAYMENT SERVICES MAY BE OPERATED FROM FACILITIES LOCATED IN A DIFFERENT COUNTRY THAN THE DESIGNATED TERRITORY(IES). WE MAKE NO REPRESENTATIONS OR GUARANTY THAT THE PAYMENT SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE AT ANY TIME AND IN ALL LOCATIONS. THOSE WHO ACCESS OR USE THE PAYMENT SERVICES DO SO AT THEIR OWN RISK OF VIOLATION OF LOCAL RULES, REGULATIONS, OR LAWS IN THEIR PERSPECTIVE JURISDICTIONS AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS AND COMPLIANCE WITH THE OFFICE OF FOREIGN ASSETS CONTROL (OFAC) AND SPECIALLY DESIGNATED NATIONALS (SDN) LISTS. THE PAYMENT SERVICES SHALL NOT BE USED BY ANY PERSONS OR ENTITIES (A) IN A COUNTRY EMBARGOED BY THE UNITED STATES, CANADA, THE UNITED KINGDOM, OR THE EUROPEAN UNION, OR (B) BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT, OR BY THE COUNTRIES IN THE DESIGNATED TERRITORY(IES).
32. Limitation of Liability and Damages : EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, ANY AMOUNTS TO BE PAID PURSUANT TO THE INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY HEREUNDER (COLLECTIVELY, THE “EXCLUDED LIABILITY CATEGORIES”) AND SUBJECT TO BELOW, IN NO EVENT SHALL WE OR OUR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF ANY INFORMATION OR ADDITIONAL MATERIALS, INCLUDING UNAUTHORIZED ACCESS BY THIRD PARTIES OF ANY INFORMATION OR ADDITIONAL MATERIALS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM CAUSES OUTSIDE OUR CONTROL. EXCEPT IN THE CASE OF THE EXCLUDED LIABILITY CATEGORIES, OUR MAXIMUM LIABILITY ARISING FROM THE SUBJECT MATTER OF THIS MERCHANT AGREEMENT FOR ANY CLAIM OF ANY KIND IN THE AGGREGATE SHALL BE NO MORE THAN THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THIS MERCHANT AGREEMENT FOR THE IMMEDIATELY PRECEDING 12 MONTHS REGARDLESS OF FORM OF ACTION OR LEGAL THEORY.
33. Restricted Use : You will not act as a payment processor or resell the Payment Services to any third party. You shall only use the Payment Services for your own account, and you shall not use the Payment Services for any third party. In the event that you are acquired by or merged with another entity, you must promptly notify us, and we reserve the right to review the terms of this Agreement and make any necessary adjustments or terminate the Agreement, subject to any applicable laws and regulations. Your continued use of the Payment services following such acquisition or merger will be subject to our approval and any revised terms of the Agreement that may be imposed.
34. Unauthorized or Illegal Use : You will only accept Credentials for Transactions permitted by applicable laws. We reserve the right to not authorize or settle any Transaction if we reasonably believe it is in violation of applicable laws, regulations, or rules, or that it may harm you, your Customers, other Merchants, Providers, or us. If we suspect that your Merchant Account has been used for an unauthorized, illegal, or criminal purpose, including a purpose explicitly barred by this Agreement, you give us express authorization to share information about you, your Merchant Account, and any of your Transactions, at our sole discretion, with law enforcement and our financial institution partners and Providers for a limited investigative purpose.
35. Operating Rules : By using the Payment Services, you agree to comply with all applicable bylaws, rules, and regulations set forth and amended from time to time by Providers (“Operating Rules”). Operating Rules can be found on www.ReThinkPay.com/legal. We may change this Agreement in connection with amendments to the Operating Rules. In the event of inconsistency between the Operating Rules and this Agreement, and except as otherwise agreed by Providers, the Operating Rules shall apply.
36. Card Network Rules : The Card Networks have established guidelines, bylaws, rules, and regulations (“Network Rules”). You agree to comply with all applicable Network Rules that are applicable to you. You can review portions of the Network Rules by contacting the Providers. The Card Networks may amend the Network Rules from time to time. We reserve the right to amend the Agreement at any time necessary to comply with Network Rules.
37. Logos and Marks : The Providers’ logos shall be displayed in parity with and identified as prominently as all other forms of payment supported by the Merchant. The Providers’ logos shall be used only for the purpose of indicating acceptance of the Providers by the Merchant as a form of payment, unless otherwise authorized by the Provider. Merchant shall present a truthful description of the Payment Services.
38. Intellectual Property : You acknowledge that Providers own all rights, titles, and interests in and to the service offered by Providers, including the right to all Intellectual Property thereto. Certain Providers may permit ReThink to use their Intellectual Property for the limited purpose of providing Payment Services consistent with their terms of service.
34. Data Privacy : Each Party agrees to protect information about identifiable individuals that it may collect or otherwise have access to in connection with (i) in the case of Merchant, any Payment Credential identifier (such as an account number) you accept for a Transaction or (ii) in the case of us, performance of the Payment Services (in each case, “Personal Information”), and agrees only to use such Personal Information for the purpose of fulfilling your obligations under this Agreement and for other purposes permitted by laws. Personal Information includes any information or data, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained from the information or data collected by either you or us during the operation, management, or administration of the Payment Services. Each Party agrees to comply with all applicable laws and rules in connection with its collection, security, and dissemination of any Personal Information, financial, card, or Transaction information. Each Party shall take all commercially reasonable steps to ensure that such Personal Information is protected against misuse and loss, or unauthorized access, modification or disclosure and shall promptly notify the other Party of any loss of, or any unauthorized disclosure of or access to, such Personal Information. Each Party is permitted to retain records of Payments for purposes of complying with applicable laws and internal compliance requirements. Each Party is fully responsible for the security of data in its possession, including, in the case of Merchant on your site, mobile app, or POS.
40. Your Data Security Obligations :
40.1You are fully responsible for data security on your site, through your app, or otherwise in your possession. You agree to comply with all applicable laws and rules in connection with your collection, security, and dissemination of any personal, financial, Card, or Transaction information (defined as “Payment Data”) on your site or through your app. You are solely responsible for compliance with any laws, regulations, or rules applicable to your business.
40.2You agree to use any procedures necessary in order to protect consumer privacy and consumer information and shall use Personal Information only for the purpose of fulfilling your obligations under this Agreement. You shall take all commercially reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorized access, modification or disclosure and shall promptly notify the other Party any loss of, or any unauthorized disclosure of or access to, the Personal Information. You may retain payment records for compliance with applicable laws and internal compliance requirements.
41. Card Network Data Security Standard : You always agree that you will be compliant with the Payment Card Industry Data Security Standards (PCI•DSS) and the Payment Application Data Security Standards (PA•DSS), as applicable. The steps you must take to comply with PCI•DSS and PA•DSS when using our Payment Services will vary based on your implementation. If we believe it is necessary based on your implementation and request it of you, you will promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Payment Data defined as a cardholder’s account number, expiration date, and CVV2. You must not store CVV2 data at any time. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
42. Confidential Information : Each Party acknowledges that Confidential Information is valuable to the parties and agrees to treat as confidential all Confidential Information received from or belonging to the other party in connection with this Agreement, as outlined in the Non-Disclosure Agreement (NDA) executed by both parties. Neither Party shall disclose such information except to perform its obligations under this Agreement or as required by applicable laws, and in the event, such disclosure is required by laws, the receiving Party shall give the other Party prior notice of such disclosure, except to the extent such notice is prohibited under applicable laws (and in such event shall provide notice as soon as permissible thereafter). Upon termination of this Agreement and the disclosing Party’s written request, the other party shall promptly return or destroy all tangible material embodying Confidential Information, in accordance with the terms of the NDA “Confidential Information” means all nonpublic, proprietary or other confidential information, whether in oral, written or other form, including: the content and performance of this Agreement, business plans, capitalization tables, budgets, financial statements; costs, prices, and marketing plans, contracts and licenses, employee, supplier, shareholder, partner or investor lists, technology, know-how, business processes, trade secrets and business models, notes, sketches, flow charts, formulas, blueprints, and elements thereof, and source code, object code, graphical design, user interfaces and other intellectual property, including that of any supplier or other third party (including the interface technologies, security protocol and certificate to any other website or enterprise provided by Providers). Customer information shall be deemed Confidential Information of both Parties; provided that any information related to Customers’ dynamic account token, which is in possession of us, shall be deemed our Confidential Information and Transaction details (date, amount and nature of purchase) shall be deemed your Confidential Information without detracting from the foregoing, Merchant hereby licenses to us the right to use, disclose and exploit Transaction details on an aggregated, anonymized basis that does not identify Customers or Merchant and that does not indicate or allow for the association of the Transaction details with Merchant.
43. Publicity : Neither party may issue any press release, social media posts, or make any public announcement pertaining to this Agreement without the prior written consent of the other party unless required by applicable law. However, the preceding limitation shall not be interpreted to prevent ReThink or Providers from making statements about their respective aggregate business or the Payment Services in general without using Merchant’s name or trademarks without Merchant’s consent, in or outside of the designated territory.
44. Force Majeure : Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including but not limited to a Force Majeure Event, provided that a written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party immediately after the start of such Force Majeure Event. However, a Force Majeure Event will not excuse a party’s failure to make any payment pursuant to the Payment Services. A “Force Majeure Event” means an event that is not foreseeable, the consequence of which cannot be prevented or avoided and beyond the reasonable control of the affected party including, without limitation to, acts of God, terrorism, pandemic, natural catastrophe, fire, computer virus, defect in design of instrumental software, attack by hacker, change in laws or policies, major outages of a telecommunication carrier’s network connections, interface incidents of partner banks and financial institutions, gateway incidents of mobile carriers, unexpected incidents resulting from changes in Merchant’s systems, unexpectedly large increases in traffic volume as a direct result of any orders of a governmental authority, and governmental authority intervention that results in the seizure or confiscation of the affected party’s systems, in each case to the extent such event(s) are beyond the control of the affected party and only for as long as such event(s) persist. The affected party shall use its best efforts to resume its performance under this Agreement and minimize further delays once the Force Majeure Event is passed.
45. Parties : This Agreement binds both parties and both parties’ respective representatives and permitted and approved successors, including those by merger and acquisition or any permitted assigns.
46. Change of Business : If you intend to change your business, such as a change in the goods or services you offer or your trade name, you agree to notify us 30 days before any such change. In the event of any voluntary or involuntary bankruptcy or insolvency petition or proceeding, you agree to promptly notify us. If there is an adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of twenty-five (25) percent or more of your total assets, or any change in the control or ownership of you or your parent entity, you agree to notify us. In such cases, we reserve the right to conduct a new Know Your Customer (KYC) and Anti-Money Laundering (AML) review as appropriate. You will also notify us of any judgment, writ or warrant of attachment or execution, or levy against twenty-five (25) percent or more of your total assets no later than three (3) days after you obtain knowledge of it.
47. Choice of Law; Jurisdiction, Venue, and Arbitration. :
47.1This Agreement is governed by the laws of the State of California without regard to its choice of law provisions. The exclusive venue for any actions or claims arising under or related to this Agreement will be the state courts located in Los Angeles County, California. Any disputes arising out of or related to this contract, including but not limited to its formation, interpretation, performance, or breach, shall be resolved by final and binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. The arbitration shall take place in California or at such other location as the parties may mutually agree. The arbitration shall be conducted by a single neutral arbitrator who is a retired judge or an attorney with at least ten years of experience in the field related to the dispute. The arbitrator's decision shall be final and binding on the parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Half of the attorney’s fees reasonably used for defending or bringing the case will be reimbursed to the winner.
47.2All parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this Agreement. Each party further understands that merchant’s use hereunder may render the subject of this Agreement as void or unenforceable under united states federal laws, and as a result, the parties expressly acknowledge and agree that if united states federal laws that would render the subject of this Agreement as void or unenforceable that does not and will not apply to this Agreement, the transactions contemplated hereby, or the relationship of the parties hereto, and notwithstanding, the parties will cooperate to perform the substance of their obligations hereunder. In no event shall a claim be adjudicated in federal district court. In the event that either party commences a claim in federal district court or moves to remove such action to federal district court, the parties hereby mutually agree to stipulate to a dismissal of such federal claim with prejudice.
48. Headings : Headings are included in this Agreement for convenience only, may or may not be italicized, and will not be considered in interpreting this Agreement. References to the singular shall include the plural and vice versa.
49. Waiver :
49.1No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
49.2The Agreement does not limit any rights we may have under trade secret, copyright, patent, or other laws. Our delay or failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such or any other term.
50. Amendment :
50.1We have the right to change or add to the terms of this Agreement and related schedules at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Payment Services or software with or without an advance notice that we in our sole discretion deem to be reasonable in the circumstances. Any continued use of the Payment Services or software after our publication of any such changes will constitute your acceptance of this Agreement as modified.
50.2By signing this Agreement, the Merchant also acknowledges and agrees that new additional payment Credentials shall be added without the modification or amendment of this Agreement, and the Merchant shall comply with all the terms and conditions and the operating rules, which can be found at www.ReThinkPay.com/legal, provided by the payment providers.
51. Assignment : This Agreement, the amendment(s) of it, and any rights or licenses granted hereunder may not be transferred or assigned by you without our prior written consent, except in the case of a merger, acquisition, or other type of business reorganization involving your company, in which case our consent shall not be unreasonably withheld. We may assign this Agreement without consent or other restriction upon notice to you or where substantially all of ReThink’s assets are sold. Any attempt by you to assign this Agreement, or any rights or licenses granted herein, without ReThink’s express written consent will be null and void
52. Severability : In case any one or more of the sections contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if the such invalid or illegal or unenforceable provision had never been contained herein. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the court or other tribunal making such determination is authorized and instructed to modify this Agreement to effect the original intent of the parties as closely as possible so that the transactions and Agreements contemplated herein are consummated as originally contemplated to the fullest extent possible.
53. Term : This Agreement is effective upon the date of execution of the Agreement, either by signing it or agreeing to it by electronically indicating acceptance. and continues so long as you use the Payment Services or until terminated by you or us.
54. Termination of Payment Services. :
54.1Either party may terminate this Agreement at any time by providing thirty (30) days’ prior written notice to the other party. Any termination of this Agreement by us or you do not relieve you of obligations to pay Fees or any other amount you may owe us under this Agreement, including but not limited to the Set-up fee, Refunds, or any other type of Chargebacks
54.2Furthermore, we may, upon an up to ten (10) day advance notice unless such notice is prohibited by law or whenever is not applicable, terminate or temporarily suspend its provision of any of the Payment Services to you if any of the following events occurs in relation to you or any of your affiliates, provided that you or your affiliates shall promptly notify us of any such events:
54.2.1there is a change in governing laws, rules, or regulation from Providers, including any change in interpretation of existing applicable laws, or Network rule or regulation, or we reasonably determine that your services or activities violate applicable laws, or Network rule or regulation and reasonably determine that no modification makes the continued performance of this Agreement under the then-current terms and conditions commercially practical by us can be agreed upon;
54.2.2We are notified of an adverse regulatory action that impacts our obligations under this Agreement or that would disparage, dilute, or tarnish our reputation taken by a jurisdiction in the designated territory;
54.2.3We obtain evidence with a reasonable suspicion that one or more of your activities violates applicable laws (including with respect to the holding of licenses required to conduct such activities) or the Agreement, including without limitation, a violation of policies and procedures to prevent money laundering and/or terrorism financing.
54.2.4We receive direction from any regulatory authority to cease or materially limit its performance of the obligations under this Agreement;
54.2.5We have reason to believe that a fraud is being perpetrated or has actual evidence that a fraud is being planned against you or against us in connection with services that it provides to you; or
54.2.6in the event of degradation or instability of our system(s) or an emergency and suspension of your access to the Services is necessary to minimize threats to and protect the operational stability and security of our systems.
54.2.7Upon discovery of a circumstance which would lead to a suspension of the Payment Services, we shall notify You, whenever reasonably practical and if permitted by applicable laws, prior to such suspension by sending an email to the main contact provided to us during the enrollment of your Merchant Account for risk and fraud related matters detailing the circumstance in sufficient detail so you can remediate the circumstance, if possible. In the event we do not receive confirmation of remediation or an acceptable plan for remediation from you within 48 hours of such notice, we may suspend services. The scope and duration of the suspension of the Services shall be reasonable in view of the events giving rise to the suspension. We shall review on a periodic basis whether the continuation of a suspension is warranted. If advance notice is not practicable, we shall notify you as soon as possible after the suspension begins.
55. Payment Services Upon Closure of Your Merchant Account :
55.1Closure of your Merchant Account means that you can no longer accept any Transactions. Any funds that we are holding in custody for you at the time of closure, and any funds relating to a Transaction processed prior to account closure, less any applicable Fees including but not limited to Refunds, will be paid out according to the Payout Schedule, subject to the other conditions in this Agreement. If an investigation is pending at the time you close your Merchant Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds, we will release those funds to you.
55.2Upon termination and closing of your Merchant Account, we will immediately discontinue your access to the Payment Services. You agree to complete all pending Transactions, stop accepting new Transactions through the Payment Services and, where using the Payment Services, immediately remove all Provider logos from your site or in your app.
55.3Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement.
55.4Upon termination, you agree to (i) immediately cease your use of the Payment Services, and (ii) discontinue use of any IP Rights licensed under this Agreement. In addition, upon termination you understand and agree that (iii) the license granted under this Agreement will end, (iv) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, (v) we will not be liable to you for compensation, reimbursement, or any damages in connection with your use of the Payment Services, or any termination or suspension of the Payment Services or deletion of your information or account data, and (vi) you are still liable to us for any Fees, Refunds, or other amounts incurred by you or through your use of Payment Services prior to termination.
56. Survival : The following sections will survive termination of this Agreement: 6 (Fees), 7 (Errors), 8 (Taxes), 9 (Chargebacks), 12 (Identity Verification and Audit), 15 (Access to Proceeds), 16 (Setoff Rights), 18 (Payout Schedule), 19 (Availability of Proceeds), 21 (Transaction History), 23 (Dormant Merchant Accounts), 26 (Customer Service), 29 (Your Liability), 30 (Indemnification), 32 (Limitation of Liability and Damages), 38 (Intellectual Property), 39 (Data Privacy), 40 (Your Data Security Obligations), 42 (Confidential Information), 43 (Publicity), 47 (Choice of Law; Jurisdiction, Venue, and Arbitration), Appendix A Section 15 (Data Security/Personal Cardholder Information) and Appendix A Section 23 (Chargeback Reserve Account).
57. Merchant and Affiliates : Any Affiliate of Merchant that intends to utilize the Payment Services is required to sign a separate Merchant Agreement with ReThink.
58. Notices : Any Affiliate of Merchant that intends to utilize the Payment Services is required to sign a separate Merchant Agreement with ReThink.
58.1Any written legal notice to ReThink shall be sent via a nationally recognized overnight carrier, with return receipt requested, and such notice will be deemed received when actually received by ReThink or Merchant. In addition, all notices must also be sent via email to the signatory below.
58.2Such notices will be addressed to Merchant’s address provided by you on your application or the last address shown on ReThink’s records, or such other addresses as ReThink may designate in writing. ReThink’s address is listed in this Agreement’s preamble.
59. Identity Verification and Audit : To help fight the funding of terrorism and money laundering activities, applicable laws require all financial institutions and applicable non-financial enterprises and professions to obtain, verify, and record information that identifies each person who opens an account. This means we will ask for certain information and identifying documents to allow us to identify you. You and your representative(s) authorize us prior to our acceptance of your application and from time to time thereafter, to investigate the individual and business history and background of the Merchant, representative and officers, partners, proprietors, and/or owners of the Merchant, and to obtain other background investigation reports on each of them that we consider necessary to review the acceptance and continuation of your application.
DEFINITIONS : The following Capitalized terms used in this Agreement shall have the meanings ascribed below:
"ACH" and "ACH Network" means the Automated Clearing House paperless entry system controlled by the Federal Reserve Board.
"Additional Materials" shall be defined as any and all supplementary materials, including but not limited to images, graphics, videos, and text, that are provided by ReThink and are intended to be included for use in Merchant’s marketing, only with ReThink’s pre-authorization approval in writing. ReThink shall not be responsible for any errors or inaccuracies in the Additional Materials provided by ReThink.
"Agreement” shall have the meaning set forth in the preamble.
“Appendix A” shall mean Appendix A to this Agreement, which is hereby incorporated herein and made a part hereof.
"Application Programming Interfaces" or "APIs" shall have the meaning set forth in Section 24.2.
"Authorization" means a computerized function or a direct phone call to a designated number to examine individual Transactions to obtain approval from the Card Issuer to charge the Card for the amount of the sale.
"Authorized Representative” shall have the definition of Section 10.3.
"Card" means (i) a valid credit card in the form issued under license from Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., or Discover ("ReThink Card"); or (ii) any other valid credit card accepted by Merchant by agreement with ReThink.
"Card Association" means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., Discover, or any other Card Issuers that provide Cards accepted by Merchant by agreement with ReThink including Apple Pay, GPay (Google Pay), Samsung Pay, Venmo, PayPal, Zelle, Cash App, Alipay, WeChat Pay, Revolut, Paytm, Skrill, TransferWise (Wise), Square Wallet, and Curve.
"Card Issuer" means the financial institution or company which has provided a Card to a Cardholder.
"Card Networks” shall mean a payment network of an association of member banks that facilitates the payment transaction between the merchant and issuer, i.e., the requestor (cardholder to the merchant to acquiring bank) and source (issuing bank) of funds. It’s made up of both card networks like Visa, MasterCard, Discover, JBC, and other networks like Zelle (interbank network), Cirrus, Plus, and others.
"Card Not Present (CNP)" imprint is obtained either at the point of sale or directly entered on the online portal by the authorized card user.
"Cardholder Information" means any non-public, sensitive information about a Cardholder, including any combination of Cardholder name plus the Cardholder's social security number, driver's license or other identification number or credit or debit card number, or other bank account number.
"Cardholder" means the person whose name is embossed upon the face of the Card.
"Chargeback" is defined as a charge that is returned to a payment card or merchant refund after a customer successfully disputes an item on their account statement or transactions report. A chargeback may occur on debit cards (and the underlying bank account) or on credit cards. Chargebacks can be granted to a cardholder for a variety of reasons.
"Chargeback Ratio" means, as of a determination date, the quotient (expressed as a percentage) of (i) the amount of the gross chargeback calculated as the aggregate chargeback for all regions reflected on the chargeback report for the preceding 30 days incurred by the Merchants divided by (ii) the amount of the balances for all Payment Volumes for such 30-day period, each component of the foregoing definition calculated in a manner consistent with past practices.
"Chargeback Recovery" means Chargeback values which will be recovered from the Merchant's net settlement amount, or will be debited from the Merchant's nominated bank account should the settlement not be sufficient to cover the value of the Chargeback;
"Clearing House” shall mean an intermediary between buyers and sellers of financial instruments.
"Credentials” shall have the meaning of information that a customer has opted to save to a merchant's account in order to make future purchases more convenient. Data commonly includes billing name, billing address, card account number, and card expiration date.
"Credit Voucher" means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account.
"Customer” or “Cardholder” shall mean the shoppers or another type of customer that accepts payments for Merchant’s goods and services.
"Effective Date" is the date defined above in the preamble of the Agreement.
"Excessive Chargebacks” shall have the definition in Section 9.8.
“Data Compromised Event” shall have the definition in Section 30
"Fees” means the charges associated with processing credit card transactions, debit card transactions and providing payment services to merchants. These fees can vary depending on the processor and the specific services offered, including transaction fees, chargeback fees, monthly fees, interchange fees, assessment fees and setup fees.
"Intellectual Property Rights” shall mean any and all proprietary rights, titles, and interests, whether registered or unregistered, recognized under the laws of any jurisdiction, in and to any creation, invention, discovery, or work of authorship, including but not limited to patents, patent applications, trademarks, service marks, trade names, trade dress, domain names, copyrights, moral rights, trade secrets, know-how, proprietary information, software, databases, algorithms, designs, models, methodologies, specifications, documentation, and any other form of intellectual property rights or protections.
"IP Rights” shall have the definition in Section 24.4;
"ISO" means, Independent Sales Organization or Member Service Provider providing limited services to the Merchant, and which is a party to this Agreement as specified.
"License Partners” shall have the definition of a partnering bank to ReThink or is an acquirer with local acquiring license and authorization in its designated territory(ies).
"Linked Accounts" shall have the meaning set forth in Section 11.
“Marks” shall have the meaning set forth in Section 3 in Appendix A.
"Merchant Account” shall have the definition of being a type of business bank account that allows a business to accept and process electronic payment card transactions. Merchant accounts require a business to partner with a merchant acquiring bank that facilitates all communications in an electronic payment transaction.
"Mid- or Non-Qualifying Transaction" means any sale Transaction that fails to qualify for lowest interchange rate assigned by the applicable Card Association for Merchant's standard card industry code, and which may be charged fees as set forth in the Merchant Form.
"Network Rules" shall have the meaning set forth in Section 36.
"Officer" means the person or persons duly authorized by the Company to sign the Application and obligate the Company to fully abide by all provisions of the Agreement as now written or as modified in the future.
"Operating Rules” are defined and listed in ReThink’s posted policy on www.ReThinkPay.com/legal
"Payment Application Data Security Standard (PA-DSS)" is a set of requirements intended to help software vendors develop secure payment applications for credit card transactions. This ensures that companies do not store prohibited data, such as the security PIN, magnetic strip or CVV2.
"Payment Card Industry Data Security Standard (PCI DSS)" is a widely accepted set of policies and procedures intended to optimize the security of credit, debit, and cash card transactions and protect cardholders against misuse of their personal information. The PCI DSS was created jointly in 2004 by four major credit-card companies: Visa, MasterCard, Discover, and American Express.
"Payment Services” shall have the meaning set forth in Section 3. Payment processing shall have meaning of how businesses complete credit card and debit card transactions on the ReThink or Licensed Partners platform and their respective payment gateways to securely transmit data so money from a customer's issuing bank can be transferred to a merchant's account or a Transaction completed.
"Payout Schedule” shall be defined as the dates at which payments are made by ReThink to the Merchant for their account balance (net of fees and other charges).
"Pooled Accounts" shall have the meaning set forth in Section 22.
“POS” or “Point of Sale” shall mean Point-of-sale as the term suggests is the place where the actual sale happens, where the retail transaction is completed, and the merchant receives the payment for the items or services offered to the customer.
“Personal Information” shall have the meaning set forth in Section 39.
"Proceeds” is defined as the net amount received after deduction of any discount, charges, chargebacks, or from Reserve Account.
"Prohibited Uses" shall have the meaning set forth in Section 5.
"Providers" shall have the definition financial institutions including ReThink, such as banks, credit unions, fintech companies, and other lending institutions, that provide credit cards to consumers.
"Refunds" shall have the meaning set forth in Section 20.
"Reserve Account" shall have the definition of cash proceeds deposited in a special cash collateral account with the ReThink Administrative Agent and held there as security to protect against defaults or large chargebacks. If any default has occurred and is continuing, the ReThink Administrative Agent may, from time to time, apply the collected balances in said cash collateral account to the payment of the amount due.
“ReThink Administrative Agent” shall have the definition of an individual or organization appointed by ReThink to manage and oversee various financial activities related to payments and reserve accounts. The Administrative Agent is responsible for coordinating transactions, maintaining records, monitoring reserve accounts, and ensuring that all financial obligations are met in a timely and accurate manner.
“Retrieval Request” shall have the meaning set forth in Section 22 of Appendix A.
“Sales Data” shall mean means the electronic data transmission of Card transactions (e.g., card sales and credits).
"Sales Draft" means the form, whether electronically or manually imprinted, evidencing a sale Transaction.
"Transaction" means any sale of products or services, or credit for such, from a Merchant for which the Cardholder makes payment through the use of any Card and which is presented to ReThink for collection.
"Transaction History" shall have the meaning set forth in Section 21.
"Voice Authorization" means a direct phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer, whether by voice or voice-activated systems.
This Appendix A to the Agreement is entered into between the merchant identified on the signed Agreement to which this is an Appendix, and ReThink Financial Inc., a Delaware corporation (“ReThink”). Subject to the requirements of applicable Card Association rules, Merchant and ReThink may and hereby do allocate ReThink’s duties and obligations as they, in their sole and exclusive discretion, deem appropriate.
1. Definitions : The terms used in this Appendix shall have the meanings ascribed in Schedule B of this Agreement or defined in the document with quotations.
2. Honoring Cards : Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to applicable Card Association rules requiring Merchant to elect whether it will accept credit only, debit only or both debit and credit Cards. Merchant may not establish minimum or maximum amounts for Card sales as a condition for accepting any Card. Merchant may not require any Cardholder to pay as a surcharge any part of any discount or charge imposed upon Merchant by this Agreement, whether through any increase in price or otherwise require a Cardholder to pay any charge or price as a condition of sale that is not also required from a customer paying cash. However, Merchant may not, by this term, be prevented from offering discounts to Cardholders for cash purchases. Merchant may not engage in a Transaction if the person seeking to charge the purchase to his or her Card account does not present the Card.
3. Advertising : Merchant will prominently display the promotional materials provided by ReThink 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 ReThink’s direction. Merchant may use promotional materials and Marks only during the term of this Agreement and will immediately cease use and return any inventory to ReThink upon termination thereof. Merchant may not use any promotional materials or Marks associated with Visa, MasterCard, or Discover in any way which suggests or implies that either endorses any goods or services other than ReThink Card services.
4. Card Acceptance : When accepting a Card, Merchant will follow the steps provided by ReThink for accepting Cards and will: (a) Determine in good faith and to the best of its ability that the Card is valid on its face; (b) deliver a true and completed copy of the Sales Draft to the Cardholder at the time the goods are delivered or services performed, or, if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale; and (c) offer the Sales Draft to ReThink for purchase according to ReThink's procedures and the terms of this Agreement.
5. Authorization : Merchant will obtain an Authorization for all Card sales. If Merchant cannot, for any reason, obtain an electronic Authorization through the use of ReThink API or software, Merchant will request a Voice Authorization from ReThink's designated authorization center and will legibly print the authorization number on the Sales Draft. Merchant will not obtain or attempt to obtain authorization from ReThink's authorization center unless Merchant intends to submit to ReThink a Transaction for the authorized amount if Authorization for the Transaction is given. Merchant may not divide a single Transaction between two or more Sales Drafts on a single Card to avoid Authorization limits that may be set by the Card Issuer. Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale and that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Chargeback and does not warranty the Cardholder’s identity. Merchant may not attempt to obtain an authorization by successively decreasing the sale amount. ReThink may refuse to purchase or process any Sales Draft presented by Merchant: (a) unless a proper authorization or approval code has been recorded on the Sales Draft; (b) if ReThink determines that the Sales Draft is or is likely to become uncollectible from the Cardholder to which the transaction would otherwise be charged; (c) if ReThink has reason to believe that the Sales Draft was prepared in violation of any provision of this Agreement.
6. Honoring CardsMultiple Transaction Records : Partial Consideration. Merchant may not prepare more than one Sales Draft for a single sale or for a single item but will include all items of goods and services purchased in a single Transaction in the total amount on a single Sales Draft except under the following circumstances: (a) for purchases in separate departments of a multiple department store; (b) for partial payment, installment payment, delayed delivery, or an advance deposit; or (c) for delayed or amended charges governed by rules for travel and entertainment merchants and Transactions.
7. Telephone Orders : Mail Orders, Internet, Preauthorized Orders, and Installment Orders. Unless Merchant has been approved by ReThink to accept mail, Internet or telephone orders, Merchant warrants that it is a walk-in trade business, located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If ReThink determines Merchant has accepted unapproved Card Transactions this Agreement will be immediately terminated, and the value of all Sales Drafts collected from the first day of processing may be charged back to Merchant, and all funds therefrom held as provided in the Agreement. Unless approved by ReThink, this Agreement does not contemplate regular acceptance of Cards for sales accepted by mail or telephone nor through preauthorized orders.
8. Returns and Adjustments : Credit Vouchers. Merchant's policy for the exchange or return of goods sold and the adjustment for services rendered will be established and posted in accordance with operating regulations of the applicable Card Association's regulations.
9. Cash Payments : Merchant may not receive any payments from a Cardholder for charges included in any Transaction resulting from the use of any Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of affecting a deposit to the Cardholder's Card account.
10. Cash Advances : Scrip Purchases. Merchant may not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant's Card or the Card of any other party and may not accept any Card at a scrip terminal, and either action will be grounds for ReThink’s immediate termination of this Agreement.
11. Duplicate Transactions : Merchant may not deposit duplicate Transactions. ReThink may debit Merchant for any adjustments for duplicate Transactions, and Merchant is liable for any Chargebacks resulting therefrom.
12. Deposit of Fraudulent Transactions : Merchant may not accept or deposit any fraudulent Transaction and may not under any circumstances present for processing or credit, directly or indirectly, a Transaction which originated with any other merchant or any other source other than Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved under this Agreement. If Merchant deposits any prohibited Transaction, ReThink may: (a) immediately terminate this Agreement; (b) withhold funds and demand an escrow as provided in this Agreement; and/or (c) report Merchant to Visa, MasterCard, and Discover.
13. Merchant’s employees’ actions are chargeable to Merchant under this Agreement.
14. Collection of Pre-existing Debt : Merchant may not prepare and present to ReThink for purchase any Transaction representing the refinancing of an existing Cardholder obligation including, but not limited to, obligations: (a) previously owed to Merchant; (b) arising from the dishonor of a Cardholder's personal check or relating to a Chargeback; or (c) representing the collection of any other pre-existing indebtedness, including collection of delinquent accounts on behalf of third parties.
15. Data Security/Personal Cardholder Information : Merchant may not, as a condition of sale, impose a requirement on Cardholders to provide any personal information as a condition for honoring Cards unless such information is required to provide delivery of goods or services, or Merchant has reason to believe the identity of the person presenting the Card may be different from that of the Cardholder. Merchant will not, under any circumstances, release, sell or otherwise disclose any Cardholder Information to any person other than ReThink or the applicable Card Association, except as expressly authorized in writing by the Cardholder, or as required by law. ReThink acknowledges that while cardholder information is in its possession it is responsible for the security of such cardholder data and any ensuing storage, processing or transmitting activity on behalf of the customer and would, to that extent only, be responsible for and store and secure such cardholder information under normal industry standards.
15.1Safeguards. Merchant will maintain appropriate administrative, technical, and physical safeguards for all Cardholder Information. These safeguards will (i) ensure the confidentiality of Cardholder Information; (ii) protect against any anticipated threats or hazards to the security or integrity of Cardholder Information; (iii) protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder; and (iv) properly dispose of all Cardholder Information to ensure no unauthorized access to Cardholder Information. Merchant will maintain all such safeguards applicable to Merchant, ISO, or ReThink in accordance with applicable federal and state laws, rules, regulations, and guidance.
15.2Compliance with Card Association Rules. Merchant represents, warrants and covenants that it is and will remain throughout the term of this Agreement in compliance with all Card Association bylaws, operating regulations and rules related to data security, data integrity and the safeguarding of Cardholder Information, including the Payment Card Industry Data Security Standard (“PCI”), MasterCard’s Site Data Protection Program (“SDP”), Visa’s Customer Information Security Program (“CISP”), and Discover Information Security Compliance (“DISC”), in effect and as may be amended, supplemented or replaced. Merchant will cause all of its service providers, subcontractors, and agents to comply with PCI, SDP and CISP requirements at all times. Merchant will report any non-compliance immediately to ReThink in writing. To accomplish the foregoing, Merchant will encrypt all debit, credit, or stored value card numbers whether in storage, transport or backup and will not store data security codes on its systems, network, or software. The ISO may not subcontract, sublicense, assign, license, franchise, or in any manner extend or transfer to any third party, any right or obligation of the ISO set forth in the Agreement. The ReThink may not waive, forgive, release, assign, or fail to insist on strict performance of each requirement.
15.3Annual Certification. Merchant will provide an annual certification to ReThink if requested by ReThink (in a form acceptable to ReThink) certifying compliance with the data security provisions of this Agreement, including compliance with applicable Card Association requirements such as PCI, SDP and CISP. This certification shall also confirm that Merchant and its Affiliates are not engaging in any prohibited uses as detailed in this Agreement or any other relevant documentation. Merchant will provide annual certifications for Merchant’s service providers, subcontractors, and agents.
15.4Response to Unauthorized Access or Criminal Activity. Merchant will notify ReThink within 24 hours after it becomes aware of any breach in security resulting in an unauthorized access to Cardholder Information, any criminal activity, AML concerns, or any type of subpoena, government investigation, or inquiry. Merchant will provide any assistance that ReThink, the issuing bank of any Cardholder, and their regulators and the Card Associations deem necessary to contain and control the incident to prevent further unauthorized access to or use of Cardholder Information. Such assistance may include, but not be limited to, preserving records and other evidence and compiling information to enable ReThink and the issuing bank(s) or the Card Associations to investigate the incident and provide assistance and cooperation to: (i) file suspicious activity reports (as applicable); (ii) notify their regulators (as applicable); and (iii) notify the affected Cardholder (as required). Unless the unauthorized access was due to ReThink’s acts or omissions, Merchant will bear the cost of notifying affected Cardholder.
15.5Forensic Investigation. The merchant, if undergoing a forensic investigation, must fully cooperate with the investigation until completed.
15.6Miscellaneous. Merchant may not make a claim against ReThink or ISO or hold ReThink or ISO liable for the acts or omissions of other merchants, service providers, Card Associations, financial institutions, or others that do not have a written contractual relationship with ReThink and/or ISO or over which ReThink and/or ISO have no control. These provisions supplement, augment and are in addition to obligations of indemnification, audit, confidentiality, and other similar provisions contained in this Agreement. This Section 15 and each of its subsections will survive this Agreement’s termination. Merchant may not store in any system or in any manner discretionary Card read data including without limitation CVV2 data, PIN data, address verification data or any other information prohibited by Card Association rules.
16. Compliance with Card Association Rules : Merchant will comply with and conduct its Card activities in accordance with all applicable Card Association rules and regulations. Failure to comply with such rules and regulations may result in Merchant being terminated for cause and listed on various Card Association and industry databases, including the Terminated Merchant File and the Merchant Alert to Control High Risk Merchants file (“MATCH”). With respect to MasterCard, Visa USA, or Discover, Merchant may not: (a) accept Cardholder payments for previous Card charges incurred at the Merchant location; (b) establish a minimum or maximum transaction amount as a condition for honoring a Card; (c) require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed; (d) add any surcharge to transactions; (e) add any tax to transactions, unless applicable law expressly requires that Merchant be permitted to impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately); (f) enter into interchange any transaction receipt for a transaction that was previously charged back to ReThink and subsequently returned to Merchant, irrespective of Cardholder approval (Merchant may pursue payment from the Cardholder outside the Card Association system); request or use an account number for any purpose other than as payment for its goods or services; (g) disburse funds in the form of travelers checks, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant; (h) disburse funds in the form of cash. Merchant will pay all Card Association fines, fees, penalties and all other assessments or indebtedness levied by Card Associations to ReThink which are attributable, at ReThink’s discretion, to Merchant’s Transaction processing or business; (i) submit a transaction into the payment system that is illegal or that the merchant knows or should have known was illegal in either the cardholders’ and/or the merchant’s jurisdiction; or (j) submit a transaction into the payment system that the merchant knows or should have known to be fraudulent or not authorized by the cardholder.
17. Merchant's Business : Merchant will notify ReThink immediately if it intends to (a) transfer or sell any substantial part of its total assets, or liquidate; (b) change the basic nature of its business, including selling any products or services not related to its current business; (c) change ownership or transfer control of its business; (d) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant's business; (e) alter in any way Merchant's approved monthly volume, average, or maximum ticket; or (f) change its return policies or to use another fulfillment house different from those identified in Merchant Application. Merchant will notify ReThink promptly in writing if it becomes subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Merchant’s failure to provide notice as required above may be deemed a material breach and will be sufficient grounds for termination of Merchant and for ReThink’s exercise of all its rights and remedies provided by this Agreement. If any change listed above occurs, ReThink may immediately terminate this Agreement.
18. Merchant’s Warranties : Merchant represents and covenants that: (a) all information contained in the Application or any other documents delivered to ReThink or ISO in connection therewith is true and complete and properly reflects Merchant's business, financial condition and principal partners, owners or officers; (b) Merchant has power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law, or conflict with any other agreement to which Merchant is subject; (c) Merchant holds all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (d) there is no action, suit or proceeding at law or in equity now pending or to Merchant's knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (e) each Sales Draft presented to ReThink for collection is genuine and is not the result of any fraudulent or prohibited Transaction or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement; (f) each Sales Draft is the result of a bona fide Card Transaction for the legal purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Sales Draft; (g) Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby; (h) Subject to Section 5 of this Appendix A, Merchant has complied with ReThink's procedures for accepting Cards, and the Card Transaction itself does not involve any element of credit for any other purposes other than as set forth in this Agreement, and is not subject to any defense, dispute, offset or counterclaim which may be raised by any Cardholder under the Card Associations' rules, the Consumer Credit Protection Act (15 USC §1601) or other relevant state or federal statutes or regulations; and (i) any Credit Voucher which it issues represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted by ReThink.
19. Acceptance : ReThink will accept from Merchant all Sales Drafts deposited by Merchant under the terms of this Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts. Merchant must transmit Sales Drafts and Credit Vouchers to ReThink or its processing vendor on the same or next business day immediately following the day that such Sales Drafts and Credit Vouchers have been originated. All presentment and assignment of Sales Drafts, collection thereof and reassignment or rejection of such Sales Drafts are subject to the terms of this Agreement and regulations of the Card Association. ReThink will only provisionally credit the value of collected Sales Drafts to Merchant's Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks (actual and anticipated), fees, penalties, late submission charges, reserve deposits, negative Sales Draft batch deposits and items for which ReThink did not receive final payment.
20. Endorsement : By presenting Sales Drafts to ReThink for collection and payment, Merchant agrees to sell and assign all its right, title and interest in each Sales Draft completed in conformity with ReThink's acceptance procedures and constitutes an endorsement by Merchant to ReThink of such Sales Drafts. ReThink may supply such endorsement on Merchant's behalf.
21. Prohibited Payments : ReThink may receive payment of any Sales Draft presented by Merchant and paid by ReThink unless and until there is a Chargeback. Unless specifically authorized in writing by ReThink, Merchant may not collect or attempt to collect any Sales Draft, including Chargebacks, and will hold in trust for ReThink and promptly deliver in kind to ReThink any payment Merchant receives, in whole or in part, of the amount of any accepted Transaction, together with the Cardholder's name and account number and any correspondence accompanying payment.
22. Chargebacks : Merchant will accept for chargeback any sale for which the Cardholder disputes the validity of the sale according to prevailing Card Association regulations, or a Card issuer or ReThink determines that Merchant has in any way failed to comply with Card Association regulations or ReThink's procedures in accepting a Card and presenting the resulting Sales Draft to ReThink for purchase. ReThink may charge back the amount of a Card sale for which the Cardholder disputes authorizing the charge. Merchant may not initiate a sale Transaction in an attempt to collect a Chargeback. Merchant will pay the current published fees for each Chargeback as listed on the Merchant Form. ReThink will send Merchant any requests received from Card Associations or issuing banks resulting from Merchant’s transactions (“Retrieval Request”) if the ReThink cannot satisfy the inquiry with the information retained by ReThink concerning any Card sale. In response to the Retrieval Request, Merchant must provide by certified or overnight mail or by confirmed fax or scanned documents (or by other means as agreed by ReThink) the results of Merchant’s investigation of such Retrieval Requests and include legible copies of any documentation required by the Retrieval Request within seven (7) business days after the ReThink dispatched the Retrieval Request to Merchant (or such shorter time as the Card Association rules may require and of which Merchant will be notified). Merchant acknowledges that failure to fulfill a Retrieval Request in accordance with Card Association rules may result in an irreversible Chargeback. Merchant has full liability if any Sales Data for which ReThink has given Merchant’s account provisional credit is the subject of a chargeback. Merchant may be allowed to resubmit applicable sales data for a second presentation of a response to a chargeback in accordance with the Card Association rules. To the extent that ReThink has paid or may be called upon to pay a Chargeback or refund/adjustment for or on account of a Cardholder and Merchant does not reimburse ReThink as provided in this Agreement, then for the purpose of ReThink obtaining reimbursement of such sums paid or anticipated to be paid, ReThink will have all of the rights and remedies of such Cardholder under applicable federal, provincial or local law and Merchant authorizes ReThink to assert any and all such claims in ReThink own name for and on behalf of any such Cardholder customer individually or all such Cardholder customers as a class.
23. Chargeback Reserve Account : Notwithstanding anything to the contrary in this Agreement, ReThink may establish a non-interest-bearing chargeback reserve account (the “Reserve Account”) or demand other security in an effort to prevent the scenario of unpaid Chargebacks. This account may be established at any time or for any reason if, in ReThink’s reasonable consideration, ReThink suspects Merchant’s transaction processing history is or perhaps will create liabilities for refunds, chargeback reimbursements or Card Association fines that will be owed to ReThink by Merchant and the ReThink determines, in its sole but reasonable consideration, such obligations may not be collectible from Merchant in a timely manner without such Reserve Account being established or the amounts within the Reserve Account increased. Specific examples of conditions that might prompt the ReThink to establish or increase the balances in a Reserve Account might include, but will not be limited to: (a) Merchant engaging in any charge processing that creates an overcharge to a Cardholder by duplicating charges; (b) Merchant engaging in any activity designed by Merchant to circumvent a “call center” message when attempting to process a transaction; (c) Merchant breaching this Agreement, violating any representation, covenant or warranty herein, or violating any applicable Card Association rule or applicable law; (d) Merchant’s Application is in any way inaccurate or becomes inaccurate subsequent to ReThink’s approval of the Application; (e) Merchant changes its type of business without ReThink’s prior written approval; (f) fraud, Merchant processes an unauthorized charge, or other action that violates ReThink’s applicable risk management standards or is likely to cause a loss; (g) Merchant has Chargebacks exceeding a percentage of total transactions, total settlement amounts that could exceed the limits for chargeback or fraud transactions permitted by the Card Associations or as such limits as are established by ReThink in any period (h) creating an excessive numbers of requests from consumers or card issuing banks to retrieve documentation; (i) Merchant’s financial stability is in question or Merchant ceases doing business; or (j) Merchant terminating this Agreement for any reason. Once the Reserve Account is established, collected funds will be placed in the Reserve Account. Before releasing funds after this Agreement is terminated, Merchant will pay any outstanding charges, losses or amounts, and Chargebacks for which Merchant owes. Further, ReThink may require Merchant to deposit additional amounts based upon Merchant's processing history and/or anticipated risk of loss to ReThink into the Reserve Account. Once established, unless ReThink determines otherwise at its sole discretion, the Reserve Account will remain in place for 180 days and a reasonable period thereafter, during which Cardholder disputes may remain valid under applicable Card Association rules. The provisions of this Agreement relating to account debits and credits apply to the Reserve Account and survive this Agreement’s termination until ReThink terminates the Reserve Account. Any balance remaining after chargeback rights have expired and all of ReThink’s other expenses, attorney fees used in collections, losses and damages have been paid will be disbursed to Merchant.
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