Terms & Conditions
Revision Date: 10/13/2022
1. Definitions. Capitalized terms used in this Agreement will have the meanings set forth in Appendix A (Definitions) if not otherwise defined.
2. Scope of Agreement. The Agreement governs Client’s receipt and use of the Services in the United States. If Client pays all applicable fees when due, Certegy will provide Client with: (i) access to and use of the Service in accordance with these General Terms and the then-current standard user operating instructions and requirements for each selected Service, as made available to Client in writing from time to time (the “Specifications”), and (ii) upon request, standard reporting, if any, associated with use of the Services. Client will comply with the terms of this Agreement and the Specifications. As used herein, “Agreement” includes these General Terms, the Certegy Master Services Agreement, and any other agreement which expressly reference these General Terms.
3. Commencement. Each party will dedicate sufficient resources, including the assignment of adequate personnel, to commence the Service as soon as practical following the Effective Date. Certegy may postpone implementation of the Service if Client fails to timely provide required information, or a circumstance arises that might jeopardize timely processing of Transactions for other clients of Certegy.
4.1. Client will follow the authorization requirements applicable to the selected Service, each as set forth in the Service-Specific Terms.
4.2. To request an authorization for a Transaction, Client will send to Certegy, using the correct Certegy-assigned station number, the applicable Transaction Data. Upon receipt of the Transaction Data, Certegy will process Client’s authorization request and will send a message to Client indicating if the Transaction information is or is not authorized (and is or is not eligible for ACH processing, as applicable). Certegy may decline a Transaction for reasons other than derogatory information relating to the Consumer (e.g., risk management controls). Accordingly, Client must exercise its own judgment in determining whether or not to proceed with the transaction and should draw no conclusions regarding the identity or creditworthiness of the Consumer based on Certegy’s response. Certegy disclaims all liability and responsibility for Client’s assessment of any service charges on dishonored Transactions.
4.3. If a Transaction request is not authorized by Certegy and Client determines that it will not otherwise accept the Transaction, Client must politely notify the Consumer of this fact and provide a Certegy-approved decline notice that gives the disclosures required under the FCRA and instructs the Consumer on how to contact Certegy directly.
5. Warranty Coverage. The terms of this Section will apply if Client has selected any warranty services.
5.1. An authorized Transaction will be eligible for warranty coverage under this Agreement when presented for payment if:
(a) the Transaction was authorized by Certegy based upon information accurately provided by Client, and the Transaction is not presented as a consequence of fraudulent activity by Client or its agents;
(b) the Transaction is payable exclusively to Client, is authorized, processed, assigned and endorsed in accordance with the terms of this Agreement, and is not otherwise excluded from authorization or warranty coverage;
(c) the Transaction is not deemed “non-negotiable” by the applicable Institution (e.g., not honored due to missing or incomplete signatures or other information and including, but not limited to, restrictions on the Transaction amount or date);
(d) the Consumer does not “stop payment” on the Transaction;
(e) if the Transaction was for goods, the goods must not be returned or repossessed, and if the Transaction was for services, the services must be fully performed;
(f) all notices were posted in compliance with Section 10.5; and
(g) all required notices were provided to the Consumer in compliance with the Agreement.
(h) If such Transaction is with respect to a Check:
(i) Client maintains and enforces a Check Policy and did not redeposit the Check after its initial dishonor;
(ii) the Check meets the requirements of both Paragraph 6(a) and (b) of the Check Warranty terms below; and
(iii) the Check is deposited within five (5) business days of the date Client requested authorization.
(i) if the Transaction involves a Check substituted by an Image Replacement Document (the substitute check standard recognized by the Federal Reserve), the substitute Check meets industry quality standards, including a legible name and address of the Consumer.
All information required to be written on the Check by Client may be “franked” by Client’s point-of-sale terminals. The term “franked” refers to the imprinting on the back of the check by the register information such as the merchant, store number, approval date, identification and other similar information.
5.2. If a Transaction that complies with Sections 5.1(a) – (i) is not honored by the Institution, Certegy will pay Client, on behalf of the Consumer, the face amount of the Transaction (which face amount will not exceed the Warranty Claim Limit) upon receipt of the Warranty Claim documents. Required Warranty Claim Documents postmarked more than sixty (60) days from the Check date will be ineligible for this warranty coverage. If Warranty Claim Documents are forwarded to Certegy by someone other than Client, Client will remain responsible for compliance with all terms of the Agreement. Client will be responsible for replacing any required documentation if it is lost, stolen or misplaced.
5.3. Payment of approved Warranty Claims will be paid by an ACH transfer into the Account designated by Client, subject to Client authorizing, and Certegy receiving, ACH payment under Section 6. Client will sign appropriate forms authorizing those ACH transfers into its Account by Certegy.
5.4. Notification of Payment and Return of Goods. Client will notify Certegy’s Merchant Accounting Department immediately by telephone, with the Consumer’s identity, of: (i) any payment received on dishonored Transaction that has been submitted to Certegy as a Warranty Claim; and (ii) any goods returned by a Consumer where the Consumer paid for the goods with a dishonored Transaction that was submitted as a Warranty Claim. This notification will be accomplished by transmitting to Certegy, by any mutually agreeable method, the applicable authorization number, Transaction amount, the amount of payment, and the Consumer’s full name. Client will comply with Certegy’s instructions for processing such payment or return of goods. When a Consumer of a dishonored Transaction claims to have paid Client directly, claims to have returned the goods to Client, or disputes the delivery of the products or services for which the Transaction was tendered, Client will respond to any reasonable request for information reasonably to verify the status of a Warranty Claim within ten (10) days of receipt. If Client confirms the Consumer’s claims or fails to respond to the request, Certegy may treat that Warranty Claim as paid in full by the Consumer and, at Certegy’s election, offset or recoup any amount Certegy paid to Client from any amount owed Client.
6. Fees and Taxes; Settlement.
6.1. Payment Account. Client authorizes Certegy to electronically collect all amounts owed under this Agreement via a monthly ACH transfer, pursuant to the rules of NACHA, from Client’s Account. Client will provide Certegy with written notice of any change in the Account information within three (3) business days of the date of the change. This authorization will survive the termination of the Agreement for twenty (20) days.
6.2. Payment Terms. All fees that are not designated for net settlement on the Certegy Master Services Agreement will be billed for each calendar month (or portion thereof) beginning on the Commencement Date and will be due within thirty (30) days of the statement date. If an ACH transfer attempt fails, or the parties have agreed on a different payment method for such month, then Client will pay Certegy all fees owed within thirty (30) days of the applicable billing statement date. Client will pay Certegy a $25.00 fee per invoice statement during any month that Client’s fees are not collected via an ACH transfer. In addition, if any payment requested by Certegy is returned due to insufficient or uncollected funds, Certegy may collect a service charge, including a one-time EFT or bank draft drawn from Client’s Account, equal to the lesser of twenty-five dollars ($25.00) or the maximum amount allowed by law. If Certegy submits its statements to Client as an invoice via a web-based or other electronic accounts payable system, Client will also pay Certegy a facilitation fee of $30.00 per month. For any amount not paid within thirty (30) days after its due date, Client will pay a late fee equal to the lesser of one and one-half percent (1½%) per month of the unpaid amount or the maximum interest rate allowed by law.
6.3. Billing Adjustments. All statements, invoices and reports will be considered final, and Certegy will not be responsible for correcting any billing errors, if Certegy has not received from Client written notice of any disputed item within ninety (90) days of the statement date.
6.4. Taxes. Client will be liable for any taxes or similar charges arising out of the Agreement, including all applicable customs, duties, sales taxes, use taxes, value-added taxes, excise charges, or brokerage fees, but excluding Certegy’s property and income taxes. Client will also be responsible for assessing and remitting payment for any such items to the appropriate authorities as may be required by law.
6.5. Re-Certification and Maintenance Services. After the initial set-up and certification required by Client’s point-of-sale system at the current Location(s), Certegy will, as applicable, charge its then-current time and material rates for any Maintenance Services requested by Client. If Client engages Certegy to provide Client with other services or technical work in addition to or outside the scope of the Services, including the Maintenance Services, Certegy will charge its then-current rates in accordance with the terms of a separate agreement. As used in this subsection, “Maintenance Services” means (a) service re-certification (with or without code changes) or service conversion; (b) data center move; (c) IP address changes; (d) disaster recovery testing and set-up; and (e) test system access after certification is complete.
6.6. Offset/Recoupment. In addition to any other remedies at Law or in equity to which it is entitled, or as set forth in these General Terms, Certegy may offset or recoup the amount of any erroneous payments to Client or other amounts due Certegy against or from any amounts owed Client, or at its election, obtain reimbursement from Client on demand. Certegy will at all times be entitled to suspend payment of amounts due Client to determine the amount subject to any offset or recoupment.
6.7. Settlement Payments. In connection with any settlement services chosen by Client under this Agreement, Certegy will create ACH transfer files for all Transaction order confirmations submitted by Client and originate ACH debit or credit transfers based upon the files provided to Certegy on a daily basis. Certegy will fund Transactions each banking day to Client’s Account upon receipt and settlement of the associated ACH transfers (actual posting depends upon the Client’s financial institution’s policies regarding ACH transfers). Returned debit Transactions that have been previously credited by Certegy to Client’s Account will be debited from Client’s Account. Client will provide Certegy with voided check(s) or other documentation acceptable to Certegy identifying the Account Client wants to use for crediting payments processed by Certegy and debiting returned items if such account is different than the designated settlement Account. Client will notify Certegy in writing of any change in Account information within three (3) days of occurrence.
7. Changes to Services. Certegy may change any features, functions, brand, third-party provider, or attributes of a Service, or any element of its systems or processes, from time to time, provided that such changes do not have a material adverse impact on the performance or cost of the Service. Client will not rely on identification of specific brands associated with or names of third-party providers of a Service as an obligation of Certegy to use any particular brand or third-party provider. If Client requests a change to a Service, then the parties will negotiate the terms for such change pursuant to a statement of work or other document signed by the parties.
8. Problem Reporting and Resolution. Client will timely report any problems encountered with the Service. Certegy will use commercially reasonable efforts to either resolve each problem or provide Client with information to enable Client’s personnel to resolve it.
9. Use of Services; Feedback. Client will not: (i) sell or otherwise provide, directly or indirectly, any Service or any portion thereof to any third party; or (ii) either directly or indirectly, for itself or through any agent or third party, compile, store, maintain, or use any Services or Data provided by Certegy through the Services to build its own database or otherwise copy or reproduce the Service. Client agrees that Certegy may use all suggestions for improvement and comments regarding any Service that are furnished by Client to Certegy in connection with this Agreement, without accounting or reservation.
10.1. General. Certegy and Client will comply with all Applicable Laws applicable to the selected Services.
10.2. Credentialing. Prior to the Commencement Date, and during the term of this Agreement, Client will fully cooperate with Certegy and respond to its requests for information in order to comply with Certegy’s credentialing (e.g., know your customer/AML due diligence) policy. If Client does not receive credentialing approval, Certegy may terminate this Agreement on written notice with immediate effect at any time (and without compensation to Client).
10.3. FCRA Notices. Client authorizes Certegy to provide regulatory notices and disclosures, including the FCRA Notices, to Client at the email address provided by Client on Page 1 of this Agreement. Client hereby acknowledges receipt of the FCRA Notices. Client certifies that it has a legitimate business need for the information in connection with a business transaction that is initiated by the Consumer within the meaning of Section 604(a)(3)(F) of the FCRA, and further certifies it will use the information for no other purpose.
10.4. Operational Guidelines. Certegy may from time to time establish rules, regulations, and operational guidelines with respect to use of the Services by Client, and such rules and regulations and guidelines will be binding upon Client thirty (30) days after receipt thereof by Client; provided, however, that such rules, regulations, and guidelines will apply to substantially all of Certegy’s clients and will not discriminate against Client.
10.5. Notices Required To Be Displayed At Point-Of-Sale. Client will display the appropriate notices at the point-of-sale at each of its Locations, as well as in any catalogs or mail-order forms, so that they are clearly visible to all Consumers, including (i) any notice that is required by applicable law and ACH rules; (ii) a service charge notice that applies to all dishonored Transactions; and (iii) any notice supplied to Client by Certegy, provided that (a) any notices created by Certegy and received by Client are deemed samples only, (b) Client will obtain the advice of its own legal counsel prior to using those notices, and (c) Certegy will have no liability regarding Client’s use, or non-use, of those notices. If Client fails to display the most current form of notice, Client will reimburse for any amounts Certegy is unable to collect, or incurs, as a result of that failure.
11. Confidentiality. Client will treat as strictly confidential all data and information, regardless of the form or media, relating to the business of the Certegy of which the Client becomes aware in connection with the performance of its obligations under this Agreement (other than information that was public at the time Client becomes aware), whether disclosed in writing, orally, or visually, in tangible or intangible form, and including the terms and conditions of this Agreement (including the Rates) (collectively, “Confidential Information”). In handling any Confidential Information, Client will: (i) exercise at least the same degree of care that it exercises for its own proprietary or confidential information, but in no event less than reasonable care; (ii) restrict disclosure of Confidential Information solely to its employees, contractors, or agents with a need to know such Information; (iii) advise such persons of their obligations hereunder as to such Information; and (iv) ensure that such persons are bound by obligations of confidentiality no less stringent than those imposed in this Agreement. Certegy and Client each acknowledge and agree that when requested by a federal regulatory agency with oversight and supervisory authority over either party, this Agreement and any information related to this Agreement may be disclosed by either party such regulatory agency without prior notice to the other party and without disclosure to the other party of the request. Client will use Confidential Information only as necessary for the performance of its obligations under the Agreement. Upon termination of the Agreement, Client will, at Certegy’s option, either promptly destroy or return to Certegy all Confidential Information. Client will sign, upon request, a Certegy-supplied certification attesting to Client’s compliance with this Section.
12.1. Client will be solely responsible for the transmission of any information, data, records, or documents (collectively, “Data”) necessary for Certegy to perform a Service at Client’s expense and will bear any risk of loss resulting from that transmission until Certegy confirms receipt. Certegy will bear the risk of loss resulting from Data transmitted to Client until Client confirms receipt. If Client directs Certegy to disclose Data to a third party, Client will provide Certegy with written authorization to do so and bear any risk of loss or liability associated with that disclosure. In addition, Certegy will be held harmless from any claim resulting from the third party’s use of that Data, and may, in its discretion, require the third party to enter into a written agreement with Certegy governing disclosure of that Data.
12.2. Client will promptly notify Certegy if Client discovers any mistakes, omissions, errors, viruses, or other defects in Data covered by this Agreement. Certegy will not be responsible for the accuracy, completeness, or authenticity of any Data furnished by Client or a third party. If any Data submitted by Client or a third party to Certegy is incorrect, incomplete, or not in the required format, Certegy may require Client to resubmit the Data or Certegy may correct the Data and bill Client its then current rates for performing those corrections. Certegy will attempt to notify Client prior to Client incurring such expense.
13. Audit. Certegy will have the right, upon at least five (5) business days’ prior written notice, to visit Client’s facilities, during normal business hours, and review relevant books and records, for the purpose of inspecting and determining compliance with the terms of this Agreement. All audits will be reasonable in scope and duration.
14. Proprietary Rights. Any intellectual property rights that existed prior to the Effective Date will belong solely to the party owning them at that time. Neither party will be entitled to any copyright, trademark, trade name, trade secret, or patent of the other party. As between Certegy and Client, Certegy retains all right, title, and interest in and to the Services and all intellectual property rights therein.
15. Representations and Disclaimers
15.1. Mutual Representations. Each party represents to the other the following as of the Effective Date:
(a) Organization. Such party is an entity validly existing and duly organized under the laws of the jurisdiction in which it was formed with all authority, qualifications, licenses, and registrations necessary to conduct its business, in all jurisdictions where it conducts business, in compliance with all Applicable Law.
(b) Authority and Power. Such party has the power to execute and perform this Agreement. The person executing this Agreement is duly authorized to bind such party to all provisions of this Agreement and such person is authorized to execute any document and to take any action on such party’s behalf which may be required to carry out this Agreement. Further, the signing and performing in accordance with this Agreement will not violate any Applicable Law or conflict with any other agreement to which such party is subject.
(c) No Litigation. There is no action, suit, or proceeding pending or, to such party’s knowledge, threatened, which if decided adversely would impair such party’s ability to carry on its business substantially as now conducted or which would materially and adversely affect such party’s financial condition or operations.
15.2. Client Representations. Client represents to Certegy the following as of the Effective Date:
(a) True and Complete Information. All written information provided to Certegy is true and complete and properly reflects the business, financial condition, and ownership of Client, in each case in all material respects.
(b) Business Use. Client is obtaining and using the Services only for its own lawful, internal business purposes.
15.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, CERTEGY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, OR STATUTORY) WITH RESPECT TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, PERFORMANCE, DESIGN, NONINFRINGEMENT, CONTINUOUS USE, OR ERROR FREE OPERATION, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING.
16. Termination and Suspension.
16.1. Termination for Convenience. Client may terminate the Agreement at any time with thirty (30) days’ prior written notice; provided, that if Client terminates prior to the end of the current term, except as otherwise permitted hereunder, Certegy will be entitled to (i) immediate payment by Client of all fees earned but not paid prior to the date of termination and (ii) liquidated damages in an amount equal to (a) the average monthly total aggregate fees and charges payable by Client to Certegy during the term prior to such termination, multiplied by (b) the number of months remaining in the current term, rounded up to the nearest integer (the “Liquidated Damages”). The parties agree that the Liquidated Damages constitute a reasonable estimate of the loss to Certegy in the event of such termination for convenience and will not be construed as a penalty.
16.2. Termination for Cause. A party may terminate this Agreement upon written notice if the other party (i) fails to cure a material breach within thirty (30) days of receiving written notice to do so; (ii) is the subject of a dissolution, reorganization, insolvency, or bankruptcy action that is not dismissed within forty-five (45) days of being filed; (iii) suffers the appointment of a receiver, conservator or trustee; (iv) commits any act related to the Service with the intent to defraud the other party; or (v) discontinues performance under this Agreement because of a binding order of a court or regulatory body (each, an “Event of Default”). If Certegy terminates pursuant to this Section prior to the end of the current term, Certegy will be entitled to Liquidated Damages.
16.3. Termination for Assignment. Certegy will have the termination right set forth in Section 19.4(a) (Assignment).
16.4. Suspension. Certegy may suspend the Services or terminate this Agreement or an Addendum if Client: (a) fails to maintain required balances in any Account and fails to remedy that deficiency within forty-eight (48) hours of Certegy’s request, (b) undergoes an Event of Default, or (c) fails to cure any material violation of Applicable Law within thirty (30) days of Certegy’s request.
17.1. Indemnities. Each party will indemnify and defend the other party and their officers, agents and employees from all losses, damages, liabilities, fines, judgements, and expenses (including all reasonable attorneys’ fees) (collectively, “Losses”) in connection with claims, actions, demands, or proceedings (made or threatened) brought by a third-party (“Claims”) resulting from, arising out of, or incurred in connection with the indemnifying party’s: (a) gross negligence, willful misconduct, or fraud; (b) failure to comply with Applicable Law; or (c) failure to comply with the terms of this Agreement. A party will not be liable to the other party under this Section to the comparative extent that claims result from the other party’s negligence or willful acts.
17.2. Procedure. The indemnified party will (a) provide the indemnifying party with prompt written notice of claims, (b) permit the indemnifying party to answer and defend claims, and (c) provide such assistance in connection with the defense and settlement of the claim as the indemnifying party may reasonably request, at the indemnifying party’s expense. The indemnifying party will not enter into any settlement that imposes any liability or obligation on the indemnified party, or acknowledges fault or wrongdoing, without the indemnified party’s prior written consent. The indemnified party may join in the defense at its own expense and with its own counsel.
18. Limitation of Liability.
18.1. General Limitation. CERTEGY’S TOTAL LIABILITY FOR A SERVICE IS LIMITED IN ALL CASES AND IN THE AGGREGATE TO THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT FOR THE CORRESPONDING SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE FIRST CLAIM. NOTWITHSTANDING THE FOREGOING, CERTEGY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, DELAY, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF CERTEGY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In addition, Certegy will not be liable for any Losses unless Client provides written notice to Certegy of the event that gave rise to the alleged liability within thirty (30) days of Client’s knowledge of the occurrence. No action arising out of the Agreement, or the Services, may be brought by Client more than one (1) year after the occurrence of the event that gave rise to the action.
18.2. Disclaimer of Liability for Certain Losses. Notwithstanding anything to the contrary contained in Section 18.1 above, under no circumstances will Certegy be liable for any Losses to the extent caused, directly or indirectly by: (i) Client; (ii) a third party, other than Certegy’s authorized agents; (iii) use of attachments, features, or devices not authorized by the Specifications; (iv) improper or inadequate conditions at a non-Certegy site; (v) improper or incomplete installation not caused by Certegy or its authorized agents; (vi) equipment changes, reconfigurations, upgrades or relocations performed by anyone other than Certegy or its authorized agents; (vii) abuse, misuse, alteration, or use that is inconsistent with the terms of this Agreement or Specifications; (viii) incorrect or incomplete Data supplied by Client or its agents; (ix) software, hardware, or systems not supplied by Certegy; or (x) a failure that is not directly attributable to Certegy or under Certegy’s direct control. In the event of any error by Certegy in processing any Data or preparing any report or file hereunder, Certegy’s sole obligation will be to correct the error by reprocessing the affected Data or preparing and issuing a new file or report at no additional cost to Client; provided, however, Certegy’s obligation is contingent upon Client notifying Certegy of the error within two (2) business days or two (2) processing cycles after Client receives the improperly processed Data, report or file.
19.1. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any provision. Each provision is to be construed as if the parties drafted it jointly and will not be construed more strongly against either party. The word “day” will mean “calendar day”, unless specifically stated otherwise. The Agreement will not be construed more strongly against either party regardless of who is more responsible for its preparation.
19.2. Entire Agreement; Modification. This Agreement together with any attachments, constitute the entire agreement between the parties with respect to its subject matter. All prior agreements, understandings, and representations regarding the same or similar services are superseded in their entirety. No purchase order or other form of the Client will modify, supplement, or supersede the terms of the Agreement. Certegy may amend the terms and conditions of this Agreement, including the General Terms, rates, and fees, by providing Client written notice thereof, and such amendments will be effective thirty (30) days from the date notice is mailed or otherwise distributed to Client.
19.3. Independent Contractors. Certegy and Client are independent contractors and neither Certegy nor any of its representatives are an employee, partner, or joint venturer of Client. The Agreement has been entered into solely for the benefit of the parties to this Agreement and is not intended to create an interest in any third party except where explicitly stated otherwise.
19.4. Subrogation and Assignment.
(a) Assignment of this Agreement. If Client assigns, subrogates, or transfers any interest, obligation or right arising out of this Agreement without prior written consent from Certegy, Certegy may immediately terminate the agreement. Any dissolution, consolidation, merger, transfer, or reorganization of a majority of the assets or stock of Client will constitute an assignment. Subject to the foregoing, the terms of this Agreement will be binding upon and inure to the benefit of permitted successors and assigns.
(b) Subrogation and Assignment of Warranty Claims. Client is authorized to negotiate and be paid for Transactions it receives in the ordinary course of its business unless otherwise instructed in writing by Certegy following an Event of Default. Client’s submission of a Warranty Claim and Certegy’s approval of such Warranty Claim will be deemed an immediate assignment and subrogation by Client of all right, title, and interest in the corresponding Transaction to Certegy and a relinquishment of all rights to the Transactions assigned to Certegy. Client will: (i) do whatever is necessary to secure Certegy’s right, title, and interest in such Transactions; (ii) cooperate with Certegy in its confirmation of such right, title, and interest; (iii) do nothing to prejudice such right, title, or interest; and (iv) do nothing to impair Certegy’s ability to collect those Transactions. In its capacity as assignee or subrogee, Certegy is authorized to collect authorized Transactions in its own name and on its own account. Client irrevocably authorizes and appoints Certegy as its attorney-in-fact to: (i) prepare, execute, and file statements, notices to financial institutions and other papers which Certegy deems appropriate to acknowledge, confirm or perfect its rights and interest in authorized Transactions; (ii) sign any law enforcement reports, affidavits, or other papers which are necessary to prosecute Consumers; (iii) collect returned Transactions, together with service charges and permissible damages; and (iv) claim any deductions or refunds of any bad debt losses charged off by Certegy for all periods permitted under Applicable Law. Client relinquishes all rights to a claim for such deductions or refunds and agrees to furnish all documentation to support the deductions or refunds claimed. Both parties acknowledge that a state or federal agency may disclose relevant information to parties involved in order to support and confirm any deductions or refunds claimed. Client will, upon request, reasonably cooperate with and assist in collection efforts and the prosecution of Consumers, including making its employees and agents reasonably available to testify.
19.5. Third-Party Contractors. Certegy may use third-party contractors in connection with the performance of its obligations under this Agreement and will be responsible for their actions with respect to those obligations. Certegy has no responsibility for and will have no liability to Client in connection with, any hardware, software, or services Client receives subject to a direct agreement (including any sale, warranty or end-user license agreement) between Client and a third party (and such third party will not be considered a third-party contractor of Certegy).
19.6. Governing Law and Venue; Remedies. This Agreement will be governed by the laws of the state of Florida, without regard to its conflict of law rules. Venue for any action arising out of the Agreement will be exclusively in a federal or state court of competent jurisdiction in Pinellas County, Florida. The prevailing party in any such action will be entitled to the recovery of its reasonable attorney’s fees, costs, and expenses. THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO LITIGATION ARISING OUT OF THE AGREEMENT. Client acknowledges that a breach of any of the terms of the Agreement will cause irreparable harm to Certegy for which it cannot be completely and adequately compensated by money damages alone; therefore, Certegy will, without the necessity of proving actual damages or posting a bond or other security, be entitled to equitable relief, including an injunction and specific performance, in addition to any other remedies available at law.
19.7. Exclusivity. Client agrees that Certegy will be Client’s sole and exclusive provider of each Service.
19.8. Notices. All notices, including billing statements, given in connection with this Agreement must be in writing and will be deemed received seventy-two (72) hours after deposit in the first-class United States mail, postage prepaid, or if given by other means, upon actual receipt. Notices must be delivered to the appropriate party at its address (including email) set forth in the Agreement or, in the alternative, in the case of notice to Client, to the same address its statements are sent. Notices to Certegy must include a copy (which will not constitute notice) to the General Counsel at the same address.
19.9. Insolvency. If Client experiences any voluntary or involuntary insolvency, bankruptcy, receivership, dissolution, reorganization, or other similar proceeding, Client consents to the immediate and absolute lifting of any stay as to the enforcement of remedies under this Agreement, including any stay imposed by the United States Federal Bankruptcy Code.
19.10. Telephone Communications. Client authorizes Certegy to monitor and record customer service telephone conversations for quality assurance and training purposes without further notice of disclosure, subject to Applicable Law.
19.11. Advertising. Certegy may identify Client as a user of the Services in its marketing materials. Whenever reasonably possible, Client will display Certegy’s trade name or logo in the form provided by Certegy with equal prominence in any Client advertising that displays trade names or logos of any other payment mediums accepted by Client.
19.12. Severability. If any provision of this Agreement is found to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
19.13. Waiver. No course of dealing or failure to strictly enforce any provision of this Agreement will be construed as a waiver of such provision for any party’s rights. Waiver by a party of any default by the other party will not be deemed a waiver of any other default. All waivers requested by a party must be signed by the waiving party.
19.14. Force Majeure. Certegy will not be liable for performing its obligations, or for Losses related to a failure to perform, to the extent its obligations are prevented or delayed due to causes beyond its reasonable control, including earthquake, war, fire, flood, weather, epidemic, power failure, strike, riot, telecommunication failure, the failure or closure of a financial institution, and acts of God.
19.15. Survival. All of the obligations of each party that by their nature should survive termination or expiration of this Agreement in order to achieve its purposes, including Articles 11, 17, 18, and 19, will survive and remain binding upon and for the benefit of the parties.
19.16. Counterparts; Electronic Delivery. The Agreement may be signed in one or more counterparts, each of which will constitute an original and all of which, taken together, will constitute one and the same agreement. Signed counterparts delivered by fax or electronic means (e.g., signed .pdf documents via e-mail, DocuSign) will constitute originals.
Appendix A – Definitions
“Account” means financial institution account identified by Client for ACH processing and settlement.
“ACH” means Automated Clearing House, the funds transfer system governed by the rules of the National Automated Clearing House Association that enables financial institutions to electronically clear interbank entries.
“Applicable Law” means all applicable local, state, and federal statutes, regulations, ordinances, rules, codes, orders, or other binding laws in effect from time to time to which a party may be subject or under which a party may exercise rights.
“Certegy” has the meaning stated in the preamble.
“Check” means a check drawn on a United States or Canadian financial institution in U.S. dollars.
“Checkwriter” means a business or individual that presents a Check to Client for payment for goods or services.
“Check Policy” means Certegy’s Check acceptance requirements for authorization, as set forth in the “Check Warranty” service-specific terms.
“Client” has the meaning stated in the preamble.
“Commencement Date” means Client’s first production use of a Service.
“Consumer” means a customer of Client who elects to conduct a payment transaction with Client through a Transaction.
“Effective Date” has the meaning stated in the preamble.
“FCRA” means the Fair Credit Reporting Act, 15 USC § 1681 et seq, as amended.
“FCRA Notices” means: (1) Notices to Furnishers of Information; Obligations of Furnishers Under the FCRA; and (2) Notice to Users of Consumer Reports; Obligations of Users Under the FCRA.
“Institution” means any U.S. (or, with respect to Check Services, Canadian) domiciled financial institution.
“Services” means the Certegy services Client elects to enable pursuant to this Agreement.
“License Number” means the Consumer’s government issued driver’s license or identification card number together with the issuing state or province.
“Location(s)” means facilities or stores operated by Client that utilize the Services.
“MICR” means the magnetic ink character recognition number of the Check which is made up of the Institution’s transit and routing number and the Consumer’s account number.
“Rate” means the percentage rate applied to the amount of a Check or the flat monetary fee that is applied to each transaction when a Check is presented for authorization as part of Certegy’s fee calculation for the Services.
“Services” means the Services Client has elected to receive from Certegy pursuant to this Agreement.
“Specifications” has the meaning set forth in Section 2.
“Transaction” means where a Consumer’s payment to Client for the purchase of goods or services is made (a) by ACH transfer from the Consumer’s financial institution account, or (b) by Check.
“Transaction Data” means (1) the dollar amount of the Transaction, which must be the same dollar amount as the underlying purchase, (2) the merchant identification number, (3) the authorization information set forth on page 2 of the Certegy Master Services Agreement, (4) for ACH Transactions, the Consumer’s bank routing and account numbers, (5) for Check Transactions, the commercially imprinted and serialized Check number and magnetic ink character recognition (“MICR”) number, (6) for Bankpay/Buy Now, Pay later Transactions, the Consumer’s IP address and assigned token, and the credentialling indicator, (7) for internet orders, the Consumer’s IP address (if captured), and (8) for telephone or internet orders, all applicable shipping information.
“Warranty Claim” means a claim for warranty coverage submitted by Client to Certegy.
“Warranty Claim Documents” means any documentation which Certegy may reasonably request from Client to process a Warranty Claim, for example, the dishonored Check properly endorsed to Certegy and the completed Check submission form.
The provisions below will control over the General Terms solely with respect to the relevant enhancement or Service.
BANKPAY/BUY NOW, PAY LATER SERVICES.
1. For the purpose of these BankPay/Buy Now, Pay Later Services terms, “Service” will mean the ACH payment processing and associated risk management services via Certegy’s software development kit for its BankPay and Buy Now, Pay Later products (the “SDK”), through which Certegy assists Client with the origination and acceptance of payments from Institution accounts, where Client processes the purchases of goods and services by its Consumers via Client’s mobile application or other online payment portal (the “Application”), and Consumer’s payment to Client for such purchase is made by a ACH transfer. The ACH transfer must be drawn on Consumer’s Institution account in U.S. dollars and will be originated through Certegy.
2. License Grant. During the Term, Certegy hereby grants to Client a limited, non-exclusive, non-transferable license to use the SDK and its associated software, computer code, and other technological elements (the “Technology”) solely as necessary to develop and integrate the SDK with Client’s Application for the sole purpose of using the Service. Client acknowledges and agrees that all Technology provided by Certegy in connection with the Service (a) constitute Confidential Information under the General Terms; (b) are the property of Certegy or Certegy’s licensors; and (c) are protected by copyright, trademark, patent, or other proprietary rights and laws. Client will not reverse engineer, decompile or disassemble the Technology or any portion thereof, nor otherwise attempt to copy or duplicate the Technology or any portion thereof except as necessary to use the Service.
(a) a. To request enrollment authorization, Client will transmit to Certegy via the SDK, in accordance with the SDK specifications, using the correct Certegy-assigned station number: (i) the merchant identification number; (ii) bank routing and account numbers and account/check type; (iii) the Consumer’s telephone number, including area code; (iv) the Consumer’s email address; (v) the Consumer’s full name or company name; (vi) the credentialing indicator; (vii) the Consumer’s U.S. street address, including city, state, and zip code (optional); and (viii) the Consumer’s date of birth (optional) (collectively, the “Enrollment Data”).
(b) Upon receipt of the Enrollment Data, Certegy will process Client’s enrollment request. If the enrollment is approved, then Certegy will provide Client with the last four digits of Consumer’s account number for display purposes only and will continue the process of processing authorization for the Transaction in accordance with the SDK specifications. If the enrollment is not approved, then Certegy will provide Client with a corresponding response code.
(c) To request authorization for a Transaction, Client will transmit the applicable Transaction Data to Certegy via the SDK in accordance with the SDK specifications.
(d) When an ACH Transaction is authorized, Certegy will request an “order confirmation” from Client prior to the Transaction being initiated. After the order confirmation has been received, Certegy or Client’s Certegy-approved agent will originate/initiate the Transaction through one of the U.S. ACH networks. If this confirmation has not been received within seven (7) days of the authorization transmittal, then the authorization will no longer be valid.
4. Client Obligations.
(b) Client will obtain Consumer’s authorization of the ACH transfer in accordance with all applicable operating rules required by the NACHA and any regional ACH associations (collectively the “Rules”). Client will display or provide to each Consumer all notices required by the Rules, and the service charge, if applicable, that will be assessed to the Consumer for any dishonored or uncollected Transactions.
(c) Client will abide by all Laws and obligations governing the use of electronic fund transfer, including those set forth in the Rules and will accept any reversals or withdrawals from the Certegy payment account or Client’s settlement Account necessary to comply with the Rules.
(d) Certegy may request that Client modify the content of certain notices for legal compliance reasons at any time, and Client will implement all such modifications within ten (10) days of receiving a written request from Certegy to do so. In addition to its obligations in the General Terms, Client will indemnify and defend Certegy and its officers, agents, and employees against all Losses asserted by a third party resulting from, arising out of, or incurred in connection with Client’s failure in connection with the Services to (i) provide any required notices, (ii) obtain adequate Consumer permissions, or (ii) provide legally sufficient disclosures regarding use of Consumer personal information in connection with the Application or the Service.
(e) In the event of a dispute regarding a Transaction or a Consumer’s acceptance of the Client End User Agreement, Certegy may request from Client a copy of records relating to same, including, the Consumer authorization for the Transaction in question and commercially reasonable evidence of delivery to Consumer of the goods or services contained in the purchase order connected to the Transaction.
(f) If reasonably required by Certegy, Client will employ security services (e.g., integrity, authentication, and certificate management) to support payment and communication functions. Client will use its reasonable efforts to also employ such additional security standards, including firewalls, operating systems, and other appropriate hardware and communication techniques, necessary to prevent programs, extraneous code, viruses, hacking, or data theft from damaging or interfering with the use of the data, software, or Services of Certegy. Client will promptly notify Certegy if it discovers any mistakes, omissions, errors, viruses, or other defects and will promptly inform Certegy of: (i) the date of discovery; (ii) the method of transmission or causation; and (iii) any corrective actions taken by Client.
a. Except as set forth below, Client will exclusively request authorization from Certegy for all Checks drawn on Institutions presented by Consumers at any of Client’s Locations prior to the Consumers leaving the Location. Client may add Locations at any time; however, Locations may not be deleted unless Client completely discontinues business at the Location or the Location ceases accepting checks as payment tender. Certegy may modify its fees if Locations are added or deleted. Certegy makes no representation or warranty that it will be available to respond to every authorization request from Client, and Client should make alternative arrangements for times when the Services are unavailable.
b. If Certegy has indicated an Electronic Floor Limit amount on Page 1 of the Agreement, then Certegy will authorize the Check for the face amount of the Check up to the Electronic Floor Limit amount unless the Check is declined as a result of information in Certegy’s negative file.
c. If a Check is authorized, Client will record the applicable authorization number on the Check.
d. Client will not request authorization from Certegy for a Check that:
i. is a traveler’s check, money order, payroll check, cashier’s check, counter check, starter check (unless the Consumer’s name and address are legibly handwritten on the check), sight draft, is payable to “cash” or “bearer”, is exchanged in whole or part for cash, or is one of multiple Checks presented to Client as payment for a single Transaction;
ii. was previously denied authorization based upon the same or different information or was previously the subject of a referral message from Certegy; provided that Client may request authorization following a denial if the information was originally entered incorrectly;
iii. is given as a substitute for a Check previously presented, whether or not the previous Check was authorized by Certegy or is presented as a replacement Check following a decline, referral, or other message from Certegy regarding the same or related Transaction, even if for a different dollar amount;
iv. is presented for goods or services not concurrently provided, or where ownership is not concurrently conveyed to the Consumer, including any Check given for a gift certificate, lay-away, lease, rental, or other similar transaction, except that Client may request authorization of a Check for the last installment of a lay-away transaction when title and possession of the goods is provided to the Consumer at that time; or
v. has a face amount greater than the Warranty Claim Limit.
Without limiting any of its other obligations in this Agreement, Client agrees to use its best efforts to ensure that any Check submitted in connection with a Warranty Claim is a “negotiable instrument,” and that Certegy is a “holder in due course,” as such terms are defined in Article 3 of the Uniform Commercial Code and governing case law.
5. Any Check described in paragraph (d) above will be deemed unauthorized and ineligible for warranty coverage, even if an authorization number is obtained.
6. Client recognizes and agrees that in order for Certegy to (i) control losses due to dishonored checks and (ii) maintain the Rate, Client must maintain and enforce at all times a check acceptance policy which includes all of the following requirements (the “Check Policy”):
(a) the MICR number, Check number, and name of the Consumer will be commercially imprinted on the Check; and Consumer will not be an employee or agent of Client;
(b) the Consumer’s U.S. or Canadian street address and zip code will be either commercially imprinted or written on the Check at the time of authorization;
(c) the Check will be dated within one (1) day, and deposited within five (5) business days, of the date Client requested authorization, and Client will submit to Certegy all required Warranty Claim Documents so that they are postmarked no more than thirty (30) days from the Check date;
(d) the corresponding Certegy authorization number, and if required pursuant to agreement by the parties, the License Number of the Consumer, will be written on the Check at the time of authorization;
(e) the Check, by itself, or in combination with a form of payment other than another Check, will be received by Client as full payment in a current and final transaction involving the Consumer (if the Check was for goods, the goods must not be returned or repossessed, and if the Check was for services, the services must be fully performed);
(f) the Check will not contain erasures and will not be altered, unless the erasures or alterations were initialed by the Consumer at the time of authorization;
(g) Client will obtain authorization prior to having any knowledge of the closing of, or government-imposed restrictions on withdrawals from, the Institution; and
(h) the Consumer’s 10-digit telephone number, or, in the case of a Consumer with no telephone number, the words “No Phone,” will be either commercially imprinted or written on the Check at the time of authorization.
Client will maintain, enforce, and train its staff to comply with the Check Policy to ensure the requirements of this subsection 6.5 are followed.
7. Certegy will pay Client seventy percent (70%) of a Warranty Claim that qualifies for warranty coverage under this Agreement if the Check fails to include the information set forth in paragraph 6(h) above but otherwise adheres to the Check Policy. Client’s failure to maintain and enforce the Check Policy may result in an increased Rate.
ELECTRONIC CHECK SERVICES
1. “Electronic Check Services” are electronic check conversion services including the conversion of a Check into an electronic funds transfer (“EFT Check”). For purposes of the Electronic Check Services, the term “Check” as used in the Agreement will include an EFT Check.
2. Client authorizes Certegy to electronically credit or debit Client’s Account for purposes of (i) crediting those EFT Checks authorized by Certegy; or (ii) debiting those EFT Checks which are dishonored and do not otherwise qualify for coverage under the Agreement or this section. In addition to the fees set forth in the Agreement, Client will also pay twenty-five dollars ($25.00) for each manual adjustment of an EFT Check incorrectly sent to Certegy which has been transmitted by Certegy as an EFT Check.
3. Provided a Check meets the requirements set forth in paragraph 4 below, Client will request authorization as an EFT Check. The authorization provided by Certegy will instruct the Client whether to process the Check as an EFT Check or deposit the Check in paper form. A Check that is authorized by Certegy as an EFT Check may not be eligible for electronic debit via the ACH Network. If Client has chosen “with sight drafting,” then a Check that is authorized as an EFT Check, but is not processed electronically via an ACH debit, may be converted by Certegy to a sight draft or demand draft for deposit. The authorization provisions in the General Terms will continue to govern all Checks that do not qualify as an EFT Check.
4. To request authorization for an EFT Check, Client will only accept a Check that (a) has not been previously negotiated, (b) has not been previously voided, (c) contains a pre-printed serial number, and (d) does not contain an “auxiliary on-us” field in the MICR line (for business checks). Client will not attempt to convert a Check to an EFT Check if it: (i) is a third-party check, (ii) is a credit card check, line of credit check, or an investment check, (iii) is an obligation of a financial institution, e.g. cashier’s check, money order, traveler’s check, official check, (iv) is a check drawn on any government entity, (v) is a check payable in a medium other than United States currency, or (vi) contains an “auxiliary on-us” field in the MICR line (for business checks) and Client has chosen “without sight drafting.” Additionally, Client will not request authorization of an EFT Check in excess of twenty-five thousand dollars ($25,000) or any other type of check Certegy notifies Client is ineligible for authorization as an EFT Check. Any check described in this paragraph will be deemed unauthorized and ineligible for warranty coverage, even if authorization is obtained.
5. Following receipt of the message that the Check can be converted to an EFT Check, Certegy will send an approval message to Client, and Client will produce a receipt containing Certegy-approved authorization language (alternatively, the receipt may be produced in electronic form containing Certegy-approved authorization language). Client will instruct the Consumer to read and sign the authorization receipt (either the hard copy or electronically, provided that Client is able to reproduce the signature for Certegy upon request) (“Authorization Receipt”). Regardless of how the Consumer’s signature is captured, Client must (i) retain the original Authorization Receipt, and (ii) provide a copy of the Authorization Receipt to the Consumer. The Authorization Receipt must contain the following: (i) the Client’s name, (ii) Client’s and Certegy’s telephone number, (iii) date of transaction, (iv) the EFT Check amount, (v) the Check number, (vi) Client’s identifying number (or other unique number that identifies the location of the transaction), (vii) terminal city, and (viii) terminal state. All original Authorization Receipts must be retained by Client for at least 2 years and be made available to Certegy within five (5) business days of Certegy’s request. If the Consumer refuses to execute the Authorization Receipt, Client will follow Certegy’s instructions for terminating the EFT Check or seeking authorization of the Check for deposit in paper form.
6. Following authorization of an EFT Check, Certegy will instruct Client to return the Check to the Consumer. All Checks authorized by Certegy for conversion into an EFT Check must be stamped “void” and with additional wording pre-approved in writing by Certegy, to eliminate the possibility of a manual deposit. The stamp must be made on the center of the front of the Check so that it will not block the Consumer information or the MICR Number, and the Check must be returned to the Consumer. In no event should an EFT Check be deposited by Client into Client’s account. If an EFT Check is deposited into Client’s account, Client will, in addition to the remedies provided for in the Agreement, be responsible for all bank charges incurred by Client, Certegy or the Consumer, including without limitation, any NSF charges incurred by the Consumer. If Client is using imaging terminals to capture the image of the Check, Client will transmit all images captured on each business day to Certegy at the end of the business day in a format to be mutually agreed upon by the parties.
7. Warranty payments on Checks converted into an EFT Checks will be immediately reversed if Client fails to deliver to Certegy (i) the original Authorization Receipt; (ii) the images of the Checks (if applicable); or (iii) images of the Checks that are not legible (as determined by Certegy).
8. The parties agree to comply with all applicable laws and regulations, including without limitation the laws and regulations of federal, state, local governmental authorities, the National Automated Clearing House Association, and the Federal Reserve Regulation E (12 C.F.R. Part 205). Certegy may from time to time establish rules, regulations, and operational guidelines with respect to use of the electronic check conversion services by Client, and such rules and regulations and guidelines will be binding upon Client fifteen (15) days after receipt thereof by Client.
9. Client will take reasonable security precautions (including those required by Certegy) to prevent unauthorized or fraudulent use of the Electronic Check Services by Client’s employees, agents, and customers.
10. On a daily basis, Certegy will create ACH transfer files for all EFT Checks authorized and will originate ACH transfers based upon the ACH transfer files. Client’s Account will normally be credited within two (2) banking days following Certegy’s initiation of the ACH transfer, or (if Client has chosen “with sight drafting”) conversion of the Check to a sight/demand draft (actual posting depends upon the Client’s bank’s automation in handling ACH transfers). Client will provide Certegy with a voided check or other documentation acceptable to Certegy identifying the Account Client wants credited with payments made by Certegy pursuant to this section.
1. The “SettleSmart Services,” provided in conjunction with a financial institution designated by Certegy (“SettleSmart Bank” or “SSB”) include: (i) the centralized processing by SSB of paper Checks payable to Client that are franked per paragraph 3 below and returned unpaid by the Consumer’s Institution; (ii) Certegy’s settlement of Warranty Claims associated with those Checks by accepting the associated debit/reversal from the Consumer’s Institution; and (iii) the direct submission of returned Checks by SSB to Certegy for further handling as determined by Certegy. All terms of the Agreement not specifically modified by this section will apply equally to Transactions processed pursuant to this section. Client must set up an Account pursuant to the General Terms.
2. The SettleSmart Services will commence upon the later of: (i) the Effective Date; or (ii) the date Certegy has reviewed and approved Client’s use of the SettleSmart Endorsement (as defined below).
3. Client will arrange for all dishonored Checks to be debited against Certegy’s centralized return account with the SSB (the “CRA”) in accordance with the terms of the Agreement, requirements of the SSB and any specifications provided by Certegy. Certegy may, upon reasonable prior written notice to Client, change the SSB or CRA to be used for the SettleSmart Service. Client will only use the endorsement stamp(s) and franking instructions provided by Certegy during the time period(s) identified by Certegy (the “SettleSmart Endorsement”). Any dishonored Checks debited against a financial institution account not identified as the then current CRA will be processed in accordance with the terms of the Agreement.
4. If Certegy denies a Warranty Claim or a debit is made in error against the SettleSmart Account in connection with Client (collectively, an “Erroneous Debit”), Client authorizes Certegy to electronically collect the amount of the Erroneous Debit via wire or ACH transfers from Client’s Account. If an ACH transfer attempt fails or is not used by Certegy, Client will pay Certegy all amounts owed for the Erroneous Debits within three (3) business days of receiving verbal notification from Certegy to do so (with written confirmation). If Certegy does not receive payment on a timely basis, then Client will be in breach of the Agreement and Certegy will have the right to suspend or terminate the SettleSmart Services. Upon notice of suspension, Client will immediately stop stamping/franking Checks with the SettleSmart Endorsement, and upon notice of termination, Client will also immediately destroy the stamps (if applicable) or return them to Certegy.
5. If less than eighty percent (80%) of all Checks submitted to Certegy qualify for coverage as a Warranty Claim under the Agreement for any month, then Certegy may (i) charge Client one and one-half percent (1½%) of the total dollar amount of all non-Warranty Claim items processed that quarter; and (ii) increase the Rate. Notwithstanding anything contained herein to the contrary, Certegy will have the right to pass-through to Client any price increase imposed by the SSB for the SettleSmart Services.
6. For purposes of the SettleSmart Services:
a. Paragraph 6(c) of the Check Warranty Services is replaced with the following: “(c) the Check is dated within one (1) day of the date Client requested authorization.”
b. Subsection 5.1(h)(iii) of the General Terms is replaced with the following: “(iii) the Check is deposited within two (2) business days of the date Client requested authorization.”
c. Subsection 5.2 of this General Terms is replaced with the following: “5.2 If a Check that complies with subsection 5.1 of the General Terms is not honored by the Institution on which it was drawn, Certegy will pay Client, on behalf of the Consumer, the face amount of the dishonored Check (which face amount will not exceed the Warranty Claim Limit) by authorizing the SSB to debit the CRA. Certegy will have no obligation to provide warranty coverage for any Check when Client or any financial institution have failed to fully comply with the Agreement, or Certegy’s instructions or specifications, including the time frames specified. Certegy will forward to Client, as mutually agreed, all dishonored Checks that fail to comply with the Agreement. Client will be responsible for replacing any required documentation if lost, stolen, or misplaced by any party.
7. Certegy will have no liability for the actions or omissions of the SSB. Notwithstanding anything to the contrary in the Agreement, Certegy’s payment of Warranty Claims for authorized Checks will satisfy any obligations of Certegy and the SSB in connection with this Agreement and will be Client’s sole and exclusive remedy for any Losses relating to Certegy, SSB, or their respective performance with respect to the SettleSmart Services.
8. Either party may terminate the SettleSmart Services upon thirty (30) days’ prior written notice. Certegy may terminate the SettleSmart Services immediately upon written notice if the SSB terminates the centralized return services with Certegy or if Certegy is prohibited by Applicable Law from providing the SettleSmart Services. The SettleSmart Services will terminate automatically if Client’s Account associated with the SettleSmart Services is closed. Termination of the SettleSmart Services will not affect the term of the Agreement. Upon termination of the SettleSmart Services (i) Client will immediately stop stamping/franking Checks with the SettleSmart Endorsement, and (ii) the Institution will forward all returned items received after the termination date to the bank of first deposit for chargeback to Client. Client will accept such returned items and waives all rights related to any delay in return of such returned items. A notice of termination of the SettleSmart Services by Client will be rendered ineffective if Client uses or avails itself of the SettleSmart Services after the date of termination contained in any such notice. Further, if Client continues to endorse Checks with the SettleSmart Endorsement more than five (5) days after termination, Client will pay Certegy twenty dollars ($20.00) for each Check that includes the SettleSmart Endorsement.
STOP PAYMENT COVERAGE
Notwithstanding Section 5 of the General Terms, Certegy will pay Client for a Warranty Claim for a Check that is not honored by the Institution because the Consumer instructed the Institution to “stop payment” on the Check, provided the Check otherwise satisfies the conditions of the Agreement (“Stop Payment Warranty Claim”). Client will attempt to resolve all bona fide disputes associated with the Stop Payment Warranty Claim. If Certegy pays Client for a Stop Payment Warranty Claim and Certegy is unable to initiate or complete collection efforts against the Consumer of the paid Stop Payment Warranty Claim due to an unresolved dispute between the Consumer and Client, Certegy may reverse the payment of the Stop Payment Warranty Claim.
Certegy will settle daily all Client’s fees calculated as a percentage of the face value of a Transaction (“Transaction Fees”) on Transactions made that business day (and on any preceding day that was not a business day) by deducting such Transaction Fees from the Client’s daily Transaction amount.
CHECK ON DELIVERY (C.O.D.) AND MAIL ORDER TRANSACTIONS
These terms only apply to transactions where all of the following conditions exist: (i) the Checkwriter is not present at the Location at the time goods are ordered and consequently places an order for the goods by mail or telephone (“Order”); (ii) Client ships the goods to the Checkwriter or to a location designated by the Checkwriter; and (iii) either (a) the Checkwriter pays for the goods with a single Check upon delivery (a “C.O.D. Transaction”), or (b) Client receives a Check in advance of shipping the corresponding goods to the Checkwriter and Client requests authorization only after the Check is in its physical possession (a “Mail Order Transaction”). If in connection with C.O.D. services Certegy has indicated a Dollar Differential amount on the Certegy Master Services Agreement, then the face amount of any Check in connection with a C.O.D. Transaction must not exceed the dollar amount authorized by more than such amount.
With respect to C.O.D. Transactions, the definition for “Check(s)” of the General Terms is replaced in its entirety with the following: “‘Check(s)’ means all checks and third-party drafts drawn on U.S. or Canadian domiciled financial institutions in U.S. dollars.”
With respect to C.O.D. Transactions and Mail Order Transactions only:
a. Subsection 1(a) of the of the “CHECK WARRANTY” section above is replaced in its entirety with the following: “Except as set forth below, Client shall exclusively request authorization from Certegy for all Checks drawn on Institutions presented by Checkwriters to Client through any of Client’s Locations within the number of days of the Check date set forth on the Certegy Master Services Agreement for the applicable service (Date Conflict). Client may add Locations at any time; however, Locations may not be deleted unless Client completely discontinues business at the Location or the Location ceases accepting checks as payment tender. Certegy may modify its fees of Locations are added or deleted. Certegy makes no representation or warranty that it will be available to respond to every authorization request from Client, and Client should make alternative arrangements for times when the Services are unavailable.”
b. Subsection 1(c) of the “CHECK WARRANTY” section above is replaced in its entirety with the following: “If a Check is authorized, Client shall record the applicable authorization number on the Order documentation as well as on the Check, but if not authorized, and Client determines that it will not otherwise accept the Order, Client shall promptly advise the Checkwriter of this fact and mail the Checkwriter a Certegy-approved decline notice.”
c. Subsections 6(c) and (d) of the “CHECK WARRANTY” section above are replaced in their entirety as follows: “(c) the Check is dated no more than the number of days set forth on the Certegy Master Services Agreement for the applicable service (Date Conflict) after the date Client requested authorization; and Client submits to Certegy all required Warranty Claim documents so that they are postmarked no more than thirty (30) days from the authorization date if a C.O.D. Transaction or no more than forty (40) days from the authorization date if a Mail Order Transaction; (d) the corresponding Certegy authorization number and, except in the case of a business Check, the Checkwriter’s government-issued driver’s license or identification card number together with the issuing state or providence are written on the Check;”
d. Subsections 5.1(h)(ii) and (iii) of the General Terms are replaced in their entirety with the following: “(ii) the Check was authorized by the Checkwriter and, (A) if a check, the check meets the requirements of both subsections 6(a) and 6(b) of the “CHECK WARRANTY” service-specific terms, or (B) if a third-party draft (only applicable to C.O.D. Transactions), the Checkwriter’s financial institution honors drafts not signed by Checkwriters; and (iii) the Check is deposited within five (5) business days of the date Client received the Check.”
e. Subsection 5.2 of the General Terms is replaced in its entirety with the following: “In the event a Check that complies with subsection 5.1 is not honored by the institution, Certegy shall pay Client, on behalf of the Checkwriter, the face amount of the Check (which face amount shall not exceed the Warranty Claim Limit) upon receipt of: (i) the dishonored Check properly endorsed to Certegy; (ii) the completed Check submission form; and (iii) the completed fulfillment Order documentation which shall confirm that Client delivered all of the goods paid for to the destination specified by the Checkwriter (collectively, “Warranty Claim”). Required Warranty Claim documents postmarked more than sixty (60) days from the Check date will be ineligible for this warranty coverage. If Warranty Claim documents are forwarded to Certegy by someone other than Client, Client shall remain responsible for compliance with all terms and conditions of this Agreement. Client shall be responsible for replacing any required documentation if it is lost, stolen or misplaced.”
With respect to C.O.D. Mail Order Transactions only:
a. Subsection 6(e) of the “CHECK WARRANTY” section above is replaced in its entirety with the following: “the Check, by itself, or in combination with a form of payment other than another Check, was received by Client as full payment in a current and final transaction involving the Checkwriter (if the Check was for goods, the goods must not be returned or repossessed) or was one (1) of only two (2) checks presented as full payment in a single Mail Order Transaction so long as the 2nd Check is for no more than $20.00 and was necessary to compensate for an inadvertent miscalculation of the total amount due;”