MERCHANT APPLICATION

515 Broadhollow Road Melville, NY 11747-3709

Phone 1.866.373-2249 Fax (516) 962-7528
www.goepsg.com
Merchant #
New Location Additional Location
Sales Office/ISO # Location # of
Programs: 1 2 3 4 5 6
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Legal Name: DBA Name:
Legal Address: DBA Address (no PO Box):
Legal City, State, Zip: DBA City, State, Zip:
Legal Phone #: Contact: DBA Phone # (non-mobile is preferred):
Cust. Svc. # (if different): Website Address: www.
Fax #: Email Address (required to receive E-statement availability notification):
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Federal Tax # (9 digits, no dashes): # of Locations: Years in Business: Years Owned Business:
Bank Name: Routing #: Checking Account #: Bank Phone # (10 digits, no dashes) :
Type of Ownership: Sole Proprietor Partnership Not For Profit Corporation Limited Liability Company
Type of Goods or Services Sold: SIC Code:
Do you currently process Credit Cards? Yes No
If yes, submit three current months' processing statements
Name of current processor:
Has Merchant or any associated principal disclosed below filed bankruptcy or been subject
to any involuntary bankruptcy? No Yes
If yes, date filed:
Processing Profile:
Retail
Restaurant
Lodging
Service
Mail/Telephone Order
eCommerce
Card Swiped %
Manual Key Entry with Imprint, Card
Present with Signature %
Mail/Telephone Order %
eCommerce %
TOTAL MUST EQUAL 100%
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH, Kaltenbornweg 1-3, 50679 Cologne, Germany
+49 221 99577 777 support.deucs@db.com
IMPORTANT MERCHANT RESPONSIBILITIES IMPORTANT MEMBER BANK RESPONSIBILITIES
1. A Visa Member is the only entity approved to extend acceptance of Visa products directly to a
merchant.
2. A Visa Member must be a principal (signer) to the Merchant Agreement.
3. The Visa Member is responsible for educating Merchants on pertinent Visa Operating Regulations
with which Merchants must comply.
4. The Visa Member is responsible for and must provide settlement funds to the Merchant.
5. The Visa Member is responsible for all funds held in reserve that are derived from the settlement.
1. Merchant must ensure compliance with cardholder data security and storage requirements.
2. Merchant must maintain fraud and chargebacks below thresholds.
3. Merchant must review and understand the terms of the Merchant Agreement.
4. Merchant must comply with Visa Operating Regulations.
The responsibilities listed above do not supersede terms of the Merchant Agreement and are
provided to ensure the merchant understands these specific responsibilities.




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***** Payment Card Industry Data Security Standards ("PCI DSS") and card association rules prohibit storage of track data under any circumstances. If you or your Point of Sale ("POS") system
pass, transmit, store or receive full cardholder's data, then the POS software must be Payment Application Data Security Standard ("PA DSS") compliant or you (merchant) must validate PCI DSS
compliance (see #1(b) below and questions #3 and #4 must be completed). If you use a payment gateway, they must be PCI DSS compliant.*****
1. Have you ever experienced an Account Data Compromise ("ADC")? Yes No If yes, provide date of compromise:
a) Have you validated PCI DSS compliance? Yes No If yes, go to #1(b); If no, go to #2
b) Date of compliance, Report on Compliance ("ROC") or Self Assessment Questionnaire ("SAQ"):
c) What is the name of your Qualified Security Assessor ("QSA")? or SAQ (circle one): A, B, C, or D
d) Date of last scan: Approved Scanning Vendor's name:
2. Are you using a "dial-up" terminal or Touch Tone Capture ("TTC")? Yes No
3. Do you or your Service Provider(s) receive, pass, transmit or store the Full Cardholder Number ("FCN"), electronically? Yes No
a) If yes, where is card data stored? Merchant's location only Primary Service Provider Other Service Provider:
Merchant's Headquarters/Corp office only Both Merchant and Service Provider(s) All Apply
4. What Primary Service Provider/Software Developer did you purchase your POS application from (i.e., software, gateway)?
a) What is the name of the Service Provider/Software Developer's application? Software Version #:
b) Do your transactions process through any other Service Provider (i.e., web hosting companies, gateways, corporate office)? Yes No
c) If yes, name the other Service Provider:




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(Individual Ownership Must be Equal to or Greater than 50%)
Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
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(To Be Completed by Sales Representative)
Merchant Location: Retail Location with Store Front Office Building Residence Other:
Area Zoned: Commercial Industrial Residential Is inventory/merchandise amount consistent with type of business? Yes No
If No, explain:
The Merchant: Owns Leases the Business Premises Landlord Name & Phone #:
Does the Merchant use a Fulfillment House? Yes No If yes, was the Fulfillment House inspected? Yes No
Further comments by Inspector (required):
I hereby verify that this application has been fully completed by merchant applicant and that I have physically inspected the business
premises of the merchant at this address and the information stated above is true and correct to the best of my knowledge and belief.
Verified and Inspected by: Date:
Representative Print Name Representative Signature
EVO IS A REGISTERED SERVICEMARK OF EVO MERCHANT SERVICES, LLC 06/12 10
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Merchant Initials (required)
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Interchange Plus Tiered Pricing
VISA/MasterCard/Discover Discount Rate: %
Offline Debit Discount Rate: %
Rewards/World Cards Surcharge: %
Mid-Qualified Surcharges: %
Non-Qualified Surcharges: %
American Express Discount Rate*: %
Transaction Fee: Per Item
Offline Debit Transaction Fee: Per Item
Debit Transaction Fee (Plus Debit Network Fees): Per Item
Bank Service Fee: Monthly
Batch Fee: $ 0.35 Per Batch
Visa Authorization Network Access/Usage Fee: $ 0.0195 Per Item
Visa Settlement Network Access/Usage Fee: $ 0.003 Per Item
MasterCard Authorization/Settlement Network Access/Usage Fee: $ 0.0186 Per Item
Discover Authorization/Settlement Network Access/Usage Fee: $ 0.02 Per Item
Monthly Minimum: $25.00 Monthly
AVS Surcharge: $ 0.05 Per Item
EBT Transaction Fee (Copy of USDA Permit Required): Per Item
Petroleum IP Monthly Fee: Monthly
Voice Authorization Fee: $ 1.50 Per Call
ACH Reject Fee: $25.00 Per Item
Retrieval Fee: $10.00 Per Item
Chargeback Fee: $25.00 Per Item
Annual Fee (billed in advance for the following year): $79.00 Per Year
Gateway Activation Fee: One Time
Gateway Access Fee: Monthly
eCommerce/Gateway Item Fee: Per Item
Wireless Activation Fee: $25.00 One Time
Wireless Access Fee: $14.00 Monthly
Wireless Item Fee: $ 0.05 Per Item
I/We understand and agree to the following: 1) Discount rate as stated above will be charged on Qualified Rate transactions. Qualified Rate transactions are defined as electronically authorized and swiped
transactions that are batched and closed daily. In addition, sales volume may be charged for Association dues and assessments at a rate of up to 0.11%. 2) All lodging, car rental, small ticket, convenience and
Express Services transactions may have a surcharge of up to 0.49% added to the Qualified Rate. 3) Discover transactions may have a surcharge of up to 0.50% added to the Qualified Rate. 4) A Mid-Qualified
surcharge of up to 1.48% + $0.20 will be added to the Qualified Rate under the following circumstances: a) Cardholder and card present at merchants point of sale device, key entered, signature obtained, Address
Verification Service ("AVS") with full match of billing zip code, settled within three days of authorization; settle amount must equal authorized amount; b) Card not present, single authorization only, order number
required, AVS with full match of billing zip code, settled within two days of authorization, settle amount must equal authorized amount; c) Certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced
Value & MasterCard World Card transactions. 5) A Non-Qualified surcharge of up to 1.98% + $0.20 may be added to the Qualified Rate for transactions that do not meet the requirements stated above and may
also apply to transactions on Bus, Corp, Intl, Purch, & Comm Cards; T & E, Mail/Telephone, e-Commerce, certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced Value & MasterCard World Card.
6) If Interchange/Cost Plus: All transactions will be assessed the current, published interchange rates, dues, and assessments in addition to the basis points as stated above. The published rates for Visa and
MasterCard can be viewed at: www.visa.com and www.mastercard.com. 7) Merchants may be charged a Cross Border transaction assessment of up to 1.00%, in addition to the applicable rate, on transactions
when the country code of the Card Issuer differs from the country code of the Merchant. 8) On international transactions Merchants may be charged a rate of up to 0.55% for Visa's International Acquirer Fee,
Maestro U.S. and MasterCard's Acquirer Program Support Fee and Discover's International Service Fee and International Processing Fee. 9) POS high-speed processing and/or gateway activation may be subject
to a one time set up fee of up to $100.00, depending on provider. 10) An early closure fee of $295.00 will be paid to EVO if the Merchant Processing Agreement is not terminated in accordance with the Terms and
Conditions. 11) Merchant will also be assessed the following fees on Visa transactions: the Visa Misuse of Authorization System Fee, which will be assessed on authorizations that are approved but not settled in a
timely manner; the Visa Zero Floor Limit Fee, which will be assessed on settled transactions that do not correspond to a valid authorization within the prior 30 days; and the Visa Zero Dollar Verification Fee, which
will be assessed on transactions where Merchant requested an address verification response without an authorization. These fees of up to $0.10 per transaction will be displayed as separate items on Merchant's
monthly statement and may include fees assessed by both the applicable card association and Bank or EVO. 12) Merchant will also be assessed each month the following Card Association fees: Fixed Network Fee
and Acceptance and Licensing Fee. These fees, which may vary each month, are based on Merchant Category Codes, the number of merchant locations by Merchant's taxpayer identification number, and/or
Merchant's processing volume by Merchant's taxpayer identification number. For additional information about these fees go to www.goevo.com/FNF. * American Express Fees: Retail: $0.10 transaction fee
**; Services, Wholesale and All Other: $0.15 transaction fee. ** A .30% CNP fee will be charged for any transaction where the Card is not presented at the time of the transaction.
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Merchant authorizes any party to the Agreement to present Automated Clearing House credits, Automated Clearing House debits, wire transfers, or depository transfer checks to and from the following account and to and
from any other account for which any such parties are authorized to perform such functions under the Merchant Processing Agreement, for the purposes set forth in the Merchant Processing Agreement. This authorization
extends to such entries in said account concerning lease, rental or purchase agreements for POS terminals and/or accompanying equipment and/or check guarantee fees and amounts due for supplies and materials. This
Automated Clearing House authorization cannot be revoked until all Merchant obligations under this Agreement are satisfied, and Merchant gives written notice of revocation as required by this Agreement.
INVESTIGATIVE CONSUMER REPORT: An investigative or consumer report may be made in connection with application. MERCHANT authorizes ANY PARTY TO THE AGREEMENT or any of their agents to investigate
the references provided or any other statements or data obtained from MERCHANT, and from any of the undersigned personal guarantor(s), or from any other person or entity with any financial obligations under this
Agreement. You have a right, upon written request, to a complete and accurate disclosure of the nature and scope of the investigation requested.
Each person certifies that the average ticket size and sales volume indicated is accurate and agrees that any transaction or monthly volume that exceeds either of the above amounts could result in delayed and/or withheld
settlement of funds. Also, see paragraphs 4.C, 9 and 13.B of the MERCHANT Processing Agreement regarding suspension and termination of MERCHANT. *Highest ticket for informational purposes only.
BANK CARD: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
AMEX: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
IMPORTANT NOTICE: All information contained in this application was completed or supplied by all contracting parties. EVO and BANK shall not be responsible for any change in printed terms unless specifically agreed to in
writing by an officer of EVO and BANK. By signing below on either the original or a facsimile you are agreeing to the provisions stated within the Terms and Conditions of the Merchant Processing Agreement and the Merchant
Application on the reverse side, and you are acknowledging that you have carefully read each of those provisions before signing.
FOR ALL CORPORATIONS CORP. RESOLUTION -- The indicated officer(s) identified in numbers 1 and/or 2 below have the authorization to execute the MERCHANT Processing Agreement on behalf of the herewithin named
corporation. MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED BY BANK AND A MERCHANT NUMBER IS ISSUED.
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As a primary inducement to EVO and Bank to enter into this Agreement, the undersigned Guarantor(s), by signing
this Agreement, jointly and severally, unconditionally and irrevocably, personally guarantee the continuing full and
faithful performance and payment by Merchant of each of its duties and obligations to EVO and Bank under this
Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals
and EVO and Bank, as such agreements now exist or are amended from time to time, with or without notice.
Guarantor(s) understands further that EVO and Bank may proceed directly against Guarantor(s) without first
exhausting their remedies against any other person or entity responsible to it or any security held by EVO and Bank
or Merchant. Guarantor(s) waive trial by jury with respect to any litigation arising out of or relating to this personal
guaranty. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs,
administrators, representatives and assigns and may be enforced by or for the benefit of any successor of EVO and
Bank. Guarantor(s) understand that the inducement to EVO and Bank to enter into this agreement is consideration
for the guaranty, and that this guaranty remains in full force and effect even if the Guarantor(s) receive no additional
benefit from the guaranty.
AGREED AND ACCEPTED
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#1 From ApplicationSignature Date
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#2 From ApplicationSignature Date
If Merchant submits a transaction hereunder, Merchant will be deemed to
have accepted the Terms and Conditions of the Merchant Processing
Agreement. For Merchants who have elected to accept the American Express
Card, the submission of an American Express Card transaction will be
deemed to be an acceptance of the American Express Card Acceptance
Agreement and the above American Express provisions.
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#1 From ApplicationSignature Date
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#2 From ApplicationSignature Date
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Accepted by EVO Merchant Services, LLC
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Accepted by Deutsche Bank AG, New York
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Accepted by Deutsche Bank AG, New York
EVO is a registered ISO/MSP for Deutsche Bank AG, New York
Page 2 of 6
06/12 10
EQUIPMENT/ADDITIONAL SERVICES
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06/12 10
DEPLOYMENT/DOWNLOAD INSTRUCTIONS:
Is Equipment being purchased? Yes Quantity:
Is Equipment being reprogrammed? Yes Quantity:
Is a PINPad being purchased? Yes Quantity:
Is a PINPad swap requested? Yes Quantity:
Is a VAR being reprogrammed: Yes
Name of VAR:
Phone Number of VAR:
Email of VAR:
Fax# of VAR:
Payment of VAR transfer by EVO Platinum: No Yes (if yes, addendum required)
Shipping: (2nd Day) or Choose Other: Ground Overnight Saturday Delivery Pick Up Ship to: Commercial Residential
Ship to: Merchant DBA Merchant Legal ISO Other (indicate):
On Site Install by EVO Tech Specialist? Yes Phone Install by EVO Tech Specialist? Yes
EQUIPMENT/SOFTWARE TYPE: P = PURCHASE R = REPROGRAM S = SWAP Q = QUANTITY (Note: New EVO SIM Card required for all GPRS reprograms).
NURIT 3020
(repro only, *NOS 7 required)
Q
NURIT 2085
(repro only, *NOS 7 required)
P R
Q
NURIT 2085+
(repro only, *NOS 7 required)
Q
NURIT 8320 (repro only)
DIAL IP
Q
NURIT 8320L (repro only)
Q
NURIT 8400
DIAL IP
P R
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NURIT 8400L
P R
Q
VERIFONE VX570
DIAL IP
P R
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OMNI 3730 LE
P R
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OMNI 3730 (repro only)
Q
OMNI 3740 (repro only)
DIAL IP
Q
OMNI 3750 (repro only)
DIAL IP
Q
INGENICO 5100 (repro only)
DIAL IP
HYPERCOM T7 Plus
2 1/4 inch paper 3 inch paper
P R
Q
HYPERCOM T7P (repro only)
FRICTION THERMAL
Q
HYPERCOM T77 (repro only)
FRICTION THERMAL
Q
HYPERCOM 4100 (repro only)
DIAL IP
HYPERCOM 4210 (repro only)
HYPERCOM 4220 (repro only)
DIAL IP
ORION
P R
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DEJAVOO X8 (Dual Comm)
DIAL IP
P R
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DEJAVOO X5 (Dial)
P R
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High Speed Petroleum Box
P R
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Other (Specify):
Q
PINPADS:
VERIFONE 1000 SE P S
Q
HYPERCOM P1300 P S
Q
HYPERCOM P1320 USB P S
(EVO Charge)
Q
Other (Specify):
Q
SOFTWARE:
PC Charge; Version:
P R
DIAL or IP
IC Verify (repro only) Version:
DIAL or IP
Authorize.Net P R
Ruby (repro only)
DIAL or IP
Aloha (repro only)
DIAL or IP
EVO Charge
PayPal/PayFlow Pro
P R
Micros (repro only)
DIAL or IP
Credit Line 911 (repro only)
DIAL or IP
Lightning Online POS
Other (Specify):
DIAL or IP
Q
WIRELESS TERMINALS:
Way MTT 15XX Wireless Combo
KIT/MTT/SIM#
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Nurit 8000 Wireless (GPRS) (repro only)
S/N
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Nurit 8020 Wireless (GPRS)
S/N
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Exadigm XD2100
CDMA MSN# ESN#
GSM/GPRS MSN# SIM#
OTHER:
Check Equipment (Specify):
P R Q
VIVOTECH ViVOpay 4000
Other (Specify):
Q
Manual Imprinter Q
Paper (sold by case only): Q
Size:
Other (Specify):
Q
By signing this application it is agreed that EVO shall not be held responsible for (a) any wireless terminal repairs or (b) providing a replacement wireless terminal due to equipment failure. The terminal manufacturer shall
handle all wireless terminal repairs and replacements. I also understand that due to the complexity of these wireless terminals, the manufacturer may not be able to provide a replacement while completing repairs. In
addition, I further agree that a wireless terminal is NOT covered by participation in the EVO Supply/Replacement Program. EVO will not be responsible for any problems with the wireless services provided pursuant to this
agreement. See Rate Schedule for Wireless Fees. Fees are subject to change.
SETUP REQUESTED:
Terminal Capture (Manual Batch) Host Capture (Auto Batch) Surcharge Tables: Rewards/World __________ Mid-Qual _________ Non-Qual _________
Select All That Apply:
Retail: EBT Debit PIP Zip on Manual Entry Auto Dial (time: AM PM) Verify Last Four of PAN Supermarket
Tips on Purchase Petro with Zip Velocity attempts # Other
Restaurant: PIP Server # Prompt Tips on Purchase No Tips Zip on Manual Entry Other
MOTO: PIP Full MOTO Prompts Auto Dial (time: AM PM) Order # Prompt
CVV Code Level III Other
Receipt Disclaimer:
ADDITIONAL SERVICES:
EVO Platinum Check* Existing Check Service Name: Existing Check Merchant #:
Fleet Cards*
Advance Funding*
Other:
Other Card Types: NEW EXISTING LIST EXISTING MERCHANT NUMBERS
AMERICAN EXPRESS ESA OnePoint (default if none checked)
EBT* Cash Only N/A Existing FCS #:
DEBIT N/A Supplied by EVO
GIFT* Gift Company Name: Existing Gift Card Merchant #:
LOYALTY* Loyalty Company Name: Existing Loyalty Card Merchant #:
Upon Approval of Visa/MasterCard processing, allow 48-72 hours for new non-bankcard(s) to be added.
*Addendum/Application Required
SPECIAL INSTRUCTIONS:
Merchant elects to receive monthly merchant account statements via U.S. Mail to:
Legal Address or DBA Address
AMERICAN EXPRESS: I represent that I have read and am authorized to sign and submit this application for the above entity which agrees to be bound by the American Express Card Acceptance
Agreement (Agreement, which is available at www.goevo.com), and that all information provided herein is true, complete, and accurate. I authorize American Express Travel Related Services Company, Inc.
(AXP) and AXPs agents and Affiliates to verify the information in this application and receive and exchange information about me personally, including by requesting reports from consumer reporting
agencies, and disclose such information to their agent, subcontractors, Affiliates and other parties for any purpose permitted by law. I authorize and direct AXP and AXP agents and Affiliates to inform me
directly, or through the entity above, of reports about me that they have requested from consumer reporting agencies. Such information will include the name and address of the agency furnishing the report. I
also authorize AXP to use the reports from consumer reporting agencies for marketing and administrative purposes.
I understand that upon AXPs approval of the application, the entity will be enrolled, either in AXPs OnePoint program for EVO to perform services for AXP or for AXPs standard Card acceptance program
which has different servicing terms. I understand that if the entity does not qualify for the OnePoint program, then the entity may be enrolled in AXPs standard Card acceptance program, and the entity may
terminate the Agreement. By accepting the American Express Card for the purchase of goods and/or services, or otherwise indicating its intention to be bound, the entity agrees to be bound by the Agreement.
261030855
MERCHANT APPLICATION
515 Broadhollow Road Melville, NY 11747-3709
Phone 1.866.373-2249 Fax (516) 962-7528
www.goepsg.com
Merchant #
New Location Additional Location
Sales Office/ISO # Location # of
Programs: 1 2 3 4 5 6
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Legal Name: DBA Name:
Legal Address: DBA Address (no PO Box):
Legal City, State, Zip: DBA City, State, Zip:
Legal Phone #: Contact: DBA Phone # (non-mobile is preferred):
Cust. Svc. # (if different): Website Address: www.
Fax #: Email Address (required to receive E-statement availability notification):
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Federal Tax # (9 digits, no dashes): # of Locations: Years in Business: Years Owned Business:
Bank Name: Routing #: Checking Account #: Bank Phone # (10 digits, no dashes) :
Type of Ownership: Sole Proprietor Partnership Not For Profit Corporation Limited Liability Company
Type of Goods or Services Sold: SIC Code:
Do you currently process Credit Cards? Yes No
If yes, submit three current months' processing statements
Name of current processor:
Has Merchant or any associated principal disclosed below filed bankruptcy or been subject
to any involuntary bankruptcy? No Yes
If yes, date filed:
Processing Profile:
Retail
Restaurant
Lodging
Service
Mail/Telephone Order
eCommerce
Card Swiped %
Manual Key Entry with Imprint, Card
Present with Signature %
Mail/Telephone Order %
eCommerce %
TOTAL MUST EQUAL 100%
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH, Kaltenbornweg 1-3, 50679 Cologne, Germany
+49 221 99577 777 support.deucs@db.com
IMPORTANT MERCHANT RESPONSIBILITIES IMPORTANT MEMBER BANK RESPONSIBILITIES
1. A Visa Member is the only entity approved to extend acceptance of Visa products directly to a
merchant.
2. A Visa Member must be a principal (signer) to the Merchant Agreement.
3. The Visa Member is responsible for educating Merchants on pertinent Visa Operating Regulations
with which Merchants must comply.
4. The Visa Member is responsible for and must provide settlement funds to the Merchant.
5. The Visa Member is responsible for all funds held in reserve that are derived from the settlement.
1. Merchant must ensure compliance with cardholder data security and storage requirements.
2. Merchant must maintain fraud and chargebacks below thresholds.
3. Merchant must review and understand the terms of the Merchant Agreement.
4. Merchant must comply with Visa Operating Regulations.
The responsibilities listed above do not supersede terms of the Merchant Agreement and are
provided to ensure the merchant understands these specific responsibilities.




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***** Payment Card Industry Data Security Standards ("PCI DSS") and card association rules prohibit storage of track data under any circumstances. If you or your Point of Sale ("POS") system
pass, transmit, store or receive full cardholder's data, then the POS software must be Payment Application Data Security Standard ("PA DSS") compliant or you (merchant) must validate PCI DSS
compliance (see #1(b) below and questions #3 and #4 must be completed). If you use a payment gateway, they must be PCI DSS compliant.*****
1. Have you ever experienced an Account Data Compromise ("ADC")? Yes No If yes, provide date of compromise:
a) Have you validated PCI DSS compliance? Yes No If yes, go to #1(b); If no, go to #2
b) Date of compliance, Report on Compliance ("ROC") or Self Assessment Questionnaire ("SAQ"):
c) What is the name of your Qualified Security Assessor ("QSA")? or SAQ (circle one): A, B, C, or D
d) Date of last scan: Approved Scanning Vendor's name:
2. Are you using a "dial-up" terminal or Touch Tone Capture ("TTC")? Yes No
3. Do you or your Service Provider(s) receive, pass, transmit or store the Full Cardholder Number ("FCN"), electronically? Yes No
a) If yes, where is card data stored? Merchant's location only Primary Service Provider Other Service Provider:
Merchant's Headquarters/Corp office only Both Merchant and Service Provider(s) All Apply
4. What Primary Service Provider/Software Developer did you purchase your POS application from (i.e., software, gateway)?
a) What is the name of the Service Provider/Software Developer's application? Software Version #:
b) Do your transactions process through any other Service Provider (i.e., web hosting companies, gateways, corporate office)? Yes No
c) If yes, name the other Service Provider:




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Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
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Merchant Location: Retail Location with Store Front Office Building Residence Other:
Area Zoned: Commercial Industrial Residential Is inventory/merchandise amount consistent with type of business? Yes No
If No, explain:
The Merchant: Owns Leases the Business Premises Landlord Name & Phone #:
Does the Merchant use a Fulfillment House? Yes No If yes, was the Fulfillment House inspected? Yes No
Further comments by Inspector (required):
I hereby verify that this application has been fully completed by merchant applicant and that I have physically inspected the business
premises of the merchant at this address and the information stated above is true and correct to the best of my knowledge and belief.
Verified and Inspected by: Date:
Representative Print Name Representative Signature
EVO IS A REGISTERED SERVICEMARK OF EVO MERCHANT SERVICES, LLC 06/12 10
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Merchant Initials (required)
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Interchange Plus Tiered Pricing
VISA/MasterCard/Discover Discount Rate: %
Offline Debit Discount Rate: %
Rewards/World Cards Surcharge: %
Mid-Qualified Surcharges: %
Non-Qualified Surcharges: %
American Express Discount Rate*: %
Transaction Fee: Per Item
Offline Debit Transaction Fee: Per Item
Debit Transaction Fee (Plus Debit Network Fees): Per Item
Bank Service Fee: Monthly
Batch Fee: $ 0.35 Per Batch
Visa Authorization Network Access/Usage Fee: $ 0.0195 Per Item
Visa Settlement Network Access/Usage Fee: $ 0.003 Per Item
MasterCard Authorization/Settlement Network Access/Usage Fee: $ 0.0186 Per Item
Discover Authorization/Settlement Network Access/Usage Fee: $ 0.02 Per Item
Monthly Minimum: $25.00 Monthly
AVS Surcharge: $ 0.05 Per Item
EBT Transaction Fee (Copy of USDA Permit Required): Per Item
Petroleum IP Monthly Fee: Monthly
Voice Authorization Fee: $ 1.50 Per Call
ACH Reject Fee: $25.00 Per Item
Retrieval Fee: $10.00 Per Item
Chargeback Fee: $25.00 Per Item
Annual Fee (billed in advance for the following year): $79.00 Per Year
Gateway Activation Fee: One Time
Gateway Access Fee: Monthly
eCommerce/Gateway Item Fee: Per Item
Wireless Activation Fee: $25.00 One Time
Wireless Access Fee: $14.00 Monthly
Wireless Item Fee: $ 0.05 Per Item
I/We understand and agree to the following: 1) Discount rate as stated above will be charged on Qualified Rate transactions. Qualified Rate transactions are defined as electronically authorized and swiped
transactions that are batched and closed daily. In addition, sales volume may be charged for Association dues and assessments at a rate of up to 0.11%. 2) All lodging, car rental, small ticket, convenience and
Express Services transactions may have a surcharge of up to 0.49% added to the Qualified Rate. 3) Discover transactions may have a surcharge of up to 0.50% added to the Qualified Rate. 4) A Mid-Qualified
surcharge of up to 1.48% + $0.20 will be added to the Qualified Rate under the following circumstances: a) Cardholder and card present at merchants point of sale device, key entered, signature obtained, Address
Verification Service ("AVS") with full match of billing zip code, settled within three days of authorization; settle amount must equal authorized amount; b) Card not present, single authorization only, order number
required, AVS with full match of billing zip code, settled within two days of authorization, settle amount must equal authorized amount; c) Certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced
Value & MasterCard World Card transactions. 5) A Non-Qualified surcharge of up to 1.98% + $0.20 may be added to the Qualified Rate for transactions that do not meet the requirements stated above and may
also apply to transactions on Bus, Corp, Intl, Purch, & Comm Cards; T & E, Mail/Telephone, e-Commerce, certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced Value & MasterCard World Card.
6) If Interchange/Cost Plus: All transactions will be assessed the current, published interchange rates, dues, and assessments in addition to the basis points as stated above. The published rates for Visa and
MasterCard can be viewed at: www.visa.com and www.mastercard.com. 7) Merchants may be charged a Cross Border transaction assessment of up to 1.00%, in addition to the applicable rate, on transactions
when the country code of the Card Issuer differs from the country code of the Merchant. 8) On international transactions Merchants may be charged a rate of up to 0.55% for Visa's International Acquirer Fee,
Maestro U.S. and MasterCard's Acquirer Program Support Fee and Discover's International Service Fee and International Processing Fee. 9) POS high-speed processing and/or gateway activation may be subject
to a one time set up fee of up to $100.00, depending on provider. 10) An early closure fee of $295.00 will be paid to EVO if the Merchant Processing Agreement is not terminated in accordance with the Terms and
Conditions. 11) Merchant will also be assessed the following fees on Visa transactions: the Visa Misuse of Authorization System Fee, which will be assessed on authorizations that are approved but not settled in a
timely manner; the Visa Zero Floor Limit Fee, which will be assessed on settled transactions that do not correspond to a valid authorization within the prior 30 days; and the Visa Zero Dollar Verification Fee, which
will be assessed on transactions where Merchant requested an address verification response without an authorization. These fees of up to $0.10 per transaction will be displayed as separate items on Merchant's
monthly statement and may include fees assessed by both the applicable card association and Bank or EVO. 12) Merchant will also be assessed each month the following Card Association fees: Fixed Network Fee
and Acceptance and Licensing Fee. These fees, which may vary each month, are based on Merchant Category Codes, the number of merchant locations by Merchant's taxpayer identification number, and/or
Merchant's processing volume by Merchant's taxpayer identification number. For additional information about these fees go to www.goevo.com/FNF. * American Express Fees: Retail: $0.10 transaction fee
**; Services, Wholesale and All Other: $0.15 transaction fee. ** A .30% CNP fee will be charged for any transaction where the Card is not presented at the time of the transaction.
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Merchant authorizes any party to the Agreement to present Automated Clearing House credits, Automated Clearing House debits, wire transfers, or depository transfer checks to and from the following account and to and
from any other account for which any such parties are authorized to perform such functions under the Merchant Processing Agreement, for the purposes set forth in the Merchant Processing Agreement. This authorization
extends to such entries in said account concerning lease, rental or purchase agreements for POS terminals and/or accompanying equipment and/or check guarantee fees and amounts due for supplies and materials. This
Automated Clearing House authorization cannot be revoked until all Merchant obligations under this Agreement are satisfied, and Merchant gives written notice of revocation as required by this Agreement.
INVESTIGATIVE CONSUMER REPORT: An investigative or consumer report may be made in connection with application. MERCHANT authorizes ANY PARTY TO THE AGREEMENT or any of their agents to investigate
the references provided or any other statements or data obtained from MERCHANT, and from any of the undersigned personal guarantor(s), or from any other person or entity with any financial obligations under this
Agreement. You have a right, upon written request, to a complete and accurate disclosure of the nature and scope of the investigation requested.
Each person certifies that the average ticket size and sales volume indicated is accurate and agrees that any transaction or monthly volume that exceeds either of the above amounts could result in delayed and/or withheld
settlement of funds. Also, see paragraphs 4.C, 9 and 13.B of the MERCHANT Processing Agreement regarding suspension and termination of MERCHANT. *Highest ticket for informational purposes only.
BANK CARD: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
AMEX: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
IMPORTANT NOTICE: All information contained in this application was completed or supplied by all contracting parties. EVO and BANK shall not be responsible for any change in printed terms unless specifically agreed to in
writing by an officer of EVO and BANK. By signing below on either the original or a facsimile you are agreeing to the provisions stated within the Terms and Conditions of the Merchant Processing Agreement and the Merchant
Application on the reverse side, and you are acknowledging that you have carefully read each of those provisions before signing.
FOR ALL CORPORATIONS CORP. RESOLUTION -- The indicated officer(s) identified in numbers 1 and/or 2 below have the authorization to execute the MERCHANT Processing Agreement on behalf of the herewithin named
corporation. MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED BY BANK AND A MERCHANT NUMBER IS ISSUED.
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As a primary inducement to EVO and Bank to enter into this Agreement, the undersigned Guarantor(s), by signing
this Agreement, jointly and severally, unconditionally and irrevocably, personally guarantee the continuing full and
faithful performance and payment by Merchant of each of its duties and obligations to EVO and Bank under this
Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals
and EVO and Bank, as such agreements now exist or are amended from time to time, with or without notice.
Guarantor(s) understands further that EVO and Bank may proceed directly against Guarantor(s) without first
exhausting their remedies against any other person or entity responsible to it or any security held by EVO and Bank
or Merchant. Guarantor(s) waive trial by jury with respect to any litigation arising out of or relating to this personal
guaranty. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs,
administrators, representatives and assigns and may be enforced by or for the benefit of any successor of EVO and
Bank. Guarantor(s) understand that the inducement to EVO and Bank to enter into this agreement is consideration
for the guaranty, and that this guaranty remains in full force and effect even if the Guarantor(s) receive no additional
benefit from the guaranty.
AGREED AND ACCEPTED
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#1 From ApplicationSignature Date
X
#2 From ApplicationSignature Date
If Merchant submits a transaction hereunder, Merchant will be deemed to
have accepted the Terms and Conditions of the Merchant Processing
Agreement. For Merchants who have elected to accept the American Express
Card, the submission of an American Express Card transaction will be
deemed to be an acceptance of the American Express Card Acceptance
Agreement and the above American Express provisions.
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#1 From ApplicationSignature Date
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#2 From ApplicationSignature Date
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Accepted by EVO Merchant Services, LLC
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Accepted by Deutsche Bank AG, New York
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Accepted by Deutsche Bank AG, New York
EVO is a registered ISO/MSP for Deutsche Bank AG, New York
Page 2 of 6
06/12 10
EQUIPMENT/ADDITIONAL SERVICES
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06/12 10
DEPLOYMENT/DOWNLOAD INSTRUCTIONS:
Is Equipment being purchased? Yes Quantity:
Is Equipment being reprogrammed? Yes Quantity:
Is a PINPad being purchased? Yes Quantity:
Is a PINPad swap requested? Yes Quantity:
Is a VAR being reprogrammed: Yes
Name of VAR:
Phone Number of VAR:
Email of VAR:
Fax# of VAR:
Payment of VAR transfer by EVO Platinum: No Yes (if yes, addendum required)
Shipping: (2nd Day) or Choose Other: Ground Overnight Saturday Delivery Pick Up Ship to: Commercial Residential
Ship to: Merchant DBA Merchant Legal ISO Other (indicate):
On Site Install by EVO Tech Specialist? Yes Phone Install by EVO Tech Specialist? Yes
EQUIPMENT/SOFTWARE TYPE: P = PURCHASE R = REPROGRAM S = SWAP Q = QUANTITY (Note: New EVO SIM Card required for all GPRS reprograms).
NURIT 3020
(repro only, *NOS 7 required)
Q
NURIT 2085
(repro only, *NOS 7 required)
P R
Q
NURIT 2085+
(repro only, *NOS 7 required)
Q
NURIT 8320 (repro only)
DIAL IP
Q
NURIT 8320L (repro only)
Q
NURIT 8400
DIAL IP
P R
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NURIT 8400L
P R
Q
VERIFONE VX570
DIAL IP
P R
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OMNI 3730 LE
P R
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OMNI 3730 (repro only)
Q
OMNI 3740 (repro only)
DIAL IP
Q
OMNI 3750 (repro only)
DIAL IP
Q
INGENICO 5100 (repro only)
DIAL IP
HYPERCOM T7 Plus
2 1/4 inch paper 3 inch paper
P R
Q
HYPERCOM T7P (repro only)
FRICTION THERMAL
Q
HYPERCOM T77 (repro only)
FRICTION THERMAL
Q
HYPERCOM 4100 (repro only)
DIAL IP
HYPERCOM 4210 (repro only)
HYPERCOM 4220 (repro only)
DIAL IP
ORION
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DEJAVOO X8 (Dual Comm)
DIAL IP
P R
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DEJAVOO X5 (Dial)
P R
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High Speed Petroleum Box
P R
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Other (Specify):
Q
PINPADS:
VERIFONE 1000 SE P S
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HYPERCOM P1300 P S
Q
HYPERCOM P1320 USB P S
(EVO Charge)
Q
Other (Specify):
Q
SOFTWARE:
PC Charge; Version:
P R
DIAL or IP
IC Verify (repro only) Version:
DIAL or IP
Authorize.Net P R
Ruby (repro only)
DIAL or IP
Aloha (repro only)
DIAL or IP
EVO Charge
PayPal/PayFlow Pro
P R
Micros (repro only)
DIAL or IP
Credit Line 911 (repro only)
DIAL or IP
Lightning Online POS
Other (Specify):
DIAL or IP
Q
WIRELESS TERMINALS:
Way MTT 15XX Wireless Combo
KIT/MTT/SIM#
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Nurit 8000 Wireless (GPRS) (repro only)
S/N
Q
Nurit 8020 Wireless (GPRS)
S/N
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Exadigm XD2100
CDMA MSN# ESN#
GSM/GPRS MSN# SIM#
OTHER:
Check Equipment (Specify):
P R Q
VIVOTECH ViVOpay 4000
Other (Specify):
Q
Manual Imprinter Q
Paper (sold by case only): Q
Size:
Other (Specify):
Q
By signing this application it is agreed that EVO shall not be held responsible for (a) any wireless terminal repairs or (b) providing a replacement wireless terminal due to equipment failure. The terminal manufacturer shall
handle all wireless terminal repairs and replacements. I also understand that due to the complexity of these wireless terminals, the manufacturer may not be able to provide a replacement while completing repairs. In
addition, I further agree that a wireless terminal is NOT covered by participation in the EVO Supply/Replacement Program. EVO will not be responsible for any problems with the wireless services provided pursuant to this
agreement. See Rate Schedule for Wireless Fees. Fees are subject to change.
SETUP REQUESTED:
Terminal Capture (Manual Batch) Host Capture (Auto Batch) Surcharge Tables: Rewards/World __________ Mid-Qual _________ Non-Qual _________
Select All That Apply:
Retail: EBT Debit PIP Zip on Manual Entry Auto Dial (time: AM PM) Verify Last Four of PAN Supermarket
Tips on Purchase Petro with Zip Velocity attempts # Other
Restaurant: PIP Server # Prompt Tips on Purchase No Tips Zip on Manual Entry Other
MOTO: PIP Full MOTO Prompts Auto Dial (time: AM PM) Order # Prompt
CVV Code Level III Other
Receipt Disclaimer:
ADDITIONAL SERVICES:
EVO Platinum Check* Existing Check Service Name: Existing Check Merchant #:
Fleet Cards*
Advance Funding*
Other:
Other Card Types: NEW EXISTING LIST EXISTING MERCHANT NUMBERS
AMERICAN EXPRESS ESA OnePoint (default if none checked)
EBT* Cash Only N/A Existing FCS #:
DEBIT N/A Supplied by EVO
GIFT* Gift Company Name: Existing Gift Card Merchant #:
LOYALTY* Loyalty Company Name: Existing Loyalty Card Merchant #:
Upon Approval of Visa/MasterCard processing, allow 48-72 hours for new non-bankcard(s) to be added.
*Addendum/Application Required
SPECIAL INSTRUCTIONS:
Merchant elects to receive monthly merchant account statements via U.S. Mail to:
Legal Address or DBA Address
AMERICAN EXPRESS: I represent that I have read and am authorized to sign and submit this application for the above entity which agrees to be bound by the American Express Card Acceptance
Agreement (Agreement, which is available at www.goevo.com), and that all information provided herein is true, complete, and accurate. I authorize American Express Travel Related Services Company, Inc.
(AXP) and AXPs agents and Affiliates to verify the information in this application and receive and exchange information about me personally, including by requesting reports from consumer reporting
agencies, and disclose such information to their agent, subcontractors, Affiliates and other parties for any purpose permitted by law. I authorize and direct AXP and AXP agents and Affiliates to inform me
directly, or through the entity above, of reports about me that they have requested from consumer reporting agencies. Such information will include the name and address of the agency furnishing the report. I
also authorize AXP to use the reports from consumer reporting agencies for marketing and administrative purposes.
I understand that upon AXPs approval of the application, the entity will be enrolled, either in AXPs OnePoint program for EVO to perform services for AXP or for AXPs standard Card acceptance program
which has different servicing terms. I understand that if the entity does not qualify for the OnePoint program, then the entity may be enrolled in AXPs standard Card acceptance program, and the entity may
terminate the Agreement. By accepting the American Express Card for the purchase of goods and/or services, or otherwise indicating its intention to be bound, the entity agrees to be bound by the Agreement.
MERCHANT APPLICATION
515 Broadhollow Road Melville, NY 11747-3709
Phone 1.866.373-2249 Fax (516) 962-7528
www.goepsg.com
Merchant #
New Location Additional Location
Sales Office/ISO # Location # of
Programs: 1 2 3 4 5 6
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Legal Name: DBA Name:
Legal Address: DBA Address (no PO Box):
Legal City, State, Zip: DBA City, State, Zip:
Legal Phone #: Contact: DBA Phone # (non-mobile is preferred):
Cust. Svc. # (if different): Website Address: www.
Fax #: Email Address (required to receive E-statement availability notification):
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Federal Tax # (9 digits, no dashes): # of Locations: Years in Business: Years Owned Business:
Bank Name: Routing #: Checking Account #: Bank Phone # (10 digits, no dashes) :
Type of Ownership: Sole Proprietor Partnership Not For Profit Corporation Limited Liability Company
Type of Goods or Services Sold: SIC Code:
Do you currently process Credit Cards? Yes No
If yes, submit three current months' processing statements
Name of current processor:
Has Merchant or any associated principal disclosed below filed bankruptcy or been subject
to any involuntary bankruptcy? No Yes
If yes, date filed:
Processing Profile:
Retail
Restaurant
Lodging
Service
Mail/Telephone Order
eCommerce
Card Swiped %
Manual Key Entry with Imprint, Card
Present with Signature %
Mail/Telephone Order %
eCommerce %
TOTAL MUST EQUAL 100%
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH, Kaltenbornweg 1-3, 50679 Cologne, Germany
+49 221 99577 777 support.deucs@db.com
IMPORTANT MERCHANT RESPONSIBILITIES IMPORTANT MEMBER BANK RESPONSIBILITIES
1. A Visa Member is the only entity approved to extend acceptance of Visa products directly to a
merchant.
2. A Visa Member must be a principal (signer) to the Merchant Agreement.
3. The Visa Member is responsible for educating Merchants on pertinent Visa Operating Regulations
with which Merchants must comply.
4. The Visa Member is responsible for and must provide settlement funds to the Merchant.
5. The Visa Member is responsible for all funds held in reserve that are derived from the settlement.
1. Merchant must ensure compliance with cardholder data security and storage requirements.
2. Merchant must maintain fraud and chargebacks below thresholds.
3. Merchant must review and understand the terms of the Merchant Agreement.
4. Merchant must comply with Visa Operating Regulations.
The responsibilities listed above do not supersede terms of the Merchant Agreement and are
provided to ensure the merchant understands these specific responsibilities.




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***** Payment Card Industry Data Security Standards ("PCI DSS") and card association rules prohibit storage of track data under any circumstances. If you or your Point of Sale ("POS") system
pass, transmit, store or receive full cardholder's data, then the POS software must be Payment Application Data Security Standard ("PA DSS") compliant or you (merchant) must validate PCI DSS
compliance (see #1(b) below and questions #3 and #4 must be completed). If you use a payment gateway, they must be PCI DSS compliant.*****
1. Have you ever experienced an Account Data Compromise ("ADC")? Yes No If yes, provide date of compromise:
a) Have you validated PCI DSS compliance? Yes No If yes, go to #1(b); If no, go to #2
b) Date of compliance, Report on Compliance ("ROC") or Self Assessment Questionnaire ("SAQ"):
c) What is the name of your Qualified Security Assessor ("QSA")? or SAQ (circle one): A, B, C, or D
d) Date of last scan: Approved Scanning Vendor's name:
2. Are you using a "dial-up" terminal or Touch Tone Capture ("TTC")? Yes No
3. Do you or your Service Provider(s) receive, pass, transmit or store the Full Cardholder Number ("FCN"), electronically? Yes No
a) If yes, where is card data stored? Merchant's location only Primary Service Provider Other Service Provider:
Merchant's Headquarters/Corp office only Both Merchant and Service Provider(s) All Apply
4. What Primary Service Provider/Software Developer did you purchase your POS application from (i.e., software, gateway)?
a) What is the name of the Service Provider/Software Developer's application? Software Version #:
b) Do your transactions process through any other Service Provider (i.e., web hosting companies, gateways, corporate office)? Yes No
c) If yes, name the other Service Provider:




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(Individual Ownership Must be Equal to or Greater than 50%)
Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
Name: Title: Date of Birth: Social Security #: % Equity Ownership:
Residence Address: City: State: Zip: # yrs: Home Phone #: Drivers Lic. #: ST:
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(To Be Completed by Sales Representative)
Merchant Location: Retail Location with Store Front Office Building Residence Other:
Area Zoned: Commercial Industrial Residential Is inventory/merchandise amount consistent with type of business? Yes No
If No, explain:
The Merchant: Owns Leases the Business Premises Landlord Name & Phone #:
Does the Merchant use a Fulfillment House? Yes No If yes, was the Fulfillment House inspected? Yes No
Further comments by Inspector (required):
I hereby verify that this application has been fully completed by merchant applicant and that I have physically inspected the business
premises of the merchant at this address and the information stated above is true and correct to the best of my knowledge and belief.
Verified and Inspected by: Date:
Representative Print Name Representative Signature
EVO IS A REGISTERED SERVICEMARK OF EVO MERCHANT SERVICES, LLC 06/12 10
Page 1 of 6
Merchant Initials (required)
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Interchange Plus Tiered Pricing
VISA/MasterCard/Discover Discount Rate: %
Offline Debit Discount Rate: %
Rewards/World Cards Surcharge: %
Mid-Qualified Surcharges: %
Non-Qualified Surcharges: %
American Express Discount Rate*: %
Transaction Fee: Per Item
Offline Debit Transaction Fee: Per Item
Debit Transaction Fee (Plus Debit Network Fees): Per Item
Bank Service Fee: Monthly
Batch Fee: $ 0.35 Per Batch
Visa Authorization Network Access/Usage Fee: $ 0.0195 Per Item
Visa Settlement Network Access/Usage Fee: $ 0.003 Per Item
MasterCard Authorization/Settlement Network Access/Usage Fee: $ 0.0186 Per Item
Discover Authorization/Settlement Network Access/Usage Fee: $ 0.02 Per Item
Monthly Minimum: $25.00 Monthly
AVS Surcharge: $ 0.05 Per Item
EBT Transaction Fee (Copy of USDA Permit Required): Per Item
Petroleum IP Monthly Fee: Monthly
Voice Authorization Fee: $ 1.50 Per Call
ACH Reject Fee: $25.00 Per Item
Retrieval Fee: $10.00 Per Item
Chargeback Fee: $25.00 Per Item
Annual Fee (billed in advance for the following year): $79.00 Per Year
Gateway Activation Fee: One Time
Gateway Access Fee: Monthly
eCommerce/Gateway Item Fee: Per Item
Wireless Activation Fee: $25.00 One Time
Wireless Access Fee: $14.00 Monthly
Wireless Item Fee: $ 0.05 Per Item
I/We understand and agree to the following: 1) Discount rate as stated above will be charged on Qualified Rate transactions. Qualified Rate transactions are defined as electronically authorized and swiped
transactions that are batched and closed daily. In addition, sales volume may be charged for Association dues and assessments at a rate of up to 0.11%. 2) All lodging, car rental, small ticket, convenience and
Express Services transactions may have a surcharge of up to 0.49% added to the Qualified Rate. 3) Discover transactions may have a surcharge of up to 0.50% added to the Qualified Rate. 4) A Mid-Qualified
surcharge of up to 1.48% + $0.20 will be added to the Qualified Rate under the following circumstances: a) Cardholder and card present at merchants point of sale device, key entered, signature obtained, Address
Verification Service ("AVS") with full match of billing zip code, settled within three days of authorization; settle amount must equal authorized amount; b) Card not present, single authorization only, order number
required, AVS with full match of billing zip code, settled within two days of authorization, settle amount must equal authorized amount; c) Certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced
Value & MasterCard World Card transactions. 5) A Non-Qualified surcharge of up to 1.98% + $0.20 may be added to the Qualified Rate for transactions that do not meet the requirements stated above and may
also apply to transactions on Bus, Corp, Intl, Purch, & Comm Cards; T & E, Mail/Telephone, e-Commerce, certain Discover, Visa Rewards & Visa Signature, MasterCard Enhanced Value & MasterCard World Card.
6) If Interchange/Cost Plus: All transactions will be assessed the current, published interchange rates, dues, and assessments in addition to the basis points as stated above. The published rates for Visa and
MasterCard can be viewed at: www.visa.com and www.mastercard.com. 7) Merchants may be charged a Cross Border transaction assessment of up to 1.00%, in addition to the applicable rate, on transactions
when the country code of the Card Issuer differs from the country code of the Merchant. 8) On international transactions Merchants may be charged a rate of up to 0.55% for Visa's International Acquirer Fee,
Maestro U.S. and MasterCard's Acquirer Program Support Fee and Discover's International Service Fee and International Processing Fee. 9) POS high-speed processing and/or gateway activation may be subject
to a one time set up fee of up to $100.00, depending on provider. 10) An early closure fee of $295.00 will be paid to EVO if the Merchant Processing Agreement is not terminated in accordance with the Terms and
Conditions. 11) Merchant will also be assessed the following fees on Visa transactions: the Visa Misuse of Authorization System Fee, which will be assessed on authorizations that are approved but not settled in a
timely manner; the Visa Zero Floor Limit Fee, which will be assessed on settled transactions that do not correspond to a valid authorization within the prior 30 days; and the Visa Zero Dollar Verification Fee, which
will be assessed on transactions where Merchant requested an address verification response without an authorization. These fees of up to $0.10 per transaction will be displayed as separate items on Merchant's
monthly statement and may include fees assessed by both the applicable card association and Bank or EVO. 12) Merchant will also be assessed each month the following Card Association fees: Fixed Network Fee
and Acceptance and Licensing Fee. These fees, which may vary each month, are based on Merchant Category Codes, the number of merchant locations by Merchant's taxpayer identification number, and/or
Merchant's processing volume by Merchant's taxpayer identification number. For additional information about these fees go to www.goevo.com/FNF. * American Express Fees: Retail: $0.10 transaction fee
**; Services, Wholesale and All Other: $0.15 transaction fee. ** A .30% CNP fee will be charged for any transaction where the Card is not presented at the time of the transaction.
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Merchant authorizes any party to the Agreement to present Automated Clearing House credits, Automated Clearing House debits, wire transfers, or depository transfer checks to and from the following account and to and
from any other account for which any such parties are authorized to perform such functions under the Merchant Processing Agreement, for the purposes set forth in the Merchant Processing Agreement. This authorization
extends to such entries in said account concerning lease, rental or purchase agreements for POS terminals and/or accompanying equipment and/or check guarantee fees and amounts due for supplies and materials. This
Automated Clearing House authorization cannot be revoked until all Merchant obligations under this Agreement are satisfied, and Merchant gives written notice of revocation as required by this Agreement.
INVESTIGATIVE CONSUMER REPORT: An investigative or consumer report may be made in connection with application. MERCHANT authorizes ANY PARTY TO THE AGREEMENT or any of their agents to investigate
the references provided or any other statements or data obtained from MERCHANT, and from any of the undersigned personal guarantor(s), or from any other person or entity with any financial obligations under this
Agreement. You have a right, upon written request, to a complete and accurate disclosure of the nature and scope of the investigation requested.
Each person certifies that the average ticket size and sales volume indicated is accurate and agrees that any transaction or monthly volume that exceeds either of the above amounts could result in delayed and/or withheld
settlement of funds. Also, see paragraphs 4.C, 9 and 13.B of the MERCHANT Processing Agreement regarding suspension and termination of MERCHANT. *Highest ticket for informational purposes only.
BANK CARD: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
AMEX: AVERAGE TICKET SIZE: *HIGHEST TICKET SIZE: MONTHLY VOLUME:
IMPORTANT NOTICE: All information contained in this application was completed or supplied by all contracting parties. EVO and BANK shall not be responsible for any change in printed terms unless specifically agreed to in
writing by an officer of EVO and BANK. By signing below on either the original or a facsimile you are agreeing to the provisions stated within the Terms and Conditions of the Merchant Processing Agreement and the Merchant
Application on the reverse side, and you are acknowledging that you have carefully read each of those provisions before signing.
FOR ALL CORPORATIONS CORP. RESOLUTION -- The indicated officer(s) identified in numbers 1 and/or 2 below have the authorization to execute the MERCHANT Processing Agreement on behalf of the herewithin named
corporation. MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED BY BANK AND A MERCHANT NUMBER IS ISSUED.
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As a primary inducement to EVO and Bank to enter into this Agreement, the undersigned Guarantor(s), by signing
this Agreement, jointly and severally, unconditionally and irrevocably, personally guarantee the continuing full and
faithful performance and payment by Merchant of each of its duties and obligations to EVO and Bank under this
Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals
and EVO and Bank, as such agreements now exist or are amended from time to time, with or without notice.
Guarantor(s) understands further that EVO and Bank may proceed directly against Guarantor(s) without first
exhausting their remedies against any other person or entity responsible to it or any security held by EVO and Bank
or Merchant. Guarantor(s) waive trial by jury with respect to any litigation arising out of or relating to this personal
guaranty. This guaranty will not be discharged or affected by the death of the undersigned, will bind all heirs,
administrators, representatives and assigns and may be enforced by or for the benefit of any successor of EVO and
Bank. Guarantor(s) understand that the inducement to EVO and Bank to enter into this agreement is consideration
for the guaranty, and that this guaranty remains in full force and effect even if the Guarantor(s) receive no additional
benefit from the guaranty.
AGREED AND ACCEPTED
X
#1 From ApplicationSignature Date
X
#2 From ApplicationSignature Date
If Merchant submits a transaction hereunder, Merchant will be deemed to
have accepted the Terms and Conditions of the Merchant Processing
Agreement. For Merchants who have elected to accept the American Express
Card, the submission of an American Express Card transaction will be
deemed to be an acceptance of the American Express Card Acceptance
Agreement and the above American Express provisions.
X
#1 From ApplicationSignature Date
X
#2 From ApplicationSignature Date
X
Accepted by EVO Merchant Services, LLC
X
Accepted by Deutsche Bank AG, New York
X
Accepted by Deutsche Bank AG, New York
EVO is a registered ISO/MSP for Deutsche Bank AG, New York
Page 2 of 6
06/12 10
EQUIPMENT/ADDITIONAL SERVICES
Page 3 of 6
06/12 10
DEPLOYMENT/DOWNLOAD INSTRUCTIONS:
Is Equipment being purchased? Yes Quantity:
Is Equipment being reprogrammed? Yes Quantity:
Is a PINPad being purchased? Yes Quantity:
Is a PINPad swap requested? Yes Quantity:
Is a VAR being reprogrammed: Yes
Name of VAR:
Phone Number of VAR:
Email of VAR:
Fax# of VAR:
Payment of VAR transfer by EVO Platinum: No Yes (if yes, addendum required)
Shipping: (2nd Day) or Choose Other: Ground Overnight Saturday Delivery Pick Up Ship to: Commercial Residential
Ship to: Merchant DBA Merchant Legal ISO Other (indicate):
On Site Install by EVO Tech Specialist? Yes Phone Install by EVO Tech Specialist? Yes
EQUIPMENT/SOFTWARE TYPE: P = PURCHASE R = REPROGRAM S = SWAP Q = QUANTITY (Note: New EVO SIM Card required for all GPRS reprograms).
NURIT 3020
(repro only, *NOS 7 required)
Q
NURIT 2085
(repro only, *NOS 7 required)
P R
Q
NURIT 2085+
(repro only, *NOS 7 required)
Q
NURIT 8320 (repro only)
DIAL IP
Q
NURIT 8320L (repro only)
Q
NURIT 8400
DIAL IP
P R
Q
NURIT 8400L
P R
Q
VERIFONE VX570
DIAL IP
P R
Q
OMNI 3730 LE
P R
Q
OMNI 3730 (repro only)
Q
OMNI 3740 (repro only)
DIAL IP
Q
OMNI 3750 (repro only)
DIAL IP
Q
INGENICO 5100 (repro only)
DIAL IP
HYPERCOM T7 Plus
2 1/4 inch paper 3 inch paper
P R
Q
HYPERCOM T7P (repro only)
FRICTION THERMAL
Q
HYPERCOM T77 (repro only)
FRICTION THERMAL
Q
HYPERCOM 4100 (repro only)
DIAL IP
HYPERCOM 4210 (repro only)
HYPERCOM 4220 (repro only)
DIAL IP
ORION
P R
Q
DEJAVOO X8 (Dual Comm)
DIAL IP
P R
Q
DEJAVOO X5 (Dial)
P R
Q
High Speed Petroleum Box
P R
Q
Other (Specify):
Q
PINPADS:
VERIFONE 1000 SE P S
Q
HYPERCOM P1300 P S
Q
HYPERCOM P1320 USB P S
(EVO Charge)
Q
Other (Specify):
Q
SOFTWARE:
PC Charge; Version:
P R
DIAL or IP
IC Verify (repro only) Version:
DIAL or IP
Authorize.Net P R
Ruby (repro only)
DIAL or IP
Aloha (repro only)
DIAL or IP
EVO Charge
PayPal/PayFlow Pro
P R
Micros (repro only)
DIAL or IP
Credit Line 911 (repro only)
DIAL or IP
Lightning Online POS
Other (Specify):
DIAL or IP
Q
WIRELESS TERMINALS:
Way MTT 15XX Wireless Combo
KIT/MTT/SIM#
Q
Nurit 8000 Wireless (GPRS) (repro only)
S/N
Q
Nurit 8020 Wireless (GPRS)
S/N
Q
Exadigm XD2100
CDMA MSN# ESN#
GSM/GPRS MSN# SIM#
OTHER:
Check Equipment (Specify):
P R Q
VIVOTECH ViVOpay 4000
Other (Specify):
Q
Manual Imprinter Q
Paper (sold by case only): Q
Size:
Other (Specify):
Q
By signing this application it is agreed that EVO shall not be held responsible for (a) any wireless terminal repairs or (b) providing a replacement wireless terminal due to equipment failure. The terminal manufacturer shall
handle all wireless terminal repairs and replacements. I also understand that due to the complexity of these wireless terminals, the manufacturer may not be able to provide a replacement while completing repairs. In
addition, I further agree that a wireless terminal is NOT covered by participation in the EVO Supply/Replacement Program. EVO will not be responsible for any problems with the wireless services provided pursuant to this
agreement. See Rate Schedule for Wireless Fees. Fees are subject to change.
SETUP REQUESTED:
Terminal Capture (Manual Batch) Host Capture (Auto Batch) Surcharge Tables: Rewards/World __________ Mid-Qual _________ Non-Qual _________
Select All That Apply:
Retail: EBT Debit PIP Zip on Manual Entry Auto Dial (time: AM PM) Verify Last Four of PAN Supermarket
Tips on Purchase Petro with Zip Velocity attempts # Other
Restaurant: PIP Server # Prompt Tips on Purchase No Tips Zip on Manual Entry Other
MOTO: PIP Full MOTO Prompts Auto Dial (time: AM PM) Order # Prompt
CVV Code Level III Other
Receipt Disclaimer:
ADDITIONAL SERVICES:
EVO Platinum Check* Existing Check Service Name: Existing Check Merchant #:
Fleet Cards*
Advance Funding*
Other:
Other Card Types: NEW EXISTING LIST EXISTING MERCHANT NUMBERS
AMERICAN EXPRESS ESA OnePoint (default if none checked)
EBT* Cash Only N/A Existing FCS #:
DEBIT N/A Supplied by EVO
GIFT* Gift Company Name: Existing Gift Card Merchant #:
LOYALTY* Loyalty Company Name: Existing Loyalty Card Merchant #:
Upon Approval of Visa/MasterCard processing, allow 48-72 hours for new non-bankcard(s) to be added.
*Addendum/Application Required
SPECIAL INSTRUCTIONS:
Merchant elects to receive monthly merchant account statements via U.S. Mail to:
Legal Address or DBA Address
AMERICAN EXPRESS: I represent that I have read and am authorized to sign and submit this application for the above entity which agrees to be bound by the American Express Card Acceptance
Agreement (Agreement, which is available at www.goevo.com), and that all information provided herein is true, complete, and accurate. I authorize American Express Travel Related Services Company, Inc.
(AXP) and AXPs agents and Affiliates to verify the information in this application and receive and exchange information about me personally, including by requesting reports from consumer reporting
agencies, and disclose such information to their agent, subcontractors, Affiliates and other parties for any purpose permitted by law. I authorize and direct AXP and AXP agents and Affiliates to inform me
directly, or through the entity above, of reports about me that they have requested from consumer reporting agencies. Such information will include the name and address of the agency furnishing the report. I
also authorize AXP to use the reports from consumer reporting agencies for marketing and administrative purposes.
I understand that upon AXPs approval of the application, the entity will be enrolled, either in AXPs OnePoint program for EVO to perform services for AXP or for AXPs standard Card acceptance program
which has different servicing terms. I understand that if the entity does not qualify for the OnePoint program, then the entity may be enrolled in AXPs standard Card acceptance program, and the entity may
terminate the Agreement. By accepting the American Express Card for the purchase of goods and/or services, or otherwise indicating its intention to be bound, the entity agrees to be bound by the Agreement.
06/12 10
Page 4 of 6
06/12 10
Page 5 of 6
06/12 10
Page 6 of 6
MERCHANT PROCESSING AGREEMENT
This document, Merchant Processing Agreement (the Agreement), accompanies the document Merchant Application (Merchant
Application) and includes the Terms and Conditions set forth below (the Terms and Conditions) together with the terms and
conditions of the Merchant Application. The bank (Bank) identified in this Agreement is a member of Visa USA, Inc. (Visa) and
MasterCard International, Inc. (MasterCard), and is Deutsche Bank AG, New York branch. EVO Merchant Services, LLC d/b/a EVO
(EVO) is a registered independent sales organization of Visa and a member service provider of MasterCard. This Agreement is
between EVO, Bank, and the merchant (or you) identified in the Merchant Application (Merchant). Merchant and EVO agree that
the rights and obligations contained in this Agreement do not apply to Bank with respect to Discover transactions. To the extent
Merchant accepts Discover cards, the provisions in this Agreement with respect to Discover apply if Merchant does not have a
separate agreement with Discover. In such case, Merchant will also be enabled to accept JCB and Diners Club cards under the
Discover network and such transactions will be processed at the same fee rate as Merchants Discover transactions are processed.
Any references to the Debit Sponsor shall refer to the debit sponsors identified below.
RECITALS
Merchant desires to accept credit cards (Cards) validly issued by members of Visa, MasterCard, and Discover. Bank and EVO
desire to provide credit card processing services to Merchant. Therefore, Merchant, EVO and Bank agree as follows:
TERMS AND CONDITIONS
1. Honoring Cards.
A. Without Discrimination. You will honor, without discrimination, any Card properly tendered by a Cardholder.
Cardholder means a person possessing a Card and purporting to be the person in whose name the Card is issued. You will not
establish a minimum or maximum transaction amount as a condition for honoring a Card.
B. Cardholder Identification. You will identify the Cardholder and check the expiration date and signature on each Card. You will not
honor any Card if: (i) the Card has expired, (ii) the signature on the sales draft does not correspond with the signature on the Card, or
(iii) the account number embossed on the Card does not match the account number on the Cards magnetic strip (as printed in
electronic form) or the account number listed on a current Electronic Warning Bulletin file. You may not require a Cardholder to
provide personal information, such as a home or business telephone number, a home or business address, or a drivers license
number as a condition for honoring a Card unless permitted under the Laws and Rules (defined in Section 14, below).
C. Card Recovery. You will use your best efforts to retain any Card: (i) on Visa Cards if the printed four digits below the embossed
account number do not match the first four digits of the embossed account number; (ii) if you are advised by EVO or Bank (or a
designee) the issuer of the Card or the designated voice authorization center to retain it: (iii) if you have reasonable grounds to
believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or (iv) if, for MasterCard Cards, the
embossed account number, indent printed account number and encoded account number do not match or the Card does not have a
MasterCard hologram on the lower right corner of the Card face.
D. Surcharges. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card,
except as permitted by the Rules. This paragraph does not prohibit you from offering a discount from the standard price to induce a
person to pay by cash, check or similar means rather than by using a Card.
E. Return Policy. You will properly disclose to the Cardholder, at the time of the Card transaction and in accordance with the Rules,
any limitation you have on accepting returned merchandise.
F. No Claim Against Cardholder. You will not have any claim against or right to receive payment from a Cardholder unless EVO and
Bank refuses to accept the Sales Draft (as defined in Section 3) or revokes a prior acceptance of the Sales Draft after receipt or a
chargeback or otherwise. You will not accept any payments from a Cardholder relating to previous charges for merchandise or
services included in a Sales Draft, and if you receive any such payments you promptly will remit them to EVO and Bank.
G. Disputes With Cardholders. All disputes between you and any Cardholder relating to any Card transaction will be settled between
you and the Cardholder. Neither EVO nor Bank bear any responsibility for such transactions.
2. Authorization.
A. Required on all Transactions. You will obtain a prior authorization for the total amount of a transaction via electronic terminal or
device before completing any transaction, and you will not process any transaction that has not been authorized. You will follow any
instructions received during the authorization process. Upon receipt of authorization you may consummate only the transaction
authorized and must note on the Sales Draft the authorization number. Where authorization is obtained, you will be deemed to
warrant the true identity of the customer as the Cardholder.
B. Effect. Authorizations are not a guarantee of acceptance or payment of the Sales Draft. Authorizations do not waive any provisions
of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card.
C. Unreadable Magnetic Stripes. When you present Card transactions for authorization electronically, and if your terminal is unable to
read the magnetic stripe on the card, you will obtain an imprint of the card and the Cardholders signature on the imprinted draft
before presenting the Sales Draft to EVO and Bank for processing. Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions.
3. Presentment of Sales Drafts.
A. Forms. You will use a Sales Draft (Sales Draft) or other form approved by EVO and Bank to document each Card transaction.
Each Sales Draft will be legibly imprinted with: (i) Merchants name, location and account number; (ii) the information embossed on
the Card presented by the Cardholder (either electronically or manually); (iii) the date of the transaction; (iv) a brief description of the
goods or services involved; (v) the transaction authorization number; (vi) the total amount of the sale including any applicable taxes,
or credit transaction; and (vii) adjacent to the signature line, a notation that all sales are final, if applicable.
B. Signatures. Each Sales Draft must be signed by the Cardholder unless the Card transaction is a valid mail/telephone order Card
transaction which fully complies with the requirements set forth in this Agreement. You may not require the Cardholder to sign the
Sales Draft before you enter the final transaction amount in the Sales Draft.
C. Reproduction of Information. If the following information is not legibly imprinted on the Sales Draft, you will legibly inscribe on the
Sales Draft before submitting it to EVO and Bank: (i) the Cardholders name: (ii) account number (iii) expiration date of the Card and
(iv) the Merchants name and place of business. Additionally, for MasterCard transactions you will legibly inscribe the name of the
bank issuing the Card as it appears on the face of the Card.
D. Delivery and Retention of Sales Drafts. You will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at
the time of the transaction. You will retain the merchant copy of the Sales Draft or credit memorandum for at least 3 years following
the date of completion of the Card transaction (or such longer period as the Rules require).
E. Electronic Transmission. In using electronic authorization and/or data capture services, you will enter the data related to a sales or
credit transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the
transaction is completed (unless otherwise permitted by the Rules). Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions and, at EVOs sole discretion, the deposit of the funds received for such sales or credit
transaction into the Reserve Account. If you provide your own electronic terminal or similar device, such terminal must meet EVO and
Banks requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or
magnetic stripe reading terminal will be transmitted by you to EVO and Bank or their agent in the form EVO and Bank from time to
time specify or as required under the Rules. If EVO or Bank requests a copy of a Sales Draft, credit voucher or other transaction
evidence, you will provide it within 24 hours following the request.
4. Deposit of Sales Drafts and Funds Due Merchant.
A. Deposit of Funds. i. Deposits. You agree that this Agreement is a contract of financial accommodation within the meaning of the
Bankruptcy Code, 11 U.S.C. 365 as amended from time to time. Subject to this Section, Bank will deposit to the Designated
Account (defined in section 6 below) funds evidenced by Sales Drafts (whether evidenced in writing or by electronic means)
complying with the terms of this Agreement and the Rules and will provide you provisional credit for such funds (less recoupment of
any credit(s), adjustments, fines, chargebacks, or fees). You shall not be entitled to credit for any indebtedness that arises out of a
transaction not processed in accordance with the terms of this Agreement or the rules and regulations of a card association or
network organization. You acknowledge that your obligation to EVO and Bank for all amounts owed under this Agreement arises out
of the same transaction as EVO and Banks obligation to deposit funds to the Designated Account. ii. Provisional Credit.
Notwithstanding the previous sentences, under no circumstance will EVO or Bank be responsible for processing credits or
adjustments related to Sales Drafts not originally processed by EVO and Bank. All Sales Drafts and deposits are subject to audit and
final checking by EVO and Bank and may be adjusted for inaccuracies. You acknowledge that all credits provided to you are
provisional and subject to chargebacks, recoupment, adjustments, fines and fees: (i) in accordance with the Rules; (ii) for any of your
obligations to EVO and Bank; and (iii) in any other situation constituting suspected fraud or a breach of this Agreement, whether or
not a transaction is charged back by the Card issuer. EVO and Bank may elect, but are not required, to grant conditional credit for
individual or groups of any funds evidenced by Sales Drafts. Final credit for those conditional funds will be granted within EVO and
Banks sole discretion. iii. Processing Limits. EVO and Bank may impose a cap on the volume and ticket amount of Sales Drafts that
they will process for you, as indicated to you by EVO or Bank. This limit may be changed by EVO or Bank upon written notice to you.
B. Chargebacks. You are fully liable for all transactions returned for whatever reason, otherwise known as chargebacks. You will
pay on demand the amount of all chargebacks. Authorization is granted to offset from incoming transactions and to debit the
Designated Account, the Reserve Account (defined in Section 7, below) or any other account held at Bank or at any other financial
institution the amount of all chargebacks. You will fully cooperate in complying with the Rules regarding chargebacks.
C. Excessive Activity. Your presentation to EVO and Bank of Excessive Activity will be a breach of this Agreement and cause for
immediate termination of this agreement. Excessive Activity means, during any monthly period: (i) the dollar amount of chargebacks
and/or retrieval requests in excess of 1% of the average monthly dollar amount of your Card transactions; (ii) sales activity that
exceeds by 10% of the dollar volume indicated on the Application; or (iii) the dollar amount of returns equals 20% of the average
monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity, EVO and Bank to take
any action they deem necessary including but not limited to, suspension of processing privileges and establishment or increase in the
amount allocated to the Reserve Account and a reduction in the amount of provisional credit remitted to you in accordance with this
Agreement.
D. Credit. i. Credit Memoranda. You will issue a credit memorandum in any approved form, instead of making a cash advance, a
disbursement or a refund on any Card transaction. EVO or Bank will debit the Designated Account for the total face amount of each
credit memorandum submitted to EVO and Bank. You will not submit a credit memorandum relating to any Sales Draft not originally
submitted to EVO and Bank, nor will you submit a credit memorandum that exceeds the amount of the original Sales Draft. You will
within the time period specified by the Rules, provide a credit memorandum or credit statement for every return of goods or
forgiveness of debt for services which were the subject of a Card transaction. ii. Revocation of Credit. EVO or Bank may refuse to
accept any Sales Draft, and EVO and Bank may revoke prior acceptance of a Sales Draft in the following circumstances: (a) the
transaction giving rise to the Sales Draft was not made in compliance with this Agreement, the Laws or the Rules; (b) the Cardholder
disputes his liability to EVO and Bank for any reason, including but not limited to a contention that the Cardholder did not receive the
goods or services, that the goods or services provided were not as ordered, or those chargeback rights enumerated in the Rules; or
(c) the transaction giving rise to the Sales Draft was not directly between you and the Cardholder. You will pay EVO and Bank any
amount previously credited to you for a Sales Draft not accepted by EVO and Bank or where accepted, is revoked by EVO and Bank.
E. Reprocessing. Notwithstanding any authorization or request from a Cardholder, you will not re-enter or reprocess any transaction
which has been charged back.
F. Miscellaneous. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a
Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not
authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of
performing your obligations under this Agreement.
5. Other Types of Transactions.
A. Debit Card Processing Services. You may elect to accept debit cards, and said election should be made by you on the
accompanying Merchant Application. If you elect to accept debit cards, the following terms and conditions apply to you. Debit
Sponsor shall act as your sponsor with respect to the participation of point-of-sale terminals owned, controlled, and/or operated by
you (the Covered Terminals) in each of the following debit card networks (Networks): Accel, AFFN, Alaska Option, Interlink,
Maestro, NYCE, Pulse, Shazam, Star, CU24, and Tyme, which Networks may be changed from time-to-time by Debit Sponsor or
EVO without notice. You may also have access to other debit networks that do not require a sponsor. EVO will provide you with the
ability to access the Networks at the Covered Terminals for the purpose of authorizing debit card transactions from cards issued by
the members of the respective Networks, and EVO will provide connection to such Networks, terminal applications, settlement, and
reporting activities (collectively, the Services). You will comply with all federal, state, and local laws, rules, regulations and
ordinances (Applicable Laws) and with all by-laws, regulations, rules, and operating guidelines of the Networks (Network Rules).
You will execute and deliver any application, participation, or membership agreement or other document necessary to enable Debit
Sponsor to act as sponsor for you in each Network, and you shall obtain all consents, approvals, authorizations, or orders of any
governmental agency or body required for the execution, delivery, and performance of this Agreement. You agree to utilize the debit
card services in accordance with this Agreement, its exhibits or attachments, and EVOs instructions and specifications, and to
provide EVO with the necessary data in the proper format to enable EVO to properly furnish the Services. Copies of the relevant
agreements or operating regulations shall be made available to you upon request. You will provide prompt written notice to EVO in
the event that you are subject to any of the following: i. Conviction for a felony offense or any other crime involving moral turpitude; ii.
Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practice on your part; iii.
Bankruptcy filing or petition; iv. Federal or state tax lien; v. Any material adverse change in your assets, operations, or condition,
financial or otherwise; vi. The threat or filing of any litigation against you, the outcome of which reasonably could have a material
adverse effect on your continuing operations; vii. Administrative or enforcement proceeding commenced by any state or federal
regulatory agency, including any banking or securities agency or entity operating an EBT Network, that reasonably could have a
material adverse effect on your continuing operations; or viii. Any disciplinary action taken by any Network against you or any of your
principals. EVO may terminate or suspend in its discretion Debit Sponsors sponsorship of you in any Network or modify the provision
of Services to you: i. Immediately upon notice to you of the occurrence of any of the conditions set forth in items (i), (ii), (iii), (v), or
(viii) in the immediately preceding paragraph or if Debit Sponsors authority to participate in such Network or act as your sponsor in
such Network is terminated by such Network; ii. Thirty (30) days after written notice by EVO to you of the occurrence of any of the
conditions set forth in items (iv), (vi), or (vii) in the immediately preceding paragraph or if Debit Sponsor terminated its membership or
participation in such Network; iii. Immediately upon notice to you in the event any financial statement, representation, warranty,
statement or certificate furnished is materially false or misleading; or iv. Immediately upon notice to you of the occurrence of any other
circumstance with respect to this Section that may reasonably be expected to have an adverse effect on EVO. The parties hereto
acknowledge and agree that EVO shall pay Debit Sponsor any and all fees related to Debit Sponsors sponsorship of you in the
Networks; provided, however, that in the event EVO fails to pay such amounts, Debit Sponsor shall be entitled to recover all such
amounts directly from you and you agree to pay all such amounts. You shall not in any way indicate that Debit Sponsor endorses
your activities, products, or services. Debit Sponsor and you are and shall remain independent contractors of one another, and
neither they, nor their respective individual employees, shall have or hold themselves out as having any power to bind the other to
any third party. Nothing contained in this section shall be construed to create or constitute a partnership, joint venture,
employer-employee, or agency relationship between Debit Sponsor and you. You shall indemnify and hold harmless EVO and its
affiliates (including parents and subsidiaries), and their respective officers, directors, employees, successors and assigns, from and
against any and all direct or contingent losses, costs, claims, demands, and causes of action (including, without limitation, the cost of
investigating the claim, the cost of litigation, and reasonable attorneys fees including those of in-house counsel, whether or not legal
proceedings are instituted) paid or incurred by or on behalf of EVO as a result of your violation of any of the terms of this Section,
Network Rules, or Applicable Laws, or otherwise arising from or related to Debit Sponsors sponsorship of you in any Network. In the
event that Debit Sponsors sponsorship of you in any Network is terminated prior to the termination of this Agreement, EVO may
assign Debit Sponsors rights and obligations hereunder to a third party. All provisions in this section necessary to enforce the rights
and obligations of the parties contained in this section shall survive the termination of Debit Sponsors debit sponsorship of you under
this Agreement.
B. Mail/Telephone Order. EVO and Bank caution against mail orders or telephone orders or any transaction in which the Cardholder
and Card are not present (mail/telephone orders) due to the high incidence of customer disputes. You will obtain the expiration date
of the Card for a mail/telephone order and submit the expiration date when obtaining authorization of the Card transaction. For
mail/telephone order transactions, you will type or print legibly on the signature line the following as applicable: telephone order or
TO or mail order or MO. You must promptly notify EVO and Bank if your retail/mail order/telephone order mix changes from the
percentages represented to EVO and Bank in the Merchant Application. EVO and Bank may cease accepting mail/telephone order
transactions, or limit their acceptance of such transactions, or increase their fees if this mix changes. Bank will release funds to
Merchant five (5) business days after the transaction date for mail/telephone orders. Merchant agrees to use and retain proof of a
traceable delivery system as means of shipment of product to the customer. Merchant agrees that transactions will not be processed
until products are shipped to the Cardholder. Merchant agrees to pay a charge of $0.05 per AVS transaction, if applicable. This
agreement may be immediately terminated by Bank if Merchant fails to comply with any of the terms of the agreement.
C. Recurring Transactions. For recurring transactions, you must obtain a written request from the Cardholder for the goods and
services to be charged to the Cardholders account, the frequency of the recurring charge, and the duration of time during which such
charges may be made. You will not complete any recurring transaction after receiving: (i) a cancellation notice from the Cardholder,
(ii) notice from EVO or Bank, or (iii) a response that the Card is not to be honored. You must print legibly on the Sales Draft the words
Recurring Transaction.
D. Multiple Sales Drafts. You will include a description and total amount of goods and services purchased in a single transaction on a
single Sales Draft or transaction record, unless (i) partial payment is entered on the Sales Draft or transaction record and the balance
of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in
a Card transaction completed in accordance with this Agreement and the Rules.
E. Partial Completion. i. Prior Consent. You will not accept for payment by Card any amount representing a deposit or partial payment
for goods or services to be delivered in the future without the prior written consent of EVO or Bank. Such consent will be subject to
Banks final approval. The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future
without prior consent will be deemed a breach of this Agreement and cause for immediate termination, in addition to any other
remedies available under the Laws or Rules. ii. Acceptance. If you have obtained prior written consent, then you will complete such
Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one
Sales Draft when making a deposit with a Card and a second Sales Draft when paying the balance. You will note upon the Sales
Draft the words deposit or balance as appropriate. You will not deposit the Sales Draft labeled balance until the goods have
been delivered to Cardholder or you have fully performed the services.
F. Future Delivery. You will not present any Sales Draft or other memorandum to Bank for processing whether by electronic means
which relates to the sale of goods or services for future delivery without EVO or Banks, prior written authorization. Such consent will
be subject to Banks final approval. If EVO or Bank have given such consent, you represent and warrant to EVO and Bank that you
will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services. You will maintain
sufficient working capital to provide for the delivery of goods or services at the agreed upon future date, independent of any credit or
proceeds resulting from sales drafts or other memoranda taken in connection with future delivery transactions.
G. Electronic Commerce Transactions. You may process electronic commerce (EC) transactions only if you have so indicated on
the Application, and only if you have obtained EVOs consent. If you submit EC transactions without our consent, we may
immediately terminate this Agreement. If you have indicated on the Application that you will be submitting EC transactions, you
acknowledge that you have reviewed the Payment Card Industry Data Security Standards (PCI DSS), Visas Cardholder Information
Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and to the extent that they apply to you, you agree
to comply with, and ensure such transactions comply with, the terms of each. You understand that transactions processed via EC are
high risk and subject to a higher incidence of chargebacks. You are liable for all chargebacks and losses related to EC transactions,
whether or not: i) EC transactions have been encrypted; and ii) you have obtained consent to engage in such transactions. Encryption
is not a guarantee of payment and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction. All
communication costs related to EC transactions are your responsibility. You understand that EVO will not manage the EC
telecommunications link and that it is your responsibility to manage that link. All EC transactions will be settled by Bank into a
depository institution of the United States in U.S. currency. i. Requirements. For goods to be shipped on EC transactions, you may
obtain authorization up to 7 calendar days prior to the shipment date. You need not obtain a second authorization if the Sales Draft
amount is within 15% of the authorized amount, provided that the additional amount represents shipping costs. Further, your web site
must contain all of the following information: i) complete description of the goods or services offered, ii) returned merchandise and
refund policy, iii) customer service contact, including electronic mail address and/or telephone number, iv) transaction currency (such
as U.S. or Canadian dollars), v) export or legal restrictions, if known, and vi) delivery policy. If you store cardholder account numbers,
expiration dates, and other personal cardholder data in the database, you must follow PCI DSS, CISP and SDP guidelines on
securing such data. ii. If you accept EC transactions, you must: install and maintain a working network firewall to protect data
accessible via the Internet; keep security patches up-to-date; encrypt stored data and data sent over open networks; use and update
anti-virus software; restrict access to data by business need-to-know; assign a unique ID to each person with computer access to
data; not use vendor-supplied defaults for system passwords and other security parameters; track access to data by unique ID;
regularly test security systems and processes; maintain a policy that addresses information security for employees and contractors;
and restrict physical access to Cardholder information. When outsourcing administration of information assets, networks, or data you
must retain legal control of proprietary information and use limited need-to-know access to such assets, networks or data. Further,
you must reference the protection of cardholder information and compliance with the PCI DSS, CISP and SDP Rules in contracts with
other service providers. You understand that failure to comply with this Section may result in fines and you agree to indemnify
and reimburse EVO and Bank immediately for any fine imposed due to your breach of this Section.
H. American Express, JCB and Diners Club Transactions. Upon your request, EVO will provide authorization and/or data capture
service, for JCB, Diners Club and American Express transactions. By signing this Merchant Agreement, Merchant agrees to abide by
the terms and conditions of Diners Club, American Express, and JCB. Merchant understands that the Diners Club Agreement will be
sent to the business entity indicated on this application. By accepting the Diners Club Card for goods and/or services, Merchant
agrees to be bound by the terms and conditions of the Agreement. EVO and Bank are not responsible for funding such transactions.
Initial setup fees may apply.
l. Cash Advances. You will not deposit any transaction for purposes of obtaining or providing a cash advance. You agree that any
such deposit shall be grounds for immediate termination.
J. Prohibited Transactions. You will not accept or deposit any fraudulent or illegal transaction and you may not, under any
circumstances, present for deposit directly or indirectly, a transaction which originated with any other merchant or any other source.
You will not, under any circumstance, deposit telemarketing transactions unless you obtain Bank, EVO prior written consent. Such
consent will be subject to Banks final approval. If you process any such transactions, you may be immediately terminated and EVO
or Bank may hold funds and/or increase the amount allocated to the Reserve Account and/or deduct from the amount of provisional
credit that would otherwise be allocated to you. Further, you may be subject to Visa, MasterCard or Discover reporting requirements.
6. Designated Account.
A. Establishment and Authority. Merchant will establish and maintain an account at an ACH receiving depository institution approved
by Bank and EVO (Designated Account). Merchant will maintain sufficient funds in the Designated Account to satisfy all obligations,
including fees, contemplated by this Agreement. Merchant irrevocably authorizes Bank and EVO to debit the Designated Account for
chargebacks, recoupments, adjustments, fines, fees and any other penalties or amounts owed under this Agreement, and
irrevocably authorizes Bank and EVO to debit the Designated Account for any amount owed to Bank and EVO under this Agreement
other than the amounts directly attributable to the settlement of transactions. You also authorize EVO and Bank to debit the
Merchant Account for any fees due such vendor or agent under this Agreement. This authority will remain in effect for at least 2
years after termination of this Agreement whether or not you have notified EVO and Bank of a change to the Designated Account.
Merchant must obtain prior written consent from Bank or EVO to change the Designated Account. If Merchant does not get that
consent, EVO or Bank may immediately terminate the Agreement and may take other action necessary, as determined by them
within their sole discretion.
B. Deposit. Bank will deposit all Sales Drafts to the Designated Account subject to the other provisions of this Agreement. The funds
represented by Sales Drafts will be deposited 3 business days following EVOs receipt of the Sales Draft, except for mail
order/telephone order and electronic commerce transactions, which will be deposited 5 business days following receipt of the Sales
Draft. Business Day means Monday through Friday, excluding holidays observed by the Federal Reserve Bank of New York.
Merchant authorizes Bank and EVO to initiate reversal or adjustment entries and initiate or suspend such entries as may be
necessary to grant Merchant provisional credit for any entry. You authorize and appoint Bank and EVO to act as your agent to collect
Card transaction amounts from the Card issuing bank. As the collecting agent, Bank and EVO in their sole discretion, may grant you
provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by Bank and subject to all
chargebacks.
C. Asserted Errors. You must promptly examine all statements relating to the Designated Account, and immediately notify EVO and
Bank in writing of any errors. Your written notice must include: (i) Merchant name and account number. (ii) the dollar amount of the
asserted error, (iii) a description of the asserted error, and (iv) an explanation of why you believe an error exists and the cause of it, if
known. That written notice must be received by EVO and Bank within 30 calendar days after you received the periodic statement
containing the asserted error. Your failure to notify EVO and Bank of any error within 30 days constitutes a waiver of any claim
relating to that error. You may not make any claim against EVO or Bank for any loss or expense relating to any asserted error for 60
calendar days immediately following our receipt of your written notice. During that 60 day period, EVO and Bank will be entitled to
investigate the asserted error.
D. Indemnity. You will indemnify and hold EVO and Bank harmless for any action they take against the Designated Account, the
Reserve Account, or any other account pursuant to this Agreement.
E. ACH Authorization. You authorize EVO and Bank to initiate debit/credit entries to the Designated Account, the Reserve Account,
or any other account maintained by you at any institution, all in accordance with this Agreement and the ACH Authorization on the
attached Exhibit B, Merchant Authorizations . The ACH Authorization will remain in effect beyond termination of this Agreement. In
the event you change the Designated Account, you will execute a new ACH Authorization.
7. Security Interests, Reserve Account, Recoupment and Set-Off.
A. Security Interests. i. Security Agreement. This Agreement is a security agreement under the Uniform Commercial Code. You grant
to EVO and Bank a security interest in and lien upon: (i) all funds at any time in the Designated Account, regardless of the source of
such funds; (ii) all funds at any time in the Reserve Account, regardless of the source of such funds; (iii) present and future Sales
Drafts; and (iv) any and all amounts which may be due to you under this Agreement including, without limitation, all rights to receive
any payments or credits under this Agreement (collectively, the Secured Assets). You agree to provide other collateral or security
to EVO and Bank to secure your obligations under this Agreement upon EVO or Banks request. These security interests and liens
will secure all of your obligations under this Agreement and any other agreements now existing or later entered into between you
and EVO or Bank. This security interest may be exercised by EVO or Bank without notice or demand of any kind by making an
immediate withdrawal or freezing the secured assets. ii. Perfection. Upon request of EVO or Bank, you will execute one or more
financing statements or other documents to evidence this security interest. You represent and warrant that no other person or entity
has a security interest in the Secured Assets. Further, with respect to such security interests and liens, EVO and Bank will have all
rights afforded under the Uniform Commercial Code, any other applicable law and in equity. You will obtain from EVO and Bank
written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract
of recoupment and EVO and Bank are not required to file a motion for relief from the automatic stay in any bankruptcy proceeding in
order for EVO or Bank to realize on any of its collateral (including any Reserve Account). Nevertheless you agree not to contest or
object to any motion for relief from the automatic stay filed by EVO or Bank. You authorize EVO or Bank and appoint EVO or Bank
your attorney in fact to sign your name to any financing statement used for the perfection of any security interest or lien granted
hereunder.
B. Reserve Account. i. Establishment. A non-interest bearing deposit account (Reserve Account) has been established and is
maintained at Bank or one of its affiliates with sums sufficient to satisfy your current and future merchant obligations as determined
by EVO and Bank. You authorize EVO and Bank to debit the Designated Account or any other account you have at Bank or any
other financial institution to establish or maintain funds in the Reserve Account. Bank or EVO may deposit into the Reserve Account
funds it would otherwise be obligated to pay you, for the purpose of establishing, maintaining or increasing the Reserve Account in
accordance with this Section, if it determines such action is reasonably necessary to protect its interests. ii. Authorizations. EVO and
Bank may, without notice to you, apply deposits in the Reserve Account against any outstanding amounts you owe under this
Agreement or any other agreement between you and EVO or Bank. Also, EVO and Bank may exercise their rights under this
Agreement against the Reserve Account to collect any amounts due to EVO or Bank including, without limitation, rights of set-off and
recoupment. In the event you submit a merchant application to EVO through the use of Insta-App, and EVO does not receive a
completed written merchant application within 2 business days, you authorize EVO or Bank to hold all of your funds in the Reserve
Account until the completed written merchant application and other required documentation is received by EVO. iii. Funds. Funds in
the Reserve Account will remain in the Reserve Account for 270 calendar days following the later of termination of this Agreement or
the last activity in your account, provided, however, that you will remain liable to EVO and Bank for all liabilities occurring beyond
such 270 day period. After the expiration of the 270 day period EVO will provide you with written notification via nationally recognized
delivery service advising you that the 270 day period has expired, requesting that you provide EVO with an address where the funds
you have remaining in the Reserve Account should be delivered, and stating that in the event you fail to respond to this notification
within 30 days, EVO will begin deducting a flat fee of $95 each month from the funds you have remaining in the Reserve Account. In
the event you fail to respond to the notification, the $95 fee will then be deducted each month from the funds you have remaining in
the Reserve Account. This fee will offset the administrative, clerical, legal, and risk management costs incurred by EVO to monitor
the funds you have remaining in the Reserve Account beyond the 270 day period, and includes all monthly minimums and any other
contractual fees that would ordinarily be assessed against your account pursuant to the terms of this Agreement. You agree that
prior to the expiration of the 270 days, you will not use any funds you have in the Reserve Account for any purpose, including but not
limited to paying chargebacks, fees, fines, or other amounts you owe to EVO and/or Bank under this Agreement. EVO and Bank
(and not Merchant) shall have control of the Reserve Account. iv. Assurance. In the event of a bankruptcy proceeding and the
determination by the court that this Agreement is assumable under Bankruptcy Code 365, as amended from time to time, you must
maintain funds in the Reserve Account in an amount satisfactory to EVO and Bank.
C. Recoupment and Set Off. EVO and Bank have the right of recoupment and set-off. This means that they may offset or recoup any
outstanding/uncollected amounts owed by you from: (i) any amounts they would otherwise be obligated to deposit into the
Designated Account; (ii) any other amounts Bank or EVO may owe you under this Agreement or any other agreement; and (iii) any
funds in the Designated Account or the Reserve Account. You acknowledge that in the event of a bankruptcy proceeding, in order for
you to provide adequate protection under Bankruptcy Code 362 to EVO and Bank, you must create or maintain the Reserve
Account as required by EVO and Bank, and EVO and Bank must have the right to offset against the Reserve Account for any and all
obligations which you may owe to EVO and Bank, without regard to whether the obligations relate to Sales Drafts initiated or created
before or after the filing of the bankruptcy petition.
D. Remedies Cumulative. The rights and remedies conferred upon EVO and Bank in this Agreement, at law or in equity, are not
intended to be exclusive of each other. Rather, each and every right of EVO and Bank under this Agreement, at law or in equity, will
be cumulative and concurrent and in addition to every other right.
8. Fees and Other Amounts Owed EVO and Bank.
A. Fees and Taxes. You will pay EVO fees for services, forms and equipment in accordance with the rates set forth on the
Application. In addition, you will pay EVO a fee for research it performs at your request in an amount equal to $200 per hour, or $5
per statement. Such fees will be calculated and debited from the Designated Account once each business day or month for the
previous business days or months activity or will be netted out from the funds due you attributable to Sales Drafts presented to EVO
and Bank. EVO and Bank reserve the right to adjust the fees set forth on the Application and in this Section, in accordance with
Section 16.H, below. If you do not have an active account at the time of the request, payment by certified check or money order must
be received prior to the release of the requested document copies or research results. You are also obligated to pay all taxes, and
other charges imposed by any governmental authority on the services provided under this Agreement. With respect to Visa,
MasterCard and Discover products, you may elect to accept credit cards or debit/prepaid cards or both. You shall so elect on the
Merchant Application being completed contemporaneously herewith. You agree to pay and your account(s) will be charged pursuant
to Section 6.A of this Agreement for any additional fees incurred as a result of your subsequent acceptance of transactions with any
Visa, MasterCard or Discover product that you have elected not to accept.
B. Other Amounts Owed EVO and Bank. You will immediately pay EVO and Bank any amount incurred by EVO and Bank
attributable to this Agreement including but not limited to chargebacks, fines and penalties imposed by Visa, MasterCard or Discover
(including but not limited to fines and penalties related to PCI DSS), non-sufficient fund fees, and ACH debits that overdraw the
Designated Account or Reserve Account, or are otherwise dishonored. You authorize EVO and Bank to debit via ACH the
Designated Account or any other account you have at Bank or at any other financial institution for any amount you owe EVO or Bank
under this Agreement or under any other contract, note, guaranty, instrument or dealing of any kind now existing or later entered into
between you and EVO or Bank, whether your obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In
the event EVO or Bank demand sums due or such ACH does not fully reimburse EVO and Bank for the amount owed, you will
immediately pay EVO and Bank such amount.
C. Merchant Supply/Replacement Program. Merchant is responsible for purchasing all supplies required to properly process credit
card transactions (sales slips, printer rolls, etc.). If Merchant elects to participate in EVOs Supply/Replacement Program, Merchant
understands that it is entitled to a maximum of 6 rolls of paper and 2 printer ribbons per month. It is Merchants responsibility to
contact EVO each month to order supplies. EVO will only provide Merchant with supplies for the current month, and Merchants
failure to place an order with EVO will constitute a waiver of its right to receive supplies for that month under the
Supply/Replacement Program. Quantity of supplies provided is at the discretion of EVO. Enrollment in EVOs Supply/Replacement
Program also entitles Merchant to free refurbished replacement equipment after EVO has collected 3 monthly payments from
Merchant (merchant is responsible for all shipping costs). A separate program is required for each terminal Merchant may have. If
Merchants terminal type is unavailable, at EVOs discretion, a substitute may be provided. EVOs Supply/Replacement Program
does not include labor, parts, or expenses necessary to replace or repair equipment damaged by fire, flood, accident, improper
voltages, misuse of equipment, service performed by persons other than EVO representatives, and/or failure to continually maintain
a suitable operating environment for the equipment. EVO may choose to cancel Merchants Supply/Replacement Program at any
time without notice. This program is nontransferable without written consent. Maintenance is not available for any wireless terminals.
9. Application, Indemnification, Limitation of Liability.
A. Application. You represent and warrant to EVO and Bank that all information in the Application is correct and complete. You must
notify EVO in writing of any changes to the information in the Application, including but not limited to: any additional location or new
business, the identity of principals and/or owners, the form of business organization (e.g., sole proprietorship, partnership, etc.), type
of goods and services provided and how sales are completed (i.e., by telephone, mail, or in person at your place of business). The
notice must be received by EVO within 10 business days of the change. You will provide updated information to EVO within a
reasonable time upon request. You are liable to EVO and Bank (as applicable) for all losses and expenses incurred by EVO and/or
Bank arising out of your failure to report changes to it. Bank and EVO may immediately terminate this Agreement upon notification
by you of a change to the information in the Application.
B. Indemnification. You will hold harmless and indemnify EVO and Bank, their employees and agents (i) against all claims by third
parties arising out of this Agreement, and (ii) for all attorneys fees and other costs and expenses paid or incurred by EVO or Bank in
the enforcement of the Agreement, including but not limited to those resulting from any breach by you of this Agreement and those
related to any bankruptcy proceeding.
C. Limitation of Liability. Any liability of EVO or Bank under this Agreement, whether to you or any other party, whatever the basis of
the liability, shall not exceed in the aggregate the difference between (i) the amount of fees paid by you to EVO and Bank during the
month in which the transaction out of which the liability arose occurred, and (ii) assessments, chargebacks, and offsets against such
fees which arose during such month. In the event more than one month is involved, the aggregate amount of EVO and Banks
liability shall not exceed the lowest amount determined in accord with the foregoing calculation for anyone month involved. Neither
EVO, Bank nor their agents, officers, directors, or employees shall be jointly liable to you under this Agreement or liable for indirect,
special, or consequential damages. Neither EVO nor Bank will be responsible or liable for any damages you incur that arise from a
terminal that has been downloaded by a third party.
D. Performance. EVO and Bank will perform all services in accordance with this Agreement. EVO and Bank make no warranty,
express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. EVO and Bank
disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. No party will be liable to the
others for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control
and without the, fault or negligence of such party. Neither EVO nor Bank shall be liable for the acts or omissions of any third party.
E. Representations By Salespersons. All salespersons are independent contractors, and are not agents, employees, joint venturers,
or partners of EVO or Bank. Any and all representations and/or statements made by a salesperson are made by them in their
capacity as an independent contractor, and cannot be imputed to EVO or Bank. EVO and Bank have absolutely no liability or
responsibility for any representations and/or statements made to you by any sales representative.
10. Representations and Warranties. You represent and warrant to EVO and Bank at the time of execution and during the
term of this Agreement the following:
A. Information. You are a corporation, limited liability company, partnership or sole proprietorship validly existing and organized in
the United States. All information contained on the Application or any other document submitted to EVO or Bank is true and
complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Merchant. You are not
engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Application, unless you
obtain the prior written consent of EVO and Bank.
B. Entity Power. Merchant and the person signing this Agreement have the power to execute and perform this Agreement. This
Agreement and your performance hereunder will not violate any law, or conflict with any other agreement to which you are subject.
C. No Litigation or Termination. There is no action, suit or proceeding pending or to your knowledge threatened which if decided
adversely would impair your ability to carry on your business substantially as now conducted or which would adversely affect your
financial condition or operations. You have never entered into an agreement with a third party to perform credit or debit card
processing which has been terminated by that third party.
D. Transactions. All transactions are bona fide. No transaction involves the use of a Card for any purpose other than the purchase of
goods or services from you nor does it involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in
writing with EVO and Bank. EVO may choose to cancel Merchants Supply/Replacement Program at any time without notice. This
program is non-transferable without written consent. Maintenance is not available for any wireless terminals.
E. Rule Compliance. You will comply with the Laws and Rules. Without limiting the generality of the foregoing, each sales
transaction submitted hereunder and the handling, retention, and storage of information related thereto, will comply with the rules
and regulations of Visa, MasterCard, Discover, and any other card association or network organization related to cardholder and
transaction information security, including, without limitation Payment Card Industry Data Security Standards (PCI DSS), Visas
Cardholder Information Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and Payment Application
Best Practices.
11. Audit and financial information.
A. Audit. You authorize EVO or Bank to audit your records to confirm compliance with this Agreement, as amended from time to
time. You will obtain, and will submit a copy of, an audit of your business when requested by EVO or Bank.
B. Financial Information. i. Authorizations. You authorize EVO or Bank to make any business or personal credit inquiries they
consider necessary to review the acceptance and continuation of this Agreement. You also authorize any person or credit reporting
agency to compile information to answer, those credit inquiries and to furnish that information to EVO and Bank. ii. Documents. You
will provide EVO or Bank personal and business financial statements and other financial information as requested from time to time.
If requested, you will furnish within 120 calendar days after the end of each fiscal year to EVO and Bank a financial statement of
profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year.
12. Third Parties.
A. Services. You may be using special services or software provided by a third party to assist you in processing
transactions, including authorizations and settlements, or accounting functions. You are responsible for ensuring compliance with the
requirements of any third party in using their products. This includes making sure you have and comply with any software updates.
EVO and Bank have no responsibility for any transaction until that point in time EVO or Bank receive data about the transaction.
B. Use of Terminals Provided by Others. You will notify EVO and Bank immediately if you decide to use electronic authorization or
data capture terminals or software provided by any entity other than EVO and Bank or its authorized designee (Third Party
Terminals) to process transactions. If you elect to use Third Party Terminals or payment software provided by others you agree (i)
the third party providing the terminals will be your agent in the delivery of Card transactions to EVO and Bank; and (ii) to assume full
responsibility and liability for any failure of that third party to comply with the Rules and this Agreement. Neither EVO nor Bank will be
responsible for any losses or additional fees incurred by you as result of any error by a third party agent, or a malfunction of your
credit card terminal, including but not limited to Third Party Terminals.
13. Term and Termination.
A. Term. This Agreement shall become effective (Effective Date) only upon acceptance by EVO and Bank, or upon the submission
of a transaction by you to EVO, whichever event shall occur first. The Agreement will remain in effect for a period of 3 years (Initial
Term) and will renew for successive 1 year terms (Renewal Term) unless terminated as set forth below.
B. Termination. The Agreement may be terminated by Merchant at the end of the Initial Term or any Renewal Term by giving written
notice of an intention not to renew at least 90 calendar days before the end of the Initial Term or any Renewal Term. Further, this
Agreement may be terminated by EVO or Bank at any time with or without notice and with or without cause.
C. Action upon Termination. i. Terminated Merchant File. You acknowledge that Bank is required to report your business name and
the name of Merchants principals to Visa, MasterCard and Discover when Merchant is terminated due to the reasons listed in the
Rules. ii. Designated Account. All your obligations regarding accepted Sales Drafts will survive termination. You must maintain in the
Designated Account and the Reserve Account enough funds to cover all chargebacks, deposit charges, refunds and fees incurred by
you for a reasonable time, but in any event not less than the time specified in this agreement. You authorize EVO and Bank to
charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Designated
Account or Reserve Account is not adequate, you will pay EVO and Bank the amount you owe it upon demand, together with all
costs and expenses incurred to collect that amount, including reasonable attorneys fees. iii. Equipment. Within 14 business days of
the date of termination, you must return all equipment owned by EVO and immediately pay EVO, any amounts you owe them for
equipment costs. iv. Early Termination. If you terminate this Agreement before the end of the Initial Term, or before the end of any
successive Renewal Term, in violation of the procedure set forth in Section 13.B above, or if EVO or Bank terminates this Agreement
based upon your failure to comply with the terms and conditions contained herein, you will immediately pay EVO, as liquidated
damages, a closure fee of $295. You agree that this fee is not a penalty, but rather is reasonable in light of the financial harm caused
by the early termination of this Agreement.
14. Compliance With Laws And Rules.
You agree to comply with all rules and operating regulations issued from time to time by MasterCard, Visa and Discover (Rules),
and any policies and procedures provided by EVO or Bank. You further agree to comply with all applicable state, federal and local
laws, rules and regulations (Laws), as amended from time to time. You will assist EVO and Bank in complying with all Laws and
Rules now or hereafter applicable to any Card transaction or this Agreement. You will execute and deliver to EVO and Bank all
instruments it may from time to time reasonably deem necessary. Without limiting the generality of the foregoing, you agree to
comply with and be bound by the rules and regulations of Visa, MasterCard, Discover, and any other card association or network
organization related to cardholder and transaction information security, including without limitation, Payment Card Industry Data
Security Standards (PCI DSS), Visas Cardholder Information Security Program and MasterCards Site Data Protection Program.
You agree to cooperate at your sole expense with any request for an audit or investigation by EVO, Bank, a card association or
network organization in connection with cardholder and transaction information security. You may also be assessed a monthly or
annual PCI fee, which will appear as a separate item on your monthly statement. This fee is assessed by EVO in connection with
EVOs efforts to comply with the PCI DSS and does not ensure your compliance with the PCI DSS or any law, rule or regulation
related to cardholder data security. The payment of such fee shall not relieve you of your responsibility to comply with all rules and
regulations related to cardholder data security, including without limitation the PCI DSS. Without limiting the generality of the
foregoing, you agree to use information obtained from a cardholder in connection with a card transaction solely for the purpose of
processing a transaction with that cardholder or attempting to re-present a chargeback with respect to such transaction. You will
indemnify and hold EVO and Bank harmless from any fines and penalties issued by Visa, MasterCard, Discover or any card
association or network organization and any other fees and costs arising out of or relating to the processing of transactions by EVO
and Bank at your location(s) and will reimburse EVO and Bank for any losses incurred by EVO with respect to any such fines,
penalties, fees and costs. You also agree that you will comply with all applicable laws, rules and regulations related to the truncation
or masking of cardholder numbers and expiration dates on transaction receipts from transactions processed at your location(s),
including without limitation the Fair and Accurate Credit Transactions Act and applicable state laws (Truncation Laws). As between
you, on the one hand, and EVO and Bank, on the other hand, you shall be solely responsible for complying with all Truncation Laws
and will indemnify and hold EVO and Bank harmless from any claim, loss or damage resulting from a violation of Truncation Laws as
a result of transactions processed at your location(s).
15. Use of Trademarks and Confidentiality.
A. Use of Trademarks. Your use of Visa, MasterCard and Discover trademarks must fully comply with the Rules. Your use of Visa,
MasterCard, Discover, or other cards promotional materials will not indicate directly or indirectly that Visa, MasterCard, Discover, or
others endorse any goods or services other than their own and you may not refer to Visa, MasterCard, Discover or others in stating
eligibility for your products or services.
B. Merchant is hereby granted a limited non-exclusive, non-transferable license to use Discover brands, emblems, trademarks,
and/or logos that identify Discover cards (Discover Program Marks). You are prohibited from using the Discover Program Marks
other than as expressly authorized in writing. You shall not use the Discover Program Marks other than to display decals, signage,
advertising and other forms depicting the Discover Program Marks that are provided to you pursuant to this Agreement or otherwise
approved in advance in writing. You may use the Discover Program marks only to promote the services covered by the Discover
Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that all
such uses by you must be approved in advance in writing. You shall not use the Discover Program Marks in such a way that
customers could believe that the products or services offered by you are sponsored or guaranteed by the owners of the Discover
Program Marks. You recognize that you have no ownership rights in the Discover Program Marks and shall not assign to any third
party any of the rights to use the Discover Program Marks.
C. Confidentiality. i. Cardholder Information. You will not disclose to any third party Cardholders account information or other
personal information except to an agent of yours assisting in completing a Card transaction, or as required by law. You must destroy
all material containing Cardholders account numbers, Card imprints, Sales Drafts, credit vouchers and (except for Sales Drafts
maintained in accordance with this Agreement, Laws. and the Rules). Further, you must take all steps reasonably necessary to
ensure Cardholder information is not disclosed or otherwise misused. ii. Prohibitions. You will not use for your own purposes, will not
disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of
EVO and Bank (including without limitation the terms of this Agreement), and will safeguard such information and data by using the
same degree of care that you use to protect your own confidential information. iii. Disclosure. You authorize EVO and Bank to
disclose your name and address to any third party who requests such information or otherwise has a reason to know such
information.
D. Return to EVO. All promotional materials, advertising displays, emblems, Sales Drafts, credit memoranda and other forms
supplied to you and not purchased by you or consumed in use will remain the property of EVO and Bank and will be immediately
returned to EVO upon termination of this Agreement. You will be fully liable for all loss, cost, and expense suffered or incurred by
EVO and Bank arising out of the failure to return or destroy such materials following termination.
16. General Provisions.
A. Entire Agreement. This Agreement, as amended from time to time, including the Rules and the completed Merchant Application,
all of which are incorporated into this Agreement, constitute the entire agreement among the four parties hereto (other than any prior
agreements to which Merchant is not a party), and all prior or other agreements to which Merchant is a party or representations,
written or oral, made to Merchant are superseded. This Agreement may be signed in one or more counterparts, all of which, taken
together, will constitute one agreement.
B. Exclusivity. During the initial and any renewal term of this Agreement, you will not enter into an agreement with any other entity
that provides credit card or debit card processing services similar to those provided by EVO and Bank as contemplated by this
Agreement without EVO and Banks written consent.
C. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any
provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party. Any alteration or strikeover in the text of this pre-printed Agreement will have no
binding effect, and will not be deemed to amend this Agreement. This Agreement may be executed by facsimile, and facsimile
copies of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals.
D. Assignability. This Agreement may be assigned by EVO or Bank but may not be assigned by Merchant directly or by operation of
law, without the prior written consent of EVO and Bank. Any such assignment in breach of this provision shall be null and void, ab
initio. If Merchant nevertheless assigns this Agreement without the consent of EVO and Bank, the Agreement shall be binding upon
the assignee. Bank will be immediately informed in writing of any such assignment.
E. Notices. Any written notice under this Agreement will be deemed received upon the earlier of: (i) actual receipt or (ii) five calendar
days after being deposited in the United States mail, and addressed to the last address shown on the records of the sender.
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH
Kaltenbornweg 1-3
50679 Cologne, Germany
+49 221 99577 777 Support.deucs@db.com
Debit sponsorship provided by either Wells Fargo Bank N.A. or JP Morgan Chase N.A., as applicable.
F. Bankruptcy. You will immediately notify EVO and Bank (i) of any bankruptcy, receivership, insolvency or similar action or
proceeding initiated by or against Merchant or any of its principals and (ii) if it could reasonably be expected that any such action or
proceeding will be initiated by or against Merchant or any of its principals. You will include EVO and Bank on the list and matrix of
creditors as filed with the Bankruptcy Court whether or not a claim may exist at the time of filing. Failure to comply with either of
these requirements will be cause for immediate termination or any other action available to EVO and Bank under applicable Rules or
Law.
G. Choice of Law/Attorneys Fees/Venue/Jury Trial Waiver. Should it be necessary for EVO or Bank to defend or enforce any of its
rights under this Agreement in any collection or legal action, you agree to reimburse EVO and/or Bank, or any agent acting on their
behalf, as applicable, for all costs and expenses including reasonable attorneys fees, as a result of such collection or legal action.
Without limiting the generality of the foregoing, you agree to reimburse EVO and/or Bank, or any agent acting on their behalf, as
applicable, for all costs and expenses, including reasonable attorneys fees, incurred by EVO, Bank or their agent in any action
arising out of, relating to, or in connection with this Agreement, without regard to whether there has been an adjudication on the
merits in any such action. You waive trial by jury with respect to any litigation arising out of, relating to, or in connection with this
Agreement. EVO, Bank, you, and Guarantor agree that any and all disputes or controversies of any nature whatsoever (whether in
contract, tort or otherwise) arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from
this Agreement, or (iii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement,
shall be governed by the laws of the State of New York, notwithstanding any conflicts of laws rules (other than NY General
Obligations Law Section 5-1401), and shall be resolved, on an individual basis without resort to any form of class action and not
consolidated with the claims of any other parties. EVO, Bank, you, and Guarantor agree that all actions arising out of, relating to, or
in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation
or enforceability of the choice of law and venue provisions of this Agreement shall only be brought in either the courts of the State of
New York sitting in Suffolk County or in the United States District Court for the Eastern District of New York, and hereby irrevocably
and unconditionally submit to the personal jurisdiction of those courts in any such action.
H. Amendments. EVO will notify you on your monthly statement of any new or increased fees. Except for any fee increases imposed
by Visa, MasterCard, Discover, or the debit network, you may cancel the Agreement without charge if you object to the fee changes
in writing within 30 days. If you do not object, and continue to process for 30 days after receiving notice of the fee change, you will be
deemed to assent to the new fees.
I. Severability and Waiver. If any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the
remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the
failure nor delay by EVO or Bank to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or
estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by the waiving party.
J. Independent Contractors. EVO, Bank and Merchant will be deemed independent contractors and will not be considered agent,
joint venture or partner of the other, except as provided in 6.C and 7.A(ii).
K. Employee Actions. You are responsible for your employees actions while in your employment.
L. Survival. Sections 4.A, 4.B, 6, 7, 8, 9, 13.C, 15, and 16.G will survive termination of this Agreement.
17. E-statements.
A. Merchant Account Statement. Upon opening a merchant processing account you will automatically have access to your monthly
merchant account statement electronically (an E-statement) by viewing it on line. This Agreement governs the electronic availability
of your E-statement. You agree to abide by the terms and conditions stated herein, and to access E-statements, as well as all
notices and initial and future disclosures regarding your E-statement, online. You acknowledge that by the third business day of each
month, your E-statement will be available online. You will be notified in writing of the website where you can access your
E-statement. Your E-statement will be accessible only through a secure Log In screen which requires the use of a unique User ID
and Password. You understand that you will not receive a monthly merchant account statement by U.S. postal mail, and that making
your E-statement available online constitutes EVOs compliance with delivery of your monthly merchant account statement. You can
print the E-statement or save the file to your computers hard drive or other disk in order to retain a copy of the E-statement. Your
E-statement can be accessed through the E-statement link for three consecutive months from the date the E-statement is first made
available. You further agree to receive all initial and periodic account disclosure information in an electronic format. All such
disclosures shall be provided in a clear, conspicuous manner that you can print and/or save using the hardware and software
specified below. You are also entitled to obtain a paper copy of all disclosures or E-statements upon written request, however such a
request does not constitute a withdrawal of consent to receive monthly E-statements. A fee may apply for providing such
documentation. You understand that you may withdraw your consent to receive E-statements, or change your email address, upon
30 days written notice to EVO. Please note that a withdrawal of consent does not apply to an E-statement that was furnished before
the date on which the withdrawal of consent becomes effective. PC Requirements: Viewing your E-statement on line requires a
personal computer with Adobe Acrobat and internet access through a standard web browser. The product version levels must be
supported by the respective vendors (i.e., Adobe, Apple, Mozilla, and Microsoft). EVO is not obligated to ensure that your
E-statements are accessible through outdated vendor products. In the event you are unable to access any of the information that has
been made available by EVO in electronic format, it is your obligation to notify EVO in writing immediately.
B. Reporting Of Errors. You must promptly view all E-statements, and immediately notify EVO in writing of any errors. Your written
notice must include: (i) Merchant name and account number; (ii) the dollar amount of the asserted error; (iii) a description of the
asserted error; and (iv) an explanation of why you believe an error exists and the cause of it, if known. That written notice must be
received by EVO within 30 calendar days after the E-statement containing the asserted error is first made available. Your failure to
notify EVO of any error within 30 days constitutes a waiver of any claim relating to that error. You may not make any claim against
EVO for any loss or expense relating to any asserted error for 60 calendar days immediately following EVOs receipt of your written
notice. During that 60 day period, EVO will be entitled to investigate the asserted error and we will notify you of the results of our
investigation.
C. Miscellaneous. EVO shall not be responsible for: (i) consequential or incidental damages caused by services performed by EVO,
its agents, or your Internet Service Provider (ISP); (ii) damages arising from unauthorized access to E-statement services; or (iii)
any costs associated with updating, modifying or terminating your software or hardware. EVO may change, suspend, or terminate
all or any aspect of this service upon written notice to you.
18. Electronic Signatures.
Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed
documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when:
(a) your electronic signature is associated with the Agreement and related documents, (b) you consent and intend to be bound by
the Agreement and related documents, and (c) the Agreement is delivered in an electronic record capable of retention by the
recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic
documents shall be governed by the provisions of E-Sign. By pressing Submit, you agree: (i) that the Agreement and related
documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related
documents, (iii) that you have the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize EVO
or Bank to conduct an investigation of your credit history with various credit reporting and credit bureau agencies for the sole
purpose of determining the approval of the applicant for merchant status or equipment leasing. This information is kept strictly
confidential and will not be released.
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MERCHANT PROCESSING AGREEMENT
This document, Merchant Processing Agreement (the Agreement), accompanies the document Merchant Application (Merchant
Application) and includes the Terms and Conditions set forth below (the Terms and Conditions) together with the terms and
conditions of the Merchant Application. The bank (Bank) identified in this Agreement is a member of Visa USA, Inc. (Visa) and
MasterCard International, Inc. (MasterCard), and is Deutsche Bank AG, New York branch. EVO Merchant Services, LLC d/b/a EVO
(EVO) is a registered independent sales organization of Visa and a member service provider of MasterCard. This Agreement is
between EVO, Bank, and the merchant (or you) identified in the Merchant Application (Merchant). Merchant and EVO agree that
the rights and obligations contained in this Agreement do not apply to Bank with respect to Discover transactions. To the extent
Merchant accepts Discover cards, the provisions in this Agreement with respect to Discover apply if Merchant does not have a
separate agreement with Discover. In such case, Merchant will also be enabled to accept JCB and Diners Club cards under the
Discover network and such transactions will be processed at the same fee rate as Merchants Discover transactions are processed.
Any references to the Debit Sponsor shall refer to the debit sponsors identified below.
RECITALS
Merchant desires to accept credit cards (Cards) validly issued by members of Visa, MasterCard, and Discover. Bank and EVO
desire to provide credit card processing services to Merchant. Therefore, Merchant, EVO and Bank agree as follows:
TERMS AND CONDITIONS
1. Honoring Cards.
A. Without Discrimination. You will honor, without discrimination, any Card properly tendered by a Cardholder.
Cardholder means a person possessing a Card and purporting to be the person in whose name the Card is issued. You will not
establish a minimum or maximum transaction amount as a condition for honoring a Card.
B. Cardholder Identification. You will identify the Cardholder and check the expiration date and signature on each Card. You will not
honor any Card if: (i) the Card has expired, (ii) the signature on the sales draft does not correspond with the signature on the Card, or
(iii) the account number embossed on the Card does not match the account number on the Cards magnetic strip (as printed in
electronic form) or the account number listed on a current Electronic Warning Bulletin file. You may not require a Cardholder to
provide personal information, such as a home or business telephone number, a home or business address, or a drivers license
number as a condition for honoring a Card unless permitted under the Laws and Rules (defined in Section 14, below).
C. Card Recovery. You will use your best efforts to retain any Card: (i) on Visa Cards if the printed four digits below the embossed
account number do not match the first four digits of the embossed account number; (ii) if you are advised by EVO or Bank (or a
designee) the issuer of the Card or the designated voice authorization center to retain it: (iii) if you have reasonable grounds to
believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or (iv) if, for MasterCard Cards, the
embossed account number, indent printed account number and encoded account number do not match or the Card does not have a
MasterCard hologram on the lower right corner of the Card face.
D. Surcharges. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card,
except as permitted by the Rules. This paragraph does not prohibit you from offering a discount from the standard price to induce a
person to pay by cash, check or similar means rather than by using a Card.
E. Return Policy. You will properly disclose to the Cardholder, at the time of the Card transaction and in accordance with the Rules,
any limitation you have on accepting returned merchandise.
F. No Claim Against Cardholder. You will not have any claim against or right to receive payment from a Cardholder unless EVO and
Bank refuses to accept the Sales Draft (as defined in Section 3) or revokes a prior acceptance of the Sales Draft after receipt or a
chargeback or otherwise. You will not accept any payments from a Cardholder relating to previous charges for merchandise or
services included in a Sales Draft, and if you receive any such payments you promptly will remit them to EVO and Bank.
G. Disputes With Cardholders. All disputes between you and any Cardholder relating to any Card transaction will be settled between
you and the Cardholder. Neither EVO nor Bank bear any responsibility for such transactions.
2. Authorization.
A. Required on all Transactions. You will obtain a prior authorization for the total amount of a transaction via electronic terminal or
device before completing any transaction, and you will not process any transaction that has not been authorized. You will follow any
instructions received during the authorization process. Upon receipt of authorization you may consummate only the transaction
authorized and must note on the Sales Draft the authorization number. Where authorization is obtained, you will be deemed to
warrant the true identity of the customer as the Cardholder.
B. Effect. Authorizations are not a guarantee of acceptance or payment of the Sales Draft. Authorizations do not waive any provisions
of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card.
C. Unreadable Magnetic Stripes. When you present Card transactions for authorization electronically, and if your terminal is unable to
read the magnetic stripe on the card, you will obtain an imprint of the card and the Cardholders signature on the imprinted draft
before presenting the Sales Draft to EVO and Bank for processing. Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions.
3. Presentment of Sales Drafts.
A. Forms. You will use a Sales Draft (Sales Draft) or other form approved by EVO and Bank to document each Card transaction.
Each Sales Draft will be legibly imprinted with: (i) Merchants name, location and account number; (ii) the information embossed on
the Card presented by the Cardholder (either electronically or manually); (iii) the date of the transaction; (iv) a brief description of the
goods or services involved; (v) the transaction authorization number; (vi) the total amount of the sale including any applicable taxes,
or credit transaction; and (vii) adjacent to the signature line, a notation that all sales are final, if applicable.
B. Signatures. Each Sales Draft must be signed by the Cardholder unless the Card transaction is a valid mail/telephone order Card
transaction which fully complies with the requirements set forth in this Agreement. You may not require the Cardholder to sign the
Sales Draft before you enter the final transaction amount in the Sales Draft.
C. Reproduction of Information. If the following information is not legibly imprinted on the Sales Draft, you will legibly inscribe on the
Sales Draft before submitting it to EVO and Bank: (i) the Cardholders name: (ii) account number (iii) expiration date of the Card and
(iv) the Merchants name and place of business. Additionally, for MasterCard transactions you will legibly inscribe the name of the
bank issuing the Card as it appears on the face of the Card.
D. Delivery and Retention of Sales Drafts. You will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at
the time of the transaction. You will retain the merchant copy of the Sales Draft or credit memorandum for at least 3 years following
the date of completion of the Card transaction (or such longer period as the Rules require).
E. Electronic Transmission. In using electronic authorization and/or data capture services, you will enter the data related to a sales or
credit transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the
transaction is completed (unless otherwise permitted by the Rules). Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions and, at EVOs sole discretion, the deposit of the funds received for such sales or credit
transaction into the Reserve Account. If you provide your own electronic terminal or similar device, such terminal must meet EVO and
Banks requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or
magnetic stripe reading terminal will be transmitted by you to EVO and Bank or their agent in the form EVO and Bank from time to
time specify or as required under the Rules. If EVO or Bank requests a copy of a Sales Draft, credit voucher or other transaction
evidence, you will provide it within 24 hours following the request.
4. Deposit of Sales Drafts and Funds Due Merchant.
A. Deposit of Funds. i. Deposits. You agree that this Agreement is a contract of financial accommodation within the meaning of the
Bankruptcy Code, 11 U.S.C. 365 as amended from time to time. Subject to this Section, Bank will deposit to the Designated
Account (defined in section 6 below) funds evidenced by Sales Drafts (whether evidenced in writing or by electronic means)
complying with the terms of this Agreement and the Rules and will provide you provisional credit for such funds (less recoupment of
any credit(s), adjustments, fines, chargebacks, or fees). You shall not be entitled to credit for any indebtedness that arises out of a
transaction not processed in accordance with the terms of this Agreement or the rules and regulations of a card association or
network organization. You acknowledge that your obligation to EVO and Bank for all amounts owed under this Agreement arises out
of the same transaction as EVO and Banks obligation to deposit funds to the Designated Account. ii. Provisional Credit.
Notwithstanding the previous sentences, under no circumstance will EVO or Bank be responsible for processing credits or
adjustments related to Sales Drafts not originally processed by EVO and Bank. All Sales Drafts and deposits are subject to audit and
final checking by EVO and Bank and may be adjusted for inaccuracies. You acknowledge that all credits provided to you are
provisional and subject to chargebacks, recoupment, adjustments, fines and fees: (i) in accordance with the Rules; (ii) for any of your
obligations to EVO and Bank; and (iii) in any other situation constituting suspected fraud or a breach of this Agreement, whether or
not a transaction is charged back by the Card issuer. EVO and Bank may elect, but are not required, to grant conditional credit for
individual or groups of any funds evidenced by Sales Drafts. Final credit for those conditional funds will be granted within EVO and
Banks sole discretion. iii. Processing Limits. EVO and Bank may impose a cap on the volume and ticket amount of Sales Drafts that
they will process for you, as indicated to you by EVO or Bank. This limit may be changed by EVO or Bank upon written notice to you.
B. Chargebacks. You are fully liable for all transactions returned for whatever reason, otherwise known as chargebacks. You will
pay on demand the amount of all chargebacks. Authorization is granted to offset from incoming transactions and to debit the
Designated Account, the Reserve Account (defined in Section 7, below) or any other account held at Bank or at any other financial
institution the amount of all chargebacks. You will fully cooperate in complying with the Rules regarding chargebacks.
C. Excessive Activity. Your presentation to EVO and Bank of Excessive Activity will be a breach of this Agreement and cause for
immediate termination of this agreement. Excessive Activity means, during any monthly period: (i) the dollar amount of chargebacks
and/or retrieval requests in excess of 1% of the average monthly dollar amount of your Card transactions; (ii) sales activity that
exceeds by 10% of the dollar volume indicated on the Application; or (iii) the dollar amount of returns equals 20% of the average
monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity, EVO and Bank to take
any action they deem necessary including but not limited to, suspension of processing privileges and establishment or increase in the
amount allocated to the Reserve Account and a reduction in the amount of provisional credit remitted to you in accordance with this
Agreement.
D. Credit. i. Credit Memoranda. You will issue a credit memorandum in any approved form, instead of making a cash advance, a
disbursement or a refund on any Card transaction. EVO or Bank will debit the Designated Account for the total face amount of each
credit memorandum submitted to EVO and Bank. You will not submit a credit memorandum relating to any Sales Draft not originally
submitted to EVO and Bank, nor will you submit a credit memorandum that exceeds the amount of the original Sales Draft. You will
within the time period specified by the Rules, provide a credit memorandum or credit statement for every return of goods or
forgiveness of debt for services which were the subject of a Card transaction. ii. Revocation of Credit. EVO or Bank may refuse to
accept any Sales Draft, and EVO and Bank may revoke prior acceptance of a Sales Draft in the following circumstances: (a) the
transaction giving rise to the Sales Draft was not made in compliance with this Agreement, the Laws or the Rules; (b) the Cardholder
disputes his liability to EVO and Bank for any reason, including but not limited to a contention that the Cardholder did not receive the
goods or services, that the goods or services provided were not as ordered, or those chargeback rights enumerated in the Rules; or
(c) the transaction giving rise to the Sales Draft was not directly between you and the Cardholder. You will pay EVO and Bank any
amount previously credited to you for a Sales Draft not accepted by EVO and Bank or where accepted, is revoked by EVO and Bank.
E. Reprocessing. Notwithstanding any authorization or request from a Cardholder, you will not re-enter or reprocess any transaction
which has been charged back.
F. Miscellaneous. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a
Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not
authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of
performing your obligations under this Agreement.
5. Other Types of Transactions.
A. Debit Card Processing Services. You may elect to accept debit cards, and said election should be made by you on the
accompanying Merchant Application. If you elect to accept debit cards, the following terms and conditions apply to you. Debit
Sponsor shall act as your sponsor with respect to the participation of point-of-sale terminals owned, controlled, and/or operated by
you (the Covered Terminals) in each of the following debit card networks (Networks): Accel, AFFN, Alaska Option, Interlink,
Maestro, NYCE, Pulse, Shazam, Star, CU24, and Tyme, which Networks may be changed from time-to-time by Debit Sponsor or
EVO without notice. You may also have access to other debit networks that do not require a sponsor. EVO will provide you with the
ability to access the Networks at the Covered Terminals for the purpose of authorizing debit card transactions from cards issued by
the members of the respective Networks, and EVO will provide connection to such Networks, terminal applications, settlement, and
reporting activities (collectively, the Services). You will comply with all federal, state, and local laws, rules, regulations and
ordinances (Applicable Laws) and with all by-laws, regulations, rules, and operating guidelines of the Networks (Network Rules).
You will execute and deliver any application, participation, or membership agreement or other document necessary to enable Debit
Sponsor to act as sponsor for you in each Network, and you shall obtain all consents, approvals, authorizations, or orders of any
governmental agency or body required for the execution, delivery, and performance of this Agreement. You agree to utilize the debit
card services in accordance with this Agreement, its exhibits or attachments, and EVOs instructions and specifications, and to
provide EVO with the necessary data in the proper format to enable EVO to properly furnish the Services. Copies of the relevant
agreements or operating regulations shall be made available to you upon request. You will provide prompt written notice to EVO in
the event that you are subject to any of the following: i. Conviction for a felony offense or any other crime involving moral turpitude; ii.
Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practice on your part; iii.
Bankruptcy filing or petition; iv. Federal or state tax lien; v. Any material adverse change in your assets, operations, or condition,
financial or otherwise; vi. The threat or filing of any litigation against you, the outcome of which reasonably could have a material
adverse effect on your continuing operations; vii. Administrative or enforcement proceeding commenced by any state or federal
regulatory agency, including any banking or securities agency or entity operating an EBT Network, that reasonably could have a
material adverse effect on your continuing operations; or viii. Any disciplinary action taken by any Network against you or any of your
principals. EVO may terminate or suspend in its discretion Debit Sponsors sponsorship of you in any Network or modify the provision
of Services to you: i. Immediately upon notice to you of the occurrence of any of the conditions set forth in items (i), (ii), (iii), (v), or
(viii) in the immediately preceding paragraph or if Debit Sponsors authority to participate in such Network or act as your sponsor in
such Network is terminated by such Network; ii. Thirty (30) days after written notice by EVO to you of the occurrence of any of the
conditions set forth in items (iv), (vi), or (vii) in the immediately preceding paragraph or if Debit Sponsor terminated its membership or
participation in such Network; iii. Immediately upon notice to you in the event any financial statement, representation, warranty,
statement or certificate furnished is materially false or misleading; or iv. Immediately upon notice to you of the occurrence of any other
circumstance with respect to this Section that may reasonably be expected to have an adverse effect on EVO. The parties hereto
acknowledge and agree that EVO shall pay Debit Sponsor any and all fees related to Debit Sponsors sponsorship of you in the
Networks; provided, however, that in the event EVO fails to pay such amounts, Debit Sponsor shall be entitled to recover all such
amounts directly from you and you agree to pay all such amounts. You shall not in any way indicate that Debit Sponsor endorses
your activities, products, or services. Debit Sponsor and you are and shall remain independent contractors of one another, and
neither they, nor their respective individual employees, shall have or hold themselves out as having any power to bind the other to
any third party. Nothing contained in this section shall be construed to create or constitute a partnership, joint venture,
employer-employee, or agency relationship between Debit Sponsor and you. You shall indemnify and hold harmless EVO and its
affiliates (including parents and subsidiaries), and their respective officers, directors, employees, successors and assigns, from and
against any and all direct or contingent losses, costs, claims, demands, and causes of action (including, without limitation, the cost of
investigating the claim, the cost of litigation, and reasonable attorneys fees including those of in-house counsel, whether or not legal
proceedings are instituted) paid or incurred by or on behalf of EVO as a result of your violation of any of the terms of this Section,
Network Rules, or Applicable Laws, or otherwise arising from or related to Debit Sponsors sponsorship of you in any Network. In the
event that Debit Sponsors sponsorship of you in any Network is terminated prior to the termination of this Agreement, EVO may
assign Debit Sponsors rights and obligations hereunder to a third party. All provisions in this section necessary to enforce the rights
and obligations of the parties contained in this section shall survive the termination of Debit Sponsors debit sponsorship of you under
this Agreement.
B. Mail/Telephone Order. EVO and Bank caution against mail orders or telephone orders or any transaction in which the Cardholder
and Card are not present (mail/telephone orders) due to the high incidence of customer disputes. You will obtain the expiration date
of the Card for a mail/telephone order and submit the expiration date when obtaining authorization of the Card transaction. For
mail/telephone order transactions, you will type or print legibly on the signature line the following as applicable: telephone order or
TO or mail order or MO. You must promptly notify EVO and Bank if your retail/mail order/telephone order mix changes from the
percentages represented to EVO and Bank in the Merchant Application. EVO and Bank may cease accepting mail/telephone order
transactions, or limit their acceptance of such transactions, or increase their fees if this mix changes. Bank will release funds to
Merchant five (5) business days after the transaction date for mail/telephone orders. Merchant agrees to use and retain proof of a
traceable delivery system as means of shipment of product to the customer. Merchant agrees that transactions will not be processed
until products are shipped to the Cardholder. Merchant agrees to pay a charge of $0.05 per AVS transaction, if applicable. This
agreement may be immediately terminated by Bank if Merchant fails to comply with any of the terms of the agreement.
C. Recurring Transactions. For recurring transactions, you must obtain a written request from the Cardholder for the goods and
services to be charged to the Cardholders account, the frequency of the recurring charge, and the duration of time during which such
charges may be made. You will not complete any recurring transaction after receiving: (i) a cancellation notice from the Cardholder,
(ii) notice from EVO or Bank, or (iii) a response that the Card is not to be honored. You must print legibly on the Sales Draft the words
Recurring Transaction.
D. Multiple Sales Drafts. You will include a description and total amount of goods and services purchased in a single transaction on a
single Sales Draft or transaction record, unless (i) partial payment is entered on the Sales Draft or transaction record and the balance
of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in
a Card transaction completed in accordance with this Agreement and the Rules.
E. Partial Completion. i. Prior Consent. You will not accept for payment by Card any amount representing a deposit or partial payment
for goods or services to be delivered in the future without the prior written consent of EVO or Bank. Such consent will be subject to
Banks final approval. The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future
without prior consent will be deemed a breach of this Agreement and cause for immediate termination, in addition to any other
remedies available under the Laws or Rules. ii. Acceptance. If you have obtained prior written consent, then you will complete such
Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one
Sales Draft when making a deposit with a Card and a second Sales Draft when paying the balance. You will note upon the Sales
Draft the words deposit or balance as appropriate. You will not deposit the Sales Draft labeled balance until the goods have
been delivered to Cardholder or you have fully performed the services.
F. Future Delivery. You will not present any Sales Draft or other memorandum to Bank for processing whether by electronic means
which relates to the sale of goods or services for future delivery without EVO or Banks, prior written authorization. Such consent will
be subject to Banks final approval. If EVO or Bank have given such consent, you represent and warrant to EVO and Bank that you
will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services. You will maintain
sufficient working capital to provide for the delivery of goods or services at the agreed upon future date, independent of any credit or
proceeds resulting from sales drafts or other memoranda taken in connection with future delivery transactions.
G. Electronic Commerce Transactions. You may process electronic commerce (EC) transactions only if you have so indicated on
the Application, and only if you have obtained EVOs consent. If you submit EC transactions without our consent, we may
immediately terminate this Agreement. If you have indicated on the Application that you will be submitting EC transactions, you
acknowledge that you have reviewed the Payment Card Industry Data Security Standards (PCI DSS), Visas Cardholder Information
Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and to the extent that they apply to you, you agree
to comply with, and ensure such transactions comply with, the terms of each. You understand that transactions processed via EC are
high risk and subject to a higher incidence of chargebacks. You are liable for all chargebacks and losses related to EC transactions,
whether or not: i) EC transactions have been encrypted; and ii) you have obtained consent to engage in such transactions. Encryption
is not a guarantee of payment and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction. All
communication costs related to EC transactions are your responsibility. You understand that EVO will not manage the EC
telecommunications link and that it is your responsibility to manage that link. All EC transactions will be settled by Bank into a
depository institution of the United States in U.S. currency. i. Requirements. For goods to be shipped on EC transactions, you may
obtain authorization up to 7 calendar days prior to the shipment date. You need not obtain a second authorization if the Sales Draft
amount is within 15% of the authorized amount, provided that the additional amount represents shipping costs. Further, your web site
must contain all of the following information: i) complete description of the goods or services offered, ii) returned merchandise and
refund policy, iii) customer service contact, including electronic mail address and/or telephone number, iv) transaction currency (such
as U.S. or Canadian dollars), v) export or legal restrictions, if known, and vi) delivery policy. If you store cardholder account numbers,
expiration dates, and other personal cardholder data in the database, you must follow PCI DSS, CISP and SDP guidelines on
securing such data. ii. If you accept EC transactions, you must: install and maintain a working network firewall to protect data
accessible via the Internet; keep security patches up-to-date; encrypt stored data and data sent over open networks; use and update
anti-virus software; restrict access to data by business need-to-know; assign a unique ID to each person with computer access to
data; not use vendor-supplied defaults for system passwords and other security parameters; track access to data by unique ID;
regularly test security systems and processes; maintain a policy that addresses information security for employees and contractors;
and restrict physical access to Cardholder information. When outsourcing administration of information assets, networks, or data you
must retain legal control of proprietary information and use limited need-to-know access to such assets, networks or data. Further,
you must reference the protection of cardholder information and compliance with the PCI DSS, CISP and SDP Rules in contracts with
other service providers. You understand that failure to comply with this Section may result in fines and you agree to indemnify
and reimburse EVO and Bank immediately for any fine imposed due to your breach of this Section.
H. American Express, JCB and Diners Club Transactions. Upon your request, EVO will provide authorization and/or data capture
service, for JCB, Diners Club and American Express transactions. By signing this Merchant Agreement, Merchant agrees to abide by
the terms and conditions of Diners Club, American Express, and JCB. Merchant understands that the Diners Club Agreement will be
sent to the business entity indicated on this application. By accepting the Diners Club Card for goods and/or services, Merchant
agrees to be bound by the terms and conditions of the Agreement. EVO and Bank are not responsible for funding such transactions.
Initial setup fees may apply.
l. Cash Advances. You will not deposit any transaction for purposes of obtaining or providing a cash advance. You agree that any
such deposit shall be grounds for immediate termination.
J. Prohibited Transactions. You will not accept or deposit any fraudulent or illegal transaction and you may not, under any
circumstances, present for deposit directly or indirectly, a transaction which originated with any other merchant or any other source.
You will not, under any circumstance, deposit telemarketing transactions unless you obtain Bank, EVO prior written consent. Such
consent will be subject to Banks final approval. If you process any such transactions, you may be immediately terminated and EVO
or Bank may hold funds and/or increase the amount allocated to the Reserve Account and/or deduct from the amount of provisional
credit that would otherwise be allocated to you. Further, you may be subject to Visa, MasterCard or Discover reporting requirements.
6. Designated Account.
A. Establishment and Authority. Merchant will establish and maintain an account at an ACH receiving depository institution approved
by Bank and EVO (Designated Account). Merchant will maintain sufficient funds in the Designated Account to satisfy all obligations,
including fees, contemplated by this Agreement. Merchant irrevocably authorizes Bank and EVO to debit the Designated Account for
chargebacks, recoupments, adjustments, fines, fees and any other penalties or amounts owed under this Agreement, and
irrevocably authorizes Bank and EVO to debit the Designated Account for any amount owed to Bank and EVO under this Agreement
other than the amounts directly attributable to the settlement of transactions. You also authorize EVO and Bank to debit the
Merchant Account for any fees due such vendor or agent under this Agreement. This authority will remain in effect for at least 2
years after termination of this Agreement whether or not you have notified EVO and Bank of a change to the Designated Account.
Merchant must obtain prior written consent from Bank or EVO to change the Designated Account. If Merchant does not get that
consent, EVO or Bank may immediately terminate the Agreement and may take other action necessary, as determined by them
within their sole discretion.
B. Deposit. Bank will deposit all Sales Drafts to the Designated Account subject to the other provisions of this Agreement. The funds
represented by Sales Drafts will be deposited 3 business days following EVOs receipt of the Sales Draft, except for mail
order/telephone order and electronic commerce transactions, which will be deposited 5 business days following receipt of the Sales
Draft. Business Day means Monday through Friday, excluding holidays observed by the Federal Reserve Bank of New York.
Merchant authorizes Bank and EVO to initiate reversal or adjustment entries and initiate or suspend such entries as may be
necessary to grant Merchant provisional credit for any entry. You authorize and appoint Bank and EVO to act as your agent to collect
Card transaction amounts from the Card issuing bank. As the collecting agent, Bank and EVO in their sole discretion, may grant you
provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by Bank and subject to all
chargebacks.
C. Asserted Errors. You must promptly examine all statements relating to the Designated Account, and immediately notify EVO and
Bank in writing of any errors. Your written notice must include: (i) Merchant name and account number. (ii) the dollar amount of the
asserted error, (iii) a description of the asserted error, and (iv) an explanation of why you believe an error exists and the cause of it, if
known. That written notice must be received by EVO and Bank within 30 calendar days after you received the periodic statement
containing the asserted error. Your failure to notify EVO and Bank of any error within 30 days constitutes a waiver of any claim
relating to that error. You may not make any claim against EVO or Bank for any loss or expense relating to any asserted error for 60
calendar days immediately following our receipt of your written notice. During that 60 day period, EVO and Bank will be entitled to
investigate the asserted error.
D. Indemnity. You will indemnify and hold EVO and Bank harmless for any action they take against the Designated Account, the
Reserve Account, or any other account pursuant to this Agreement.
E. ACH Authorization. You authorize EVO and Bank to initiate debit/credit entries to the Designated Account, the Reserve Account,
or any other account maintained by you at any institution, all in accordance with this Agreement and the ACH Authorization on the
attached Exhibit B, Merchant Authorizations . The ACH Authorization will remain in effect beyond termination of this Agreement. In
the event you change the Designated Account, you will execute a new ACH Authorization.
7. Security Interests, Reserve Account, Recoupment and Set-Off.
A. Security Interests. i. Security Agreement. This Agreement is a security agreement under the Uniform Commercial Code. You grant
to EVO and Bank a security interest in and lien upon: (i) all funds at any time in the Designated Account, regardless of the source of
such funds; (ii) all funds at any time in the Reserve Account, regardless of the source of such funds; (iii) present and future Sales
Drafts; and (iv) any and all amounts which may be due to you under this Agreement including, without limitation, all rights to receive
any payments or credits under this Agreement (collectively, the Secured Assets). You agree to provide other collateral or security
to EVO and Bank to secure your obligations under this Agreement upon EVO or Banks request. These security interests and liens
will secure all of your obligations under this Agreement and any other agreements now existing or later entered into between you
and EVO or Bank. This security interest may be exercised by EVO or Bank without notice or demand of any kind by making an
immediate withdrawal or freezing the secured assets. ii. Perfection. Upon request of EVO or Bank, you will execute one or more
financing statements or other documents to evidence this security interest. You represent and warrant that no other person or entity
has a security interest in the Secured Assets. Further, with respect to such security interests and liens, EVO and Bank will have all
rights afforded under the Uniform Commercial Code, any other applicable law and in equity. You will obtain from EVO and Bank
written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract
of recoupment and EVO and Bank are not required to file a motion for relief from the automatic stay in any bankruptcy proceeding in
order for EVO or Bank to realize on any of its collateral (including any Reserve Account). Nevertheless you agree not to contest or
object to any motion for relief from the automatic stay filed by EVO or Bank. You authorize EVO or Bank and appoint EVO or Bank
your attorney in fact to sign your name to any financing statement used for the perfection of any security interest or lien granted
hereunder.
B. Reserve Account. i. Establishment. A non-interest bearing deposit account (Reserve Account) has been established and is
maintained at Bank or one of its affiliates with sums sufficient to satisfy your current and future merchant obligations as determined
by EVO and Bank. You authorize EVO and Bank to debit the Designated Account or any other account you have at Bank or any
other financial institution to establish or maintain funds in the Reserve Account. Bank or EVO may deposit into the Reserve Account
funds it would otherwise be obligated to pay you, for the purpose of establishing, maintaining or increasing the Reserve Account in
accordance with this Section, if it determines such action is reasonably necessary to protect its interests. ii. Authorizations. EVO and
Bank may, without notice to you, apply deposits in the Reserve Account against any outstanding amounts you owe under this
Agreement or any other agreement between you and EVO or Bank. Also, EVO and Bank may exercise their rights under this
Agreement against the Reserve Account to collect any amounts due to EVO or Bank including, without limitation, rights of set-off and
recoupment. In the event you submit a merchant application to EVO through the use of Insta-App, and EVO does not receive a
completed written merchant application within 2 business days, you authorize EVO or Bank to hold all of your funds in the Reserve
Account until the completed written merchant application and other required documentation is received by EVO. iii. Funds. Funds in
the Reserve Account will remain in the Reserve Account for 270 calendar days following the later of termination of this Agreement or
the last activity in your account, provided, however, that you will remain liable to EVO and Bank for all liabilities occurring beyond
such 270 day period. After the expiration of the 270 day period EVO will provide you with written notification via nationally recognized
delivery service advising you that the 270 day period has expired, requesting that you provide EVO with an address where the funds
you have remaining in the Reserve Account should be delivered, and stating that in the event you fail to respond to this notification
within 30 days, EVO will begin deducting a flat fee of $95 each month from the funds you have remaining in the Reserve Account. In
the event you fail to respond to the notification, the $95 fee will then be deducted each month from the funds you have remaining in
the Reserve Account. This fee will offset the administrative, clerical, legal, and risk management costs incurred by EVO to monitor
the funds you have remaining in the Reserve Account beyond the 270 day period, and includes all monthly minimums and any other
contractual fees that would ordinarily be assessed against your account pursuant to the terms of this Agreement. You agree that
prior to the expiration of the 270 days, you will not use any funds you have in the Reserve Account for any purpose, including but not
limited to paying chargebacks, fees, fines, or other amounts you owe to EVO and/or Bank under this Agreement. EVO and Bank
(and not Merchant) shall have control of the Reserve Account. iv. Assurance. In the event of a bankruptcy proceeding and the
determination by the court that this Agreement is assumable under Bankruptcy Code 365, as amended from time to time, you must
maintain funds in the Reserve Account in an amount satisfactory to EVO and Bank.
C. Recoupment and Set Off. EVO and Bank have the right of recoupment and set-off. This means that they may offset or recoup any
outstanding/uncollected amounts owed by you from: (i) any amounts they would otherwise be obligated to deposit into the
Designated Account; (ii) any other amounts Bank or EVO may owe you under this Agreement or any other agreement; and (iii) any
funds in the Designated Account or the Reserve Account. You acknowledge that in the event of a bankruptcy proceeding, in order for
you to provide adequate protection under Bankruptcy Code 362 to EVO and Bank, you must create or maintain the Reserve
Account as required by EVO and Bank, and EVO and Bank must have the right to offset against the Reserve Account for any and all
obligations which you may owe to EVO and Bank, without regard to whether the obligations relate to Sales Drafts initiated or created
before or after the filing of the bankruptcy petition.
D. Remedies Cumulative. The rights and remedies conferred upon EVO and Bank in this Agreement, at law or in equity, are not
intended to be exclusive of each other. Rather, each and every right of EVO and Bank under this Agreement, at law or in equity, will
be cumulative and concurrent and in addition to every other right.
8. Fees and Other Amounts Owed EVO and Bank.
A. Fees and Taxes. You will pay EVO fees for services, forms and equipment in accordance with the rates set forth on the
Application. In addition, you will pay EVO a fee for research it performs at your request in an amount equal to $200 per hour, or $5
per statement. Such fees will be calculated and debited from the Designated Account once each business day or month for the
previous business days or months activity or will be netted out from the funds due you attributable to Sales Drafts presented to EVO
and Bank. EVO and Bank reserve the right to adjust the fees set forth on the Application and in this Section, in accordance with
Section 16.H, below. If you do not have an active account at the time of the request, payment by certified check or money order must
be received prior to the release of the requested document copies or research results. You are also obligated to pay all taxes, and
other charges imposed by any governmental authority on the services provided under this Agreement. With respect to Visa,
MasterCard and Discover products, you may elect to accept credit cards or debit/prepaid cards or both. You shall so elect on the
Merchant Application being completed contemporaneously herewith. You agree to pay and your account(s) will be charged pursuant
to Section 6.A of this Agreement for any additional fees incurred as a result of your subsequent acceptance of transactions with any
Visa, MasterCard or Discover product that you have elected not to accept.
B. Other Amounts Owed EVO and Bank. You will immediately pay EVO and Bank any amount incurred by EVO and Bank
attributable to this Agreement including but not limited to chargebacks, fines and penalties imposed by Visa, MasterCard or Discover
(including but not limited to fines and penalties related to PCI DSS), non-sufficient fund fees, and ACH debits that overdraw the
Designated Account or Reserve Account, or are otherwise dishonored. You authorize EVO and Bank to debit via ACH the
Designated Account or any other account you have at Bank or at any other financial institution for any amount you owe EVO or Bank
under this Agreement or under any other contract, note, guaranty, instrument or dealing of any kind now existing or later entered into
between you and EVO or Bank, whether your obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In
the event EVO or Bank demand sums due or such ACH does not fully reimburse EVO and Bank for the amount owed, you will
immediately pay EVO and Bank such amount.
C. Merchant Supply/Replacement Program. Merchant is responsible for purchasing all supplies required to properly process credit
card transactions (sales slips, printer rolls, etc.). If Merchant elects to participate in EVOs Supply/Replacement Program, Merchant
understands that it is entitled to a maximum of 6 rolls of paper and 2 printer ribbons per month. It is Merchants responsibility to
contact EVO each month to order supplies. EVO will only provide Merchant with supplies for the current month, and Merchants
failure to place an order with EVO will constitute a waiver of its right to receive supplies for that month under the
Supply/Replacement Program. Quantity of supplies provided is at the discretion of EVO. Enrollment in EVOs Supply/Replacement
Program also entitles Merchant to free refurbished replacement equipment after EVO has collected 3 monthly payments from
Merchant (merchant is responsible for all shipping costs). A separate program is required for each terminal Merchant may have. If
Merchants terminal type is unavailable, at EVOs discretion, a substitute may be provided. EVOs Supply/Replacement Program
does not include labor, parts, or expenses necessary to replace or repair equipment damaged by fire, flood, accident, improper
voltages, misuse of equipment, service performed by persons other than EVO representatives, and/or failure to continually maintain
a suitable operating environment for the equipment. EVO may choose to cancel Merchants Supply/Replacement Program at any
time without notice. This program is nontransferable without written consent. Maintenance is not available for any wireless terminals.
9. Application, Indemnification, Limitation of Liability.
A. Application. You represent and warrant to EVO and Bank that all information in the Application is correct and complete. You must
notify EVO in writing of any changes to the information in the Application, including but not limited to: any additional location or new
business, the identity of principals and/or owners, the form of business organization (e.g., sole proprietorship, partnership, etc.), type
of goods and services provided and how sales are completed (i.e., by telephone, mail, or in person at your place of business). The
notice must be received by EVO within 10 business days of the change. You will provide updated information to EVO within a
reasonable time upon request. You are liable to EVO and Bank (as applicable) for all losses and expenses incurred by EVO and/or
Bank arising out of your failure to report changes to it. Bank and EVO may immediately terminate this Agreement upon notification
by you of a change to the information in the Application.
B. Indemnification. You will hold harmless and indemnify EVO and Bank, their employees and agents (i) against all claims by third
parties arising out of this Agreement, and (ii) for all attorneys fees and other costs and expenses paid or incurred by EVO or Bank in
the enforcement of the Agreement, including but not limited to those resulting from any breach by you of this Agreement and those
related to any bankruptcy proceeding.
C. Limitation of Liability. Any liability of EVO or Bank under this Agreement, whether to you or any other party, whatever the basis of
the liability, shall not exceed in the aggregate the difference between (i) the amount of fees paid by you to EVO and Bank during the
month in which the transaction out of which the liability arose occurred, and (ii) assessments, chargebacks, and offsets against such
fees which arose during such month. In the event more than one month is involved, the aggregate amount of EVO and Banks
liability shall not exceed the lowest amount determined in accord with the foregoing calculation for anyone month involved. Neither
EVO, Bank nor their agents, officers, directors, or employees shall be jointly liable to you under this Agreement or liable for indirect,
special, or consequential damages. Neither EVO nor Bank will be responsible or liable for any damages you incur that arise from a
terminal that has been downloaded by a third party.
D. Performance. EVO and Bank will perform all services in accordance with this Agreement. EVO and Bank make no warranty,
express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. EVO and Bank
disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. No party will be liable to the
others for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control
and without the, fault or negligence of such party. Neither EVO nor Bank shall be liable for the acts or omissions of any third party.
E. Representations By Salespersons. All salespersons are independent contractors, and are not agents, employees, joint venturers,
or partners of EVO or Bank. Any and all representations and/or statements made by a salesperson are made by them in their
capacity as an independent contractor, and cannot be imputed to EVO or Bank. EVO and Bank have absolutely no liability or
responsibility for any representations and/or statements made to you by any sales representative.
10. Representations and Warranties. You represent and warrant to EVO and Bank at the time of execution and during the
term of this Agreement the following:
A. Information. You are a corporation, limited liability company, partnership or sole proprietorship validly existing and organized in
the United States. All information contained on the Application or any other document submitted to EVO or Bank is true and
complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Merchant. You are not
engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Application, unless you
obtain the prior written consent of EVO and Bank.
B. Entity Power. Merchant and the person signing this Agreement have the power to execute and perform this Agreement. This
Agreement and your performance hereunder will not violate any law, or conflict with any other agreement to which you are subject.
C. No Litigation or Termination. There is no action, suit or proceeding pending or to your knowledge threatened which if decided
adversely would impair your ability to carry on your business substantially as now conducted or which would adversely affect your
financial condition or operations. You have never entered into an agreement with a third party to perform credit or debit card
processing which has been terminated by that third party.
D. Transactions. All transactions are bona fide. No transaction involves the use of a Card for any purpose other than the purchase of
goods or services from you nor does it involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in
writing with EVO and Bank. EVO may choose to cancel Merchants Supply/Replacement Program at any time without notice. This
program is non-transferable without written consent. Maintenance is not available for any wireless terminals.
E. Rule Compliance. You will comply with the Laws and Rules. Without limiting the generality of the foregoing, each sales
transaction submitted hereunder and the handling, retention, and storage of information related thereto, will comply with the rules
and regulations of Visa, MasterCard, Discover, and any other card association or network organization related to cardholder and
transaction information security, including, without limitation Payment Card Industry Data Security Standards (PCI DSS), Visas
Cardholder Information Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and Payment Application
Best Practices.
11. Audit and financial information.
A. Audit. You authorize EVO or Bank to audit your records to confirm compliance with this Agreement, as amended from time to
time. You will obtain, and will submit a copy of, an audit of your business when requested by EVO or Bank.
B. Financial Information. i. Authorizations. You authorize EVO or Bank to make any business or personal credit inquiries they
consider necessary to review the acceptance and continuation of this Agreement. You also authorize any person or credit reporting
agency to compile information to answer, those credit inquiries and to furnish that information to EVO and Bank. ii. Documents. You
will provide EVO or Bank personal and business financial statements and other financial information as requested from time to time.
If requested, you will furnish within 120 calendar days after the end of each fiscal year to EVO and Bank a financial statement of
profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year.
12. Third Parties.
A. Services. You may be using special services or software provided by a third party to assist you in processing
transactions, including authorizations and settlements, or accounting functions. You are responsible for ensuring compliance with the
requirements of any third party in using their products. This includes making sure you have and comply with any software updates.
EVO and Bank have no responsibility for any transaction until that point in time EVO or Bank receive data about the transaction.
B. Use of Terminals Provided by Others. You will notify EVO and Bank immediately if you decide to use electronic authorization or
data capture terminals or software provided by any entity other than EVO and Bank or its authorized designee (Third Party
Terminals) to process transactions. If you elect to use Third Party Terminals or payment software provided by others you agree (i)
the third party providing the terminals will be your agent in the delivery of Card transactions to EVO and Bank; and (ii) to assume full
responsibility and liability for any failure of that third party to comply with the Rules and this Agreement. Neither EVO nor Bank will be
responsible for any losses or additional fees incurred by you as result of any error by a third party agent, or a malfunction of your
credit card terminal, including but not limited to Third Party Terminals.
13. Term and Termination.
A. Term. This Agreement shall become effective (Effective Date) only upon acceptance by EVO and Bank, or upon the submission
of a transaction by you to EVO, whichever event shall occur first. The Agreement will remain in effect for a period of 3 years (Initial
Term) and will renew for successive 1 year terms (Renewal Term) unless terminated as set forth below.
B. Termination. The Agreement may be terminated by Merchant at the end of the Initial Term or any Renewal Term by giving written
notice of an intention not to renew at least 90 calendar days before the end of the Initial Term or any Renewal Term. Further, this
Agreement may be terminated by EVO or Bank at any time with or without notice and with or without cause.
C. Action upon Termination. i. Terminated Merchant File. You acknowledge that Bank is required to report your business name and
the name of Merchants principals to Visa, MasterCard and Discover when Merchant is terminated due to the reasons listed in the
Rules. ii. Designated Account. All your obligations regarding accepted Sales Drafts will survive termination. You must maintain in the
Designated Account and the Reserve Account enough funds to cover all chargebacks, deposit charges, refunds and fees incurred by
you for a reasonable time, but in any event not less than the time specified in this agreement. You authorize EVO and Bank to
charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Designated
Account or Reserve Account is not adequate, you will pay EVO and Bank the amount you owe it upon demand, together with all
costs and expenses incurred to collect that amount, including reasonable attorneys fees. iii. Equipment. Within 14 business days of
the date of termination, you must return all equipment owned by EVO and immediately pay EVO, any amounts you owe them for
equipment costs. iv. Early Termination. If you terminate this Agreement before the end of the Initial Term, or before the end of any
successive Renewal Term, in violation of the procedure set forth in Section 13.B above, or if EVO or Bank terminates this Agreement
based upon your failure to comply with the terms and conditions contained herein, you will immediately pay EVO, as liquidated
damages, a closure fee of $295. You agree that this fee is not a penalty, but rather is reasonable in light of the financial harm caused
by the early termination of this Agreement.
14. Compliance With Laws And Rules.
You agree to comply with all rules and operating regulations issued from time to time by MasterCard, Visa and Discover (Rules),
and any policies and procedures provided by EVO or Bank. You further agree to comply with all applicable state, federal and local
laws, rules and regulations (Laws), as amended from time to time. You will assist EVO and Bank in complying with all Laws and
Rules now or hereafter applicable to any Card transaction or this Agreement. You will execute and deliver to EVO and Bank all
instruments it may from time to time reasonably deem necessary. Without limiting the generality of the foregoing, you agree to
comply with and be bound by the rules and regulations of Visa, MasterCard, Discover, and any other card association or network
organization related to cardholder and transaction information security, including without limitation, Payment Card Industry Data
Security Standards (PCI DSS), Visas Cardholder Information Security Program and MasterCards Site Data Protection Program.
You agree to cooperate at your sole expense with any request for an audit or investigation by EVO, Bank, a card association or
network organization in connection with cardholder and transaction information security. You may also be assessed a monthly or
annual PCI fee, which will appear as a separate item on your monthly statement. This fee is assessed by EVO in connection with
EVOs efforts to comply with the PCI DSS and does not ensure your compliance with the PCI DSS or any law, rule or regulation
related to cardholder data security. The payment of such fee shall not relieve you of your responsibility to comply with all rules and
regulations related to cardholder data security, including without limitation the PCI DSS. Without limiting the generality of the
foregoing, you agree to use information obtained from a cardholder in connection with a card transaction solely for the purpose of
processing a transaction with that cardholder or attempting to re-present a chargeback with respect to such transaction. You will
indemnify and hold EVO and Bank harmless from any fines and penalties issued by Visa, MasterCard, Discover or any card
association or network organization and any other fees and costs arising out of or relating to the processing of transactions by EVO
and Bank at your location(s) and will reimburse EVO and Bank for any losses incurred by EVO with respect to any such fines,
penalties, fees and costs. You also agree that you will comply with all applicable laws, rules and regulations related to the truncation
or masking of cardholder numbers and expiration dates on transaction receipts from transactions processed at your location(s),
including without limitation the Fair and Accurate Credit Transactions Act and applicable state laws (Truncation Laws). As between
you, on the one hand, and EVO and Bank, on the other hand, you shall be solely responsible for complying with all Truncation Laws
and will indemnify and hold EVO and Bank harmless from any claim, loss or damage resulting from a violation of Truncation Laws as
a result of transactions processed at your location(s).
15. Use of Trademarks and Confidentiality.
A. Use of Trademarks. Your use of Visa, MasterCard and Discover trademarks must fully comply with the Rules. Your use of Visa,
MasterCard, Discover, or other cards promotional materials will not indicate directly or indirectly that Visa, MasterCard, Discover, or
others endorse any goods or services other than their own and you may not refer to Visa, MasterCard, Discover or others in stating
eligibility for your products or services.
B. Merchant is hereby granted a limited non-exclusive, non-transferable license to use Discover brands, emblems, trademarks,
and/or logos that identify Discover cards (Discover Program Marks). You are prohibited from using the Discover Program Marks
other than as expressly authorized in writing. You shall not use the Discover Program Marks other than to display decals, signage,
advertising and other forms depicting the Discover Program Marks that are provided to you pursuant to this Agreement or otherwise
approved in advance in writing. You may use the Discover Program marks only to promote the services covered by the Discover
Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that all
such uses by you must be approved in advance in writing. You shall not use the Discover Program Marks in such a way that
customers could believe that the products or services offered by you are sponsored or guaranteed by the owners of the Discover
Program Marks. You recognize that you have no ownership rights in the Discover Program Marks and shall not assign to any third
party any of the rights to use the Discover Program Marks.
C. Confidentiality. i. Cardholder Information. You will not disclose to any third party Cardholders account information or other
personal information except to an agent of yours assisting in completing a Card transaction, or as required by law. You must destroy
all material containing Cardholders account numbers, Card imprints, Sales Drafts, credit vouchers and (except for Sales Drafts
maintained in accordance with this Agreement, Laws. and the Rules). Further, you must take all steps reasonably necessary to
ensure Cardholder information is not disclosed or otherwise misused. ii. Prohibitions. You will not use for your own purposes, will not
disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of
EVO and Bank (including without limitation the terms of this Agreement), and will safeguard such information and data by using the
same degree of care that you use to protect your own confidential information. iii. Disclosure. You authorize EVO and Bank to
disclose your name and address to any third party who requests such information or otherwise has a reason to know such
information.
D. Return to EVO. All promotional materials, advertising displays, emblems, Sales Drafts, credit memoranda and other forms
supplied to you and not purchased by you or consumed in use will remain the property of EVO and Bank and will be immediately
returned to EVO upon termination of this Agreement. You will be fully liable for all loss, cost, and expense suffered or incurred by
EVO and Bank arising out of the failure to return or destroy such materials following termination.
16. General Provisions.
A. Entire Agreement. This Agreement, as amended from time to time, including the Rules and the completed Merchant Application,
all of which are incorporated into this Agreement, constitute the entire agreement among the four parties hereto (other than any prior
agreements to which Merchant is not a party), and all prior or other agreements to which Merchant is a party or representations,
written or oral, made to Merchant are superseded. This Agreement may be signed in one or more counterparts, all of which, taken
together, will constitute one agreement.
B. Exclusivity. During the initial and any renewal term of this Agreement, you will not enter into an agreement with any other entity
that provides credit card or debit card processing services similar to those provided by EVO and Bank as contemplated by this
Agreement without EVO and Banks written consent.
C. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any
provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party. Any alteration or strikeover in the text of this pre-printed Agreement will have no
binding effect, and will not be deemed to amend this Agreement. This Agreement may be executed by facsimile, and facsimile
copies of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals.
D. Assignability. This Agreement may be assigned by EVO or Bank but may not be assigned by Merchant directly or by operation of
law, without the prior written consent of EVO and Bank. Any such assignment in breach of this provision shall be null and void, ab
initio. If Merchant nevertheless assigns this Agreement without the consent of EVO and Bank, the Agreement shall be binding upon
the assignee. Bank will be immediately informed in writing of any such assignment.
E. Notices. Any written notice under this Agreement will be deemed received upon the earlier of: (i) actual receipt or (ii) five calendar
days after being deposited in the United States mail, and addressed to the last address shown on the records of the sender.
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH
Kaltenbornweg 1-3
50679 Cologne, Germany
+49 221 99577 777 Support.deucs@db.com
Debit sponsorship provided by either Wells Fargo Bank N.A. or JP Morgan Chase N.A., as applicable.
F. Bankruptcy. You will immediately notify EVO and Bank (i) of any bankruptcy, receivership, insolvency or similar action or
proceeding initiated by or against Merchant or any of its principals and (ii) if it could reasonably be expected that any such action or
proceeding will be initiated by or against Merchant or any of its principals. You will include EVO and Bank on the list and matrix of
creditors as filed with the Bankruptcy Court whether or not a claim may exist at the time of filing. Failure to comply with either of
these requirements will be cause for immediate termination or any other action available to EVO and Bank under applicable Rules or
Law.
G. Choice of Law/Attorneys Fees/Venue/Jury Trial Waiver. Should it be necessary for EVO or Bank to defend or enforce any of its
rights under this Agreement in any collection or legal action, you agree to reimburse EVO and/or Bank, or any agent acting on their
behalf, as applicable, for all costs and expenses including reasonable attorneys fees, as a result of such collection or legal action.
Without limiting the generality of the foregoing, you agree to reimburse EVO and/or Bank, or any agent acting on their behalf, as
applicable, for all costs and expenses, including reasonable attorneys fees, incurred by EVO, Bank or their agent in any action
arising out of, relating to, or in connection with this Agreement, without regard to whether there has been an adjudication on the
merits in any such action. You waive trial by jury with respect to any litigation arising out of, relating to, or in connection with this
Agreement. EVO, Bank, you, and Guarantor agree that any and all disputes or controversies of any nature whatsoever (whether in
contract, tort or otherwise) arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from
this Agreement, or (iii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement,
shall be governed by the laws of the State of New York, notwithstanding any conflicts of laws rules (other than NY General
Obligations Law Section 5-1401), and shall be resolved, on an individual basis without resort to any form of class action and not
consolidated with the claims of any other parties. EVO, Bank, you, and Guarantor agree that all actions arising out of, relating to, or
in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation
or enforceability of the choice of law and venue provisions of this Agreement shall only be brought in either the courts of the State of
New York sitting in Suffolk County or in the United States District Court for the Eastern District of New York, and hereby irrevocably
and unconditionally submit to the personal jurisdiction of those courts in any such action.
H. Amendments. EVO will notify you on your monthly statement of any new or increased fees. Except for any fee increases imposed
by Visa, MasterCard, Discover, or the debit network, you may cancel the Agreement without charge if you object to the fee changes
in writing within 30 days. If you do not object, and continue to process for 30 days after receiving notice of the fee change, you will be
deemed to assent to the new fees.
I. Severability and Waiver. If any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the
remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the
failure nor delay by EVO or Bank to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or
estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by the waiving party.
J. Independent Contractors. EVO, Bank and Merchant will be deemed independent contractors and will not be considered agent,
joint venture or partner of the other, except as provided in 6.C and 7.A(ii).
K. Employee Actions. You are responsible for your employees actions while in your employment.
L. Survival. Sections 4.A, 4.B, 6, 7, 8, 9, 13.C, 15, and 16.G will survive termination of this Agreement.
17. E-statements.
A. Merchant Account Statement. Upon opening a merchant processing account you will automatically have access to your monthly
merchant account statement electronically (an E-statement) by viewing it on line. This Agreement governs the electronic availability
of your E-statement. You agree to abide by the terms and conditions stated herein, and to access E-statements, as well as all
notices and initial and future disclosures regarding your E-statement, online. You acknowledge that by the third business day of each
month, your E-statement will be available online. You will be notified in writing of the website where you can access your
E-statement. Your E-statement will be accessible only through a secure Log In screen which requires the use of a unique User ID
and Password. You understand that you will not receive a monthly merchant account statement by U.S. postal mail, and that making
your E-statement available online constitutes EVOs compliance with delivery of your monthly merchant account statement. You can
print the E-statement or save the file to your computers hard drive or other disk in order to retain a copy of the E-statement. Your
E-statement can be accessed through the E-statement link for three consecutive months from the date the E-statement is first made
available. You further agree to receive all initial and periodic account disclosure information in an electronic format. All such
disclosures shall be provided in a clear, conspicuous manner that you can print and/or save using the hardware and software
specified below. You are also entitled to obtain a paper copy of all disclosures or E-statements upon written request, however such a
request does not constitute a withdrawal of consent to receive monthly E-statements. A fee may apply for providing such
documentation. You understand that you may withdraw your consent to receive E-statements, or change your email address, upon
30 days written notice to EVO. Please note that a withdrawal of consent does not apply to an E-statement that was furnished before
the date on which the withdrawal of consent becomes effective. PC Requirements: Viewing your E-statement on line requires a
personal computer with Adobe Acrobat and internet access through a standard web browser. The product version levels must be
supported by the respective vendors (i.e., Adobe, Apple, Mozilla, and Microsoft). EVO is not obligated to ensure that your
E-statements are accessible through outdated vendor products. In the event you are unable to access any of the information that has
been made available by EVO in electronic format, it is your obligation to notify EVO in writing immediately.
B. Reporting Of Errors. You must promptly view all E-statements, and immediately notify EVO in writing of any errors. Your written
notice must include: (i) Merchant name and account number; (ii) the dollar amount of the asserted error; (iii) a description of the
asserted error; and (iv) an explanation of why you believe an error exists and the cause of it, if known. That written notice must be
received by EVO within 30 calendar days after the E-statement containing the asserted error is first made available. Your failure to
notify EVO of any error within 30 days constitutes a waiver of any claim relating to that error. You may not make any claim against
EVO for any loss or expense relating to any asserted error for 60 calendar days immediately following EVOs receipt of your written
notice. During that 60 day period, EVO will be entitled to investigate the asserted error and we will notify you of the results of our
investigation.
C. Miscellaneous. EVO shall not be responsible for: (i) consequential or incidental damages caused by services performed by EVO,
its agents, or your Internet Service Provider (ISP); (ii) damages arising from unauthorized access to E-statement services; or (iii)
any costs associated with updating, modifying or terminating your software or hardware. EVO may change, suspend, or terminate
all or any aspect of this service upon written notice to you.
18. Electronic Signatures.
Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed
documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when:
(a) your electronic signature is associated with the Agreement and related documents, (b) you consent and intend to be bound by
the Agreement and related documents, and (c) the Agreement is delivered in an electronic record capable of retention by the
recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic
documents shall be governed by the provisions of E-Sign. By pressing Submit, you agree: (i) that the Agreement and related
documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related
documents, (iii) that you have the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize EVO
or Bank to conduct an investigation of your credit history with various credit reporting and credit bureau agencies for the sole
purpose of determining the approval of the applicant for merchant status or equipment leasing. This information is kept strictly
confidential and will not be released.
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MERCHANT PROCESSING AGREEMENT
This document, Merchant Processing Agreement (the Agreement), accompanies the document Merchant Application (Merchant
Application) and includes the Terms and Conditions set forth below (the Terms and Conditions) together with the terms and
conditions of the Merchant Application. The bank (Bank) identified in this Agreement is a member of Visa USA, Inc. (Visa) and
MasterCard International, Inc. (MasterCard), and is Deutsche Bank AG, New York branch. EVO Merchant Services, LLC d/b/a EVO
(EVO) is a registered independent sales organization of Visa and a member service provider of MasterCard. This Agreement is
between EVO, Bank, and the merchant (or you) identified in the Merchant Application (Merchant). Merchant and EVO agree that
the rights and obligations contained in this Agreement do not apply to Bank with respect to Discover transactions. To the extent
Merchant accepts Discover cards, the provisions in this Agreement with respect to Discover apply if Merchant does not have a
separate agreement with Discover. In such case, Merchant will also be enabled to accept JCB and Diners Club cards under the
Discover network and such transactions will be processed at the same fee rate as Merchants Discover transactions are processed.
Any references to the Debit Sponsor shall refer to the debit sponsors identified below.
RECITALS
Merchant desires to accept credit cards (Cards) validly issued by members of Visa, MasterCard, and Discover. Bank and EVO
desire to provide credit card processing services to Merchant. Therefore, Merchant, EVO and Bank agree as follows:
TERMS AND CONDITIONS
1. Honoring Cards.
A. Without Discrimination. You will honor, without discrimination, any Card properly tendered by a Cardholder.
Cardholder means a person possessing a Card and purporting to be the person in whose name the Card is issued. You will not
establish a minimum or maximum transaction amount as a condition for honoring a Card.
B. Cardholder Identification. You will identify the Cardholder and check the expiration date and signature on each Card. You will not
honor any Card if: (i) the Card has expired, (ii) the signature on the sales draft does not correspond with the signature on the Card, or
(iii) the account number embossed on the Card does not match the account number on the Cards magnetic strip (as printed in
electronic form) or the account number listed on a current Electronic Warning Bulletin file. You may not require a Cardholder to
provide personal information, such as a home or business telephone number, a home or business address, or a drivers license
number as a condition for honoring a Card unless permitted under the Laws and Rules (defined in Section 14, below).
C. Card Recovery. You will use your best efforts to retain any Card: (i) on Visa Cards if the printed four digits below the embossed
account number do not match the first four digits of the embossed account number; (ii) if you are advised by EVO or Bank (or a
designee) the issuer of the Card or the designated voice authorization center to retain it: (iii) if you have reasonable grounds to
believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or (iv) if, for MasterCard Cards, the
embossed account number, indent printed account number and encoded account number do not match or the Card does not have a
MasterCard hologram on the lower right corner of the Card face.
D. Surcharges. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card,
except as permitted by the Rules. This paragraph does not prohibit you from offering a discount from the standard price to induce a
person to pay by cash, check or similar means rather than by using a Card.
E. Return Policy. You will properly disclose to the Cardholder, at the time of the Card transaction and in accordance with the Rules,
any limitation you have on accepting returned merchandise.
F. No Claim Against Cardholder. You will not have any claim against or right to receive payment from a Cardholder unless EVO and
Bank refuses to accept the Sales Draft (as defined in Section 3) or revokes a prior acceptance of the Sales Draft after receipt or a
chargeback or otherwise. You will not accept any payments from a Cardholder relating to previous charges for merchandise or
services included in a Sales Draft, and if you receive any such payments you promptly will remit them to EVO and Bank.
G. Disputes With Cardholders. All disputes between you and any Cardholder relating to any Card transaction will be settled between
you and the Cardholder. Neither EVO nor Bank bear any responsibility for such transactions.
2. Authorization.
A. Required on all Transactions. You will obtain a prior authorization for the total amount of a transaction via electronic terminal or
device before completing any transaction, and you will not process any transaction that has not been authorized. You will follow any
instructions received during the authorization process. Upon receipt of authorization you may consummate only the transaction
authorized and must note on the Sales Draft the authorization number. Where authorization is obtained, you will be deemed to
warrant the true identity of the customer as the Cardholder.
B. Effect. Authorizations are not a guarantee of acceptance or payment of the Sales Draft. Authorizations do not waive any provisions
of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card.
C. Unreadable Magnetic Stripes. When you present Card transactions for authorization electronically, and if your terminal is unable to
read the magnetic stripe on the card, you will obtain an imprint of the card and the Cardholders signature on the imprinted draft
before presenting the Sales Draft to EVO and Bank for processing. Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions.
3. Presentment of Sales Drafts.
A. Forms. You will use a Sales Draft (Sales Draft) or other form approved by EVO and Bank to document each Card transaction.
Each Sales Draft will be legibly imprinted with: (i) Merchants name, location and account number; (ii) the information embossed on
the Card presented by the Cardholder (either electronically or manually); (iii) the date of the transaction; (iv) a brief description of the
goods or services involved; (v) the transaction authorization number; (vi) the total amount of the sale including any applicable taxes,
or credit transaction; and (vii) adjacent to the signature line, a notation that all sales are final, if applicable.
B. Signatures. Each Sales Draft must be signed by the Cardholder unless the Card transaction is a valid mail/telephone order Card
transaction which fully complies with the requirements set forth in this Agreement. You may not require the Cardholder to sign the
Sales Draft before you enter the final transaction amount in the Sales Draft.
C. Reproduction of Information. If the following information is not legibly imprinted on the Sales Draft, you will legibly inscribe on the
Sales Draft before submitting it to EVO and Bank: (i) the Cardholders name: (ii) account number (iii) expiration date of the Card and
(iv) the Merchants name and place of business. Additionally, for MasterCard transactions you will legibly inscribe the name of the
bank issuing the Card as it appears on the face of the Card.
D. Delivery and Retention of Sales Drafts. You will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at
the time of the transaction. You will retain the merchant copy of the Sales Draft or credit memorandum for at least 3 years following
the date of completion of the Card transaction (or such longer period as the Rules require).
E. Electronic Transmission. In using electronic authorization and/or data capture services, you will enter the data related to a sales or
credit transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the
transaction is completed (unless otherwise permitted by the Rules). Failure to do so may result in the assessment of a transaction
surcharge on non-qualifying transactions and, at EVOs sole discretion, the deposit of the funds received for such sales or credit
transaction into the Reserve Account. If you provide your own electronic terminal or similar device, such terminal must meet EVO and
Banks requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or
magnetic stripe reading terminal will be transmitted by you to EVO and Bank or their agent in the form EVO and Bank from time to
time specify or as required under the Rules. If EVO or Bank requests a copy of a Sales Draft, credit voucher or other transaction
evidence, you will provide it within 24 hours following the request.
4. Deposit of Sales Drafts and Funds Due Merchant.
A. Deposit of Funds. i. Deposits. You agree that this Agreement is a contract of financial accommodation within the meaning of the
Bankruptcy Code, 11 U.S.C. 365 as amended from time to time. Subject to this Section, Bank will deposit to the Designated
Account (defined in section 6 below) funds evidenced by Sales Drafts (whether evidenced in writing or by electronic means)
complying with the terms of this Agreement and the Rules and will provide you provisional credit for such funds (less recoupment of
any credit(s), adjustments, fines, chargebacks, or fees). You shall not be entitled to credit for any indebtedness that arises out of a
transaction not processed in accordance with the terms of this Agreement or the rules and regulations of a card association or
network organization. You acknowledge that your obligation to EVO and Bank for all amounts owed under this Agreement arises out
of the same transaction as EVO and Banks obligation to deposit funds to the Designated Account. ii. Provisional Credit.
Notwithstanding the previous sentences, under no circumstance will EVO or Bank be responsible for processing credits or
adjustments related to Sales Drafts not originally processed by EVO and Bank. All Sales Drafts and deposits are subject to audit and
final checking by EVO and Bank and may be adjusted for inaccuracies. You acknowledge that all credits provided to you are
provisional and subject to chargebacks, recoupment, adjustments, fines and fees: (i) in accordance with the Rules; (ii) for any of your
obligations to EVO and Bank; and (iii) in any other situation constituting suspected fraud or a breach of this Agreement, whether or
not a transaction is charged back by the Card issuer. EVO and Bank may elect, but are not required, to grant conditional credit for
individual or groups of any funds evidenced by Sales Drafts. Final credit for those conditional funds will be granted within EVO and
Banks sole discretion. iii. Processing Limits. EVO and Bank may impose a cap on the volume and ticket amount of Sales Drafts that
they will process for you, as indicated to you by EVO or Bank. This limit may be changed by EVO or Bank upon written notice to you.
B. Chargebacks. You are fully liable for all transactions returned for whatever reason, otherwise known as chargebacks. You will
pay on demand the amount of all chargebacks. Authorization is granted to offset from incoming transactions and to debit the
Designated Account, the Reserve Account (defined in Section 7, below) or any other account held at Bank or at any other financial
institution the amount of all chargebacks. You will fully cooperate in complying with the Rules regarding chargebacks.
C. Excessive Activity. Your presentation to EVO and Bank of Excessive Activity will be a breach of this Agreement and cause for
immediate termination of this agreement. Excessive Activity means, during any monthly period: (i) the dollar amount of chargebacks
and/or retrieval requests in excess of 1% of the average monthly dollar amount of your Card transactions; (ii) sales activity that
exceeds by 10% of the dollar volume indicated on the Application; or (iii) the dollar amount of returns equals 20% of the average
monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity, EVO and Bank to take
any action they deem necessary including but not limited to, suspension of processing privileges and establishment or increase in the
amount allocated to the Reserve Account and a reduction in the amount of provisional credit remitted to you in accordance with this
Agreement.
D. Credit. i. Credit Memoranda. You will issue a credit memorandum in any approved form, instead of making a cash advance, a
disbursement or a refund on any Card transaction. EVO or Bank will debit the Designated Account for the total face amount of each
credit memorandum submitted to EVO and Bank. You will not submit a credit memorandum relating to any Sales Draft not originally
submitted to EVO and Bank, nor will you submit a credit memorandum that exceeds the amount of the original Sales Draft. You will
within the time period specified by the Rules, provide a credit memorandum or credit statement for every return of goods or
forgiveness of debt for services which were the subject of a Card transaction. ii. Revocation of Credit. EVO or Bank may refuse to
accept any Sales Draft, and EVO and Bank may revoke prior acceptance of a Sales Draft in the following circumstances: (a) the
transaction giving rise to the Sales Draft was not made in compliance with this Agreement, the Laws or the Rules; (b) the Cardholder
disputes his liability to EVO and Bank for any reason, including but not limited to a contention that the Cardholder did not receive the
goods or services, that the goods or services provided were not as ordered, or those chargeback rights enumerated in the Rules; or
(c) the transaction giving rise to the Sales Draft was not directly between you and the Cardholder. You will pay EVO and Bank any
amount previously credited to you for a Sales Draft not accepted by EVO and Bank or where accepted, is revoked by EVO and Bank.
E. Reprocessing. Notwithstanding any authorization or request from a Cardholder, you will not re-enter or reprocess any transaction
which has been charged back.
F. Miscellaneous. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a
Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not
authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of
performing your obligations under this Agreement.
5. Other Types of Transactions.
A. Debit Card Processing Services. You may elect to accept debit cards, and said election should be made by you on the
accompanying Merchant Application. If you elect to accept debit cards, the following terms and conditions apply to you. Debit
Sponsor shall act as your sponsor with respect to the participation of point-of-sale terminals owned, controlled, and/or operated by
you (the Covered Terminals) in each of the following debit card networks (Networks): Accel, AFFN, Alaska Option, Interlink,
Maestro, NYCE, Pulse, Shazam, Star, CU24, and Tyme, which Networks may be changed from time-to-time by Debit Sponsor or
EVO without notice. You may also have access to other debit networks that do not require a sponsor. EVO will provide you with the
ability to access the Networks at the Covered Terminals for the purpose of authorizing debit card transactions from cards issued by
the members of the respective Networks, and EVO will provide connection to such Networks, terminal applications, settlement, and
reporting activities (collectively, the Services). You will comply with all federal, state, and local laws, rules, regulations and
ordinances (Applicable Laws) and with all by-laws, regulations, rules, and operating guidelines of the Networks (Network Rules).
You will execute and deliver any application, participation, or membership agreement or other document necessary to enable Debit
Sponsor to act as sponsor for you in each Network, and you shall obtain all consents, approvals, authorizations, or orders of any
governmental agency or body required for the execution, delivery, and performance of this Agreement. You agree to utilize the debit
card services in accordance with this Agreement, its exhibits or attachments, and EVOs instructions and specifications, and to
provide EVO with the necessary data in the proper format to enable EVO to properly furnish the Services. Copies of the relevant
agreements or operating regulations shall be made available to you upon request. You will provide prompt written notice to EVO in
the event that you are subject to any of the following: i. Conviction for a felony offense or any other crime involving moral turpitude; ii.
Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practice on your part; iii.
Bankruptcy filing or petition; iv. Federal or state tax lien; v. Any material adverse change in your assets, operations, or condition,
financial or otherwise; vi. The threat or filing of any litigation against you, the outcome of which reasonably could have a material
adverse effect on your continuing operations; vii. Administrative or enforcement proceeding commenced by any state or federal
regulatory agency, including any banking or securities agency or entity operating an EBT Network, that reasonably could have a
material adverse effect on your continuing operations; or viii. Any disciplinary action taken by any Network against you or any of your
principals. EVO may terminate or suspend in its discretion Debit Sponsors sponsorship of you in any Network or modify the provision
of Services to you: i. Immediately upon notice to you of the occurrence of any of the conditions set forth in items (i), (ii), (iii), (v), or
(viii) in the immediately preceding paragraph or if Debit Sponsors authority to participate in such Network or act as your sponsor in
such Network is terminated by such Network; ii. Thirty (30) days after written notice by EVO to you of the occurrence of any of the
conditions set forth in items (iv), (vi), or (vii) in the immediately preceding paragraph or if Debit Sponsor terminated its membership or
participation in such Network; iii. Immediately upon notice to you in the event any financial statement, representation, warranty,
statement or certificate furnished is materially false or misleading; or iv. Immediately upon notice to you of the occurrence of any other
circumstance with respect to this Section that may reasonably be expected to have an adverse effect on EVO. The parties hereto
acknowledge and agree that EVO shall pay Debit Sponsor any and all fees related to Debit Sponsors sponsorship of you in the
Networks; provided, however, that in the event EVO fails to pay such amounts, Debit Sponsor shall be entitled to recover all such
amounts directly from you and you agree to pay all such amounts. You shall not in any way indicate that Debit Sponsor endorses
your activities, products, or services. Debit Sponsor and you are and shall remain independent contractors of one another, and
neither they, nor their respective individual employees, shall have or hold themselves out as having any power to bind the other to
any third party. Nothing contained in this section shall be construed to create or constitute a partnership, joint venture,
employer-employee, or agency relationship between Debit Sponsor and you. You shall indemnify and hold harmless EVO and its
affiliates (including parents and subsidiaries), and their respective officers, directors, employees, successors and assigns, from and
against any and all direct or contingent losses, costs, claims, demands, and causes of action (including, without limitation, the cost of
investigating the claim, the cost of litigation, and reasonable attorneys fees including those of in-house counsel, whether or not legal
proceedings are instituted) paid or incurred by or on behalf of EVO as a result of your violation of any of the terms of this Section,
Network Rules, or Applicable Laws, or otherwise arising from or related to Debit Sponsors sponsorship of you in any Network. In the
event that Debit Sponsors sponsorship of you in any Network is terminated prior to the termination of this Agreement, EVO may
assign Debit Sponsors rights and obligations hereunder to a third party. All provisions in this section necessary to enforce the rights
and obligations of the parties contained in this section shall survive the termination of Debit Sponsors debit sponsorship of you under
this Agreement.
B. Mail/Telephone Order. EVO and Bank caution against mail orders or telephone orders or any transaction in which the Cardholder
and Card are not present (mail/telephone orders) due to the high incidence of customer disputes. You will obtain the expiration date
of the Card for a mail/telephone order and submit the expiration date when obtaining authorization of the Card transaction. For
mail/telephone order transactions, you will type or print legibly on the signature line the following as applicable: telephone order or
TO or mail order or MO. You must promptly notify EVO and Bank if your retail/mail order/telephone order mix changes from the
percentages represented to EVO and Bank in the Merchant Application. EVO and Bank may cease accepting mail/telephone order
transactions, or limit their acceptance of such transactions, or increase their fees if this mix changes. Bank will release funds to
Merchant five (5) business days after the transaction date for mail/telephone orders. Merchant agrees to use and retain proof of a
traceable delivery system as means of shipment of product to the customer. Merchant agrees that transactions will not be processed
until products are shipped to the Cardholder. Merchant agrees to pay a charge of $0.05 per AVS transaction, if applicable. This
agreement may be immediately terminated by Bank if Merchant fails to comply with any of the terms of the agreement.
C. Recurring Transactions. For recurring transactions, you must obtain a written request from the Cardholder for the goods and
services to be charged to the Cardholders account, the frequency of the recurring charge, and the duration of time during which such
charges may be made. You will not complete any recurring transaction after receiving: (i) a cancellation notice from the Cardholder,
(ii) notice from EVO or Bank, or (iii) a response that the Card is not to be honored. You must print legibly on the Sales Draft the words
Recurring Transaction.
D. Multiple Sales Drafts. You will include a description and total amount of goods and services purchased in a single transaction on a
single Sales Draft or transaction record, unless (i) partial payment is entered on the Sales Draft or transaction record and the balance
of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in
a Card transaction completed in accordance with this Agreement and the Rules.
E. Partial Completion. i. Prior Consent. You will not accept for payment by Card any amount representing a deposit or partial payment
for goods or services to be delivered in the future without the prior written consent of EVO or Bank. Such consent will be subject to
Banks final approval. The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future
without prior consent will be deemed a breach of this Agreement and cause for immediate termination, in addition to any other
remedies available under the Laws or Rules. ii. Acceptance. If you have obtained prior written consent, then you will complete such
Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one
Sales Draft when making a deposit with a Card and a second Sales Draft when paying the balance. You will note upon the Sales
Draft the words deposit or balance as appropriate. You will not deposit the Sales Draft labeled balance until the goods have
been delivered to Cardholder or you have fully performed the services.
F. Future Delivery. You will not present any Sales Draft or other memorandum to Bank for processing whether by electronic means
which relates to the sale of goods or services for future delivery without EVO or Banks, prior written authorization. Such consent will
be subject to Banks final approval. If EVO or Bank have given such consent, you represent and warrant to EVO and Bank that you
will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services. You will maintain
sufficient working capital to provide for the delivery of goods or services at the agreed upon future date, independent of any credit or
proceeds resulting from sales drafts or other memoranda taken in connection with future delivery transactions.
G. Electronic Commerce Transactions. You may process electronic commerce (EC) transactions only if you have so indicated on
the Application, and only if you have obtained EVOs consent. If you submit EC transactions without our consent, we may
immediately terminate this Agreement. If you have indicated on the Application that you will be submitting EC transactions, you
acknowledge that you have reviewed the Payment Card Industry Data Security Standards (PCI DSS), Visas Cardholder Information
Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and to the extent that they apply to you, you agree
to comply with, and ensure such transactions comply with, the terms of each. You understand that transactions processed via EC are
high risk and subject to a higher incidence of chargebacks. You are liable for all chargebacks and losses related to EC transactions,
whether or not: i) EC transactions have been encrypted; and ii) you have obtained consent to engage in such transactions. Encryption
is not a guarantee of payment and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction. All
communication costs related to EC transactions are your responsibility. You understand that EVO will not manage the EC
telecommunications link and that it is your responsibility to manage that link. All EC transactions will be settled by Bank into a
depository institution of the United States in U.S. currency. i. Requirements. For goods to be shipped on EC transactions, you may
obtain authorization up to 7 calendar days prior to the shipment date. You need not obtain a second authorization if the Sales Draft
amount is within 15% of the authorized amount, provided that the additional amount represents shipping costs. Further, your web site
must contain all of the following information: i) complete description of the goods or services offered, ii) returned merchandise and
refund policy, iii) customer service contact, including electronic mail address and/or telephone number, iv) transaction currency (such
as U.S. or Canadian dollars), v) export or legal restrictions, if known, and vi) delivery policy. If you store cardholder account numbers,
expiration dates, and other personal cardholder data in the database, you must follow PCI DSS, CISP and SDP guidelines on
securing such data. ii. If you accept EC transactions, you must: install and maintain a working network firewall to protect data
accessible via the Internet; keep security patches up-to-date; encrypt stored data and data sent over open networks; use and update
anti-virus software; restrict access to data by business need-to-know; assign a unique ID to each person with computer access to
data; not use vendor-supplied defaults for system passwords and other security parameters; track access to data by unique ID;
regularly test security systems and processes; maintain a policy that addresses information security for employees and contractors;
and restrict physical access to Cardholder information. When outsourcing administration of information assets, networks, or data you
must retain legal control of proprietary information and use limited need-to-know access to such assets, networks or data. Further,
you must reference the protection of cardholder information and compliance with the PCI DSS, CISP and SDP Rules in contracts with
other service providers. You understand that failure to comply with this Section may result in fines and you agree to indemnify
and reimburse EVO and Bank immediately for any fine imposed due to your breach of this Section.
H. American Express, JCB and Diners Club Transactions. Upon your request, EVO will provide authorization and/or data capture
service, for JCB, Diners Club and American Express transactions. By signing this Merchant Agreement, Merchant agrees to abide by
the terms and conditions of Diners Club, American Express, and JCB. Merchant understands that the Diners Club Agreement will be
sent to the business entity indicated on this application. By accepting the Diners Club Card for goods and/or services, Merchant
agrees to be bound by the terms and conditions of the Agreement. EVO and Bank are not responsible for funding such transactions.
Initial setup fees may apply.
l. Cash Advances. You will not deposit any transaction for purposes of obtaining or providing a cash advance. You agree that any
such deposit shall be grounds for immediate termination.
J. Prohibited Transactions. You will not accept or deposit any fraudulent or illegal transaction and you may not, under any
circumstances, present for deposit directly or indirectly, a transaction which originated with any other merchant or any other source.
You will not, under any circumstance, deposit telemarketing transactions unless you obtain Bank, EVO prior written consent. Such
consent will be subject to Banks final approval. If you process any such transactions, you may be immediately terminated and EVO
or Bank may hold funds and/or increase the amount allocated to the Reserve Account and/or deduct from the amount of provisional
credit that would otherwise be allocated to you. Further, you may be subject to Visa, MasterCard or Discover reporting requirements.
6. Designated Account.
A. Establishment and Authority. Merchant will establish and maintain an account at an ACH receiving depository institution approved
by Bank and EVO (Designated Account). Merchant will maintain sufficient funds in the Designated Account to satisfy all obligations,
including fees, contemplated by this Agreement. Merchant irrevocably authorizes Bank and EVO to debit the Designated Account for
chargebacks, recoupments, adjustments, fines, fees and any other penalties or amounts owed under this Agreement, and
irrevocably authorizes Bank and EVO to debit the Designated Account for any amount owed to Bank and EVO under this Agreement
other than the amounts directly attributable to the settlement of transactions. You also authorize EVO and Bank to debit the
Merchant Account for any fees due such vendor or agent under this Agreement. This authority will remain in effect for at least 2
years after termination of this Agreement whether or not you have notified EVO and Bank of a change to the Designated Account.
Merchant must obtain prior written consent from Bank or EVO to change the Designated Account. If Merchant does not get that
consent, EVO or Bank may immediately terminate the Agreement and may take other action necessary, as determined by them
within their sole discretion.
B. Deposit. Bank will deposit all Sales Drafts to the Designated Account subject to the other provisions of this Agreement. The funds
represented by Sales Drafts will be deposited 3 business days following EVOs receipt of the Sales Draft, except for mail
order/telephone order and electronic commerce transactions, which will be deposited 5 business days following receipt of the Sales
Draft. Business Day means Monday through Friday, excluding holidays observed by the Federal Reserve Bank of New York.
Merchant authorizes Bank and EVO to initiate reversal or adjustment entries and initiate or suspend such entries as may be
necessary to grant Merchant provisional credit for any entry. You authorize and appoint Bank and EVO to act as your agent to collect
Card transaction amounts from the Card issuing bank. As the collecting agent, Bank and EVO in their sole discretion, may grant you
provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by Bank and subject to all
chargebacks.
C. Asserted Errors. You must promptly examine all statements relating to the Designated Account, and immediately notify EVO and
Bank in writing of any errors. Your written notice must include: (i) Merchant name and account number. (ii) the dollar amount of the
asserted error, (iii) a description of the asserted error, and (iv) an explanation of why you believe an error exists and the cause of it, if
known. That written notice must be received by EVO and Bank within 30 calendar days after you received the periodic statement
containing the asserted error. Your failure to notify EVO and Bank of any error within 30 days constitutes a waiver of any claim
relating to that error. You may not make any claim against EVO or Bank for any loss or expense relating to any asserted error for 60
calendar days immediately following our receipt of your written notice. During that 60 day period, EVO and Bank will be entitled to
investigate the asserted error.
D. Indemnity. You will indemnify and hold EVO and Bank harmless for any action they take against the Designated Account, the
Reserve Account, or any other account pursuant to this Agreement.
E. ACH Authorization. You authorize EVO and Bank to initiate debit/credit entries to the Designated Account, the Reserve Account,
or any other account maintained by you at any institution, all in accordance with this Agreement and the ACH Authorization on the
attached Exhibit B, Merchant Authorizations . The ACH Authorization will remain in effect beyond termination of this Agreement. In
the event you change the Designated Account, you will execute a new ACH Authorization.
7. Security Interests, Reserve Account, Recoupment and Set-Off.
A. Security Interests. i. Security Agreement. This Agreement is a security agreement under the Uniform Commercial Code. You grant
to EVO and Bank a security interest in and lien upon: (i) all funds at any time in the Designated Account, regardless of the source of
such funds; (ii) all funds at any time in the Reserve Account, regardless of the source of such funds; (iii) present and future Sales
Drafts; and (iv) any and all amounts which may be due to you under this Agreement including, without limitation, all rights to receive
any payments or credits under this Agreement (collectively, the Secured Assets). You agree to provide other collateral or security
to EVO and Bank to secure your obligations under this Agreement upon EVO or Banks request. These security interests and liens
will secure all of your obligations under this Agreement and any other agreements now existing or later entered into between you
and EVO or Bank. This security interest may be exercised by EVO or Bank without notice or demand of any kind by making an
immediate withdrawal or freezing the secured assets. ii. Perfection. Upon request of EVO or Bank, you will execute one or more
financing statements or other documents to evidence this security interest. You represent and warrant that no other person or entity
has a security interest in the Secured Assets. Further, with respect to such security interests and liens, EVO and Bank will have all
rights afforded under the Uniform Commercial Code, any other applicable law and in equity. You will obtain from EVO and Bank
written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract
of recoupment and EVO and Bank are not required to file a motion for relief from the automatic stay in any bankruptcy proceeding in
order for EVO or Bank to realize on any of its collateral (including any Reserve Account). Nevertheless you agree not to contest or
object to any motion for relief from the automatic stay filed by EVO or Bank. You authorize EVO or Bank and appoint EVO or Bank
your attorney in fact to sign your name to any financing statement used for the perfection of any security interest or lien granted
hereunder.
B. Reserve Account. i. Establishment. A non-interest bearing deposit account (Reserve Account) has been established and is
maintained at Bank or one of its affiliates with sums sufficient to satisfy your current and future merchant obligations as determined
by EVO and Bank. You authorize EVO and Bank to debit the Designated Account or any other account you have at Bank or any
other financial institution to establish or maintain funds in the Reserve Account. Bank or EVO may deposit into the Reserve Account
funds it would otherwise be obligated to pay you, for the purpose of establishing, maintaining or increasing the Reserve Account in
accordance with this Section, if it determines such action is reasonably necessary to protect its interests. ii. Authorizations. EVO and
Bank may, without notice to you, apply deposits in the Reserve Account against any outstanding amounts you owe under this
Agreement or any other agreement between you and EVO or Bank. Also, EVO and Bank may exercise their rights under this
Agreement against the Reserve Account to collect any amounts due to EVO or Bank including, without limitation, rights of set-off and
recoupment. In the event you submit a merchant application to EVO through the use of Insta-App, and EVO does not receive a
completed written merchant application within 2 business days, you authorize EVO or Bank to hold all of your funds in the Reserve
Account until the completed written merchant application and other required documentation is received by EVO. iii. Funds. Funds in
the Reserve Account will remain in the Reserve Account for 270 calendar days following the later of termination of this Agreement or
the last activity in your account, provided, however, that you will remain liable to EVO and Bank for all liabilities occurring beyond
such 270 day period. After the expiration of the 270 day period EVO will provide you with written notification via nationally recognized
delivery service advising you that the 270 day period has expired, requesting that you provide EVO with an address where the funds
you have remaining in the Reserve Account should be delivered, and stating that in the event you fail to respond to this notification
within 30 days, EVO will begin deducting a flat fee of $95 each month from the funds you have remaining in the Reserve Account. In
the event you fail to respond to the notification, the $95 fee will then be deducted each month from the funds you have remaining in
the Reserve Account. This fee will offset the administrative, clerical, legal, and risk management costs incurred by EVO to monitor
the funds you have remaining in the Reserve Account beyond the 270 day period, and includes all monthly minimums and any other
contractual fees that would ordinarily be assessed against your account pursuant to the terms of this Agreement. You agree that
prior to the expiration of the 270 days, you will not use any funds you have in the Reserve Account for any purpose, including but not
limited to paying chargebacks, fees, fines, or other amounts you owe to EVO and/or Bank under this Agreement. EVO and Bank
(and not Merchant) shall have control of the Reserve Account. iv. Assurance. In the event of a bankruptcy proceeding and the
determination by the court that this Agreement is assumable under Bankruptcy Code 365, as amended from time to time, you must
maintain funds in the Reserve Account in an amount satisfactory to EVO and Bank.
C. Recoupment and Set Off. EVO and Bank have the right of recoupment and set-off. This means that they may offset or recoup any
outstanding/uncollected amounts owed by you from: (i) any amounts they would otherwise be obligated to deposit into the
Designated Account; (ii) any other amounts Bank or EVO may owe you under this Agreement or any other agreement; and (iii) any
funds in the Designated Account or the Reserve Account. You acknowledge that in the event of a bankruptcy proceeding, in order for
you to provide adequate protection under Bankruptcy Code 362 to EVO and Bank, you must create or maintain the Reserve
Account as required by EVO and Bank, and EVO and Bank must have the right to offset against the Reserve Account for any and all
obligations which you may owe to EVO and Bank, without regard to whether the obligations relate to Sales Drafts initiated or created
before or after the filing of the bankruptcy petition.
D. Remedies Cumulative. The rights and remedies conferred upon EVO and Bank in this Agreement, at law or in equity, are not
intended to be exclusive of each other. Rather, each and every right of EVO and Bank under this Agreement, at law or in equity, will
be cumulative and concurrent and in addition to every other right.
8. Fees and Other Amounts Owed EVO and Bank.
A. Fees and Taxes. You will pay EVO fees for services, forms and equipment in accordance with the rates set forth on the
Application. In addition, you will pay EVO a fee for research it performs at your request in an amount equal to $200 per hour, or $5
per statement. Such fees will be calculated and debited from the Designated Account once each business day or month for the
previous business days or months activity or will be netted out from the funds due you attributable to Sales Drafts presented to EVO
and Bank. EVO and Bank reserve the right to adjust the fees set forth on the Application and in this Section, in accordance with
Section 16.H, below. If you do not have an active account at the time of the request, payment by certified check or money order must
be received prior to the release of the requested document copies or research results. You are also obligated to pay all taxes, and
other charges imposed by any governmental authority on the services provided under this Agreement. With respect to Visa,
MasterCard and Discover products, you may elect to accept credit cards or debit/prepaid cards or both. You shall so elect on the
Merchant Application being completed contemporaneously herewith. You agree to pay and your account(s) will be charged pursuant
to Section 6.A of this Agreement for any additional fees incurred as a result of your subsequent acceptance of transactions with any
Visa, MasterCard or Discover product that you have elected not to accept.
B. Other Amounts Owed EVO and Bank. You will immediately pay EVO and Bank any amount incurred by EVO and Bank
attributable to this Agreement including but not limited to chargebacks, fines and penalties imposed by Visa, MasterCard or Discover
(including but not limited to fines and penalties related to PCI DSS), non-sufficient fund fees, and ACH debits that overdraw the
Designated Account or Reserve Account, or are otherwise dishonored. You authorize EVO and Bank to debit via ACH the
Designated Account or any other account you have at Bank or at any other financial institution for any amount you owe EVO or Bank
under this Agreement or under any other contract, note, guaranty, instrument or dealing of any kind now existing or later entered into
between you and EVO or Bank, whether your obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In
the event EVO or Bank demand sums due or such ACH does not fully reimburse EVO and Bank for the amount owed, you will
immediately pay EVO and Bank such amount.
C. Merchant Supply/Replacement Program. Merchant is responsible for purchasing all supplies required to properly process credit
card transactions (sales slips, printer rolls, etc.). If Merchant elects to participate in EVOs Supply/Replacement Program, Merchant
understands that it is entitled to a maximum of 6 rolls of paper and 2 printer ribbons per month. It is Merchants responsibility to
contact EVO each month to order supplies. EVO will only provide Merchant with supplies for the current month, and Merchants
failure to place an order with EVO will constitute a waiver of its right to receive supplies for that month under the
Supply/Replacement Program. Quantity of supplies provided is at the discretion of EVO. Enrollment in EVOs Supply/Replacement
Program also entitles Merchant to free refurbished replacement equipment after EVO has collected 3 monthly payments from
Merchant (merchant is responsible for all shipping costs). A separate program is required for each terminal Merchant may have. If
Merchants terminal type is unavailable, at EVOs discretion, a substitute may be provided. EVOs Supply/Replacement Program
does not include labor, parts, or expenses necessary to replace or repair equipment damaged by fire, flood, accident, improper
voltages, misuse of equipment, service performed by persons other than EVO representatives, and/or failure to continually maintain
a suitable operating environment for the equipment. EVO may choose to cancel Merchants Supply/Replacement Program at any
time without notice. This program is nontransferable without written consent. Maintenance is not available for any wireless terminals.
9. Application, Indemnification, Limitation of Liability.
A. Application. You represent and warrant to EVO and Bank that all information in the Application is correct and complete. You must
notify EVO in writing of any changes to the information in the Application, including but not limited to: any additional location or new
business, the identity of principals and/or owners, the form of business organization (e.g., sole proprietorship, partnership, etc.), type
of goods and services provided and how sales are completed (i.e., by telephone, mail, or in person at your place of business). The
notice must be received by EVO within 10 business days of the change. You will provide updated information to EVO within a
reasonable time upon request. You are liable to EVO and Bank (as applicable) for all losses and expenses incurred by EVO and/or
Bank arising out of your failure to report changes to it. Bank and EVO may immediately terminate this Agreement upon notification
by you of a change to the information in the Application.
B. Indemnification. You will hold harmless and indemnify EVO and Bank, their employees and agents (i) against all claims by third
parties arising out of this Agreement, and (ii) for all attorneys fees and other costs and expenses paid or incurred by EVO or Bank in
the enforcement of the Agreement, including but not limited to those resulting from any breach by you of this Agreement and those
related to any bankruptcy proceeding.
C. Limitation of Liability. Any liability of EVO or Bank under this Agreement, whether to you or any other party, whatever the basis of
the liability, shall not exceed in the aggregate the difference between (i) the amount of fees paid by you to EVO and Bank during the
month in which the transaction out of which the liability arose occurred, and (ii) assessments, chargebacks, and offsets against such
fees which arose during such month. In the event more than one month is involved, the aggregate amount of EVO and Banks
liability shall not exceed the lowest amount determined in accord with the foregoing calculation for anyone month involved. Neither
EVO, Bank nor their agents, officers, directors, or employees shall be jointly liable to you under this Agreement or liable for indirect,
special, or consequential damages. Neither EVO nor Bank will be responsible or liable for any damages you incur that arise from a
terminal that has been downloaded by a third party.
D. Performance. EVO and Bank will perform all services in accordance with this Agreement. EVO and Bank make no warranty,
express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. EVO and Bank
disclaim all implied warranties, including those of merchantability and fitness for a particular purpose. No party will be liable to the
others for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control
and without the, fault or negligence of such party. Neither EVO nor Bank shall be liable for the acts or omissions of any third party.
E. Representations By Salespersons. All salespersons are independent contractors, and are not agents, employees, joint venturers,
or partners of EVO or Bank. Any and all representations and/or statements made by a salesperson are made by them in their
capacity as an independent contractor, and cannot be imputed to EVO or Bank. EVO and Bank have absolutely no liability or
responsibility for any representations and/or statements made to you by any sales representative.
10. Representations and Warranties. You represent and warrant to EVO and Bank at the time of execution and during the
term of this Agreement the following:
A. Information. You are a corporation, limited liability company, partnership or sole proprietorship validly existing and organized in
the United States. All information contained on the Application or any other document submitted to EVO or Bank is true and
complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Merchant. You are not
engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Application, unless you
obtain the prior written consent of EVO and Bank.
B. Entity Power. Merchant and the person signing this Agreement have the power to execute and perform this Agreement. This
Agreement and your performance hereunder will not violate any law, or conflict with any other agreement to which you are subject.
C. No Litigation or Termination. There is no action, suit or proceeding pending or to your knowledge threatened which if decided
adversely would impair your ability to carry on your business substantially as now conducted or which would adversely affect your
financial condition or operations. You have never entered into an agreement with a third party to perform credit or debit card
processing which has been terminated by that third party.
D. Transactions. All transactions are bona fide. No transaction involves the use of a Card for any purpose other than the purchase of
goods or services from you nor does it involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in
writing with EVO and Bank. EVO may choose to cancel Merchants Supply/Replacement Program at any time without notice. This
program is non-transferable without written consent. Maintenance is not available for any wireless terminals.
E. Rule Compliance. You will comply with the Laws and Rules. Without limiting the generality of the foregoing, each sales
transaction submitted hereunder and the handling, retention, and storage of information related thereto, will comply with the rules
and regulations of Visa, MasterCard, Discover, and any other card association or network organization related to cardholder and
transaction information security, including, without limitation Payment Card Industry Data Security Standards (PCI DSS), Visas
Cardholder Information Security Program (CISP) and MasterCards Site Data Protection Program (SDP), and Payment Application
Best Practices.
11. Audit and financial information.
A. Audit. You authorize EVO or Bank to audit your records to confirm compliance with this Agreement, as amended from time to
time. You will obtain, and will submit a copy of, an audit of your business when requested by EVO or Bank.
B. Financial Information. i. Authorizations. You authorize EVO or Bank to make any business or personal credit inquiries they
consider necessary to review the acceptance and continuation of this Agreement. You also authorize any person or credit reporting
agency to compile information to answer, those credit inquiries and to furnish that information to EVO and Bank. ii. Documents. You
will provide EVO or Bank personal and business financial statements and other financial information as requested from time to time.
If requested, you will furnish within 120 calendar days after the end of each fiscal year to EVO and Bank a financial statement of
profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year.
12. Third Parties.
A. Services. You may be using special services or software provided by a third party to assist you in processing
transactions, including authorizations and settlements, or accounting functions. You are responsible for ensuring compliance with the
requirements of any third party in using their products. This includes making sure you have and comply with any software updates.
EVO and Bank have no responsibility for any transaction until that point in time EVO or Bank receive data about the transaction.
B. Use of Terminals Provided by Others. You will notify EVO and Bank immediately if you decide to use electronic authorization or
data capture terminals or software provided by any entity other than EVO and Bank or its authorized designee (Third Party
Terminals) to process transactions. If you elect to use Third Party Terminals or payment software provided by others you agree (i)
the third party providing the terminals will be your agent in the delivery of Card transactions to EVO and Bank; and (ii) to assume full
responsibility and liability for any failure of that third party to comply with the Rules and this Agreement. Neither EVO nor Bank will be
responsible for any losses or additional fees incurred by you as result of any error by a third party agent, or a malfunction of your
credit card terminal, including but not limited to Third Party Terminals.
13. Term and Termination.
A. Term. This Agreement shall become effective (Effective Date) only upon acceptance by EVO and Bank, or upon the submission
of a transaction by you to EVO, whichever event shall occur first. The Agreement will remain in effect for a period of 3 years (Initial
Term) and will renew for successive 1 year terms (Renewal Term) unless terminated as set forth below.
B. Termination. The Agreement may be terminated by Merchant at the end of the Initial Term or any Renewal Term by giving written
notice of an intention not to renew at least 90 calendar days before the end of the Initial Term or any Renewal Term. Further, this
Agreement may be terminated by EVO or Bank at any time with or without notice and with or without cause.
C. Action upon Termination. i. Terminated Merchant File. You acknowledge that Bank is required to report your business name and
the name of Merchants principals to Visa, MasterCard and Discover when Merchant is terminated due to the reasons listed in the
Rules. ii. Designated Account. All your obligations regarding accepted Sales Drafts will survive termination. You must maintain in the
Designated Account and the Reserve Account enough funds to cover all chargebacks, deposit charges, refunds and fees incurred by
you for a reasonable time, but in any event not less than the time specified in this agreement. You authorize EVO and Bank to
charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Designated
Account or Reserve Account is not adequate, you will pay EVO and Bank the amount you owe it upon demand, together with all
costs and expenses incurred to collect that amount, including reasonable attorneys fees. iii. Equipment. Within 14 business days of
the date of termination, you must return all equipment owned by EVO and immediately pay EVO, any amounts you owe them for
equipment costs. iv. Early Termination. If you terminate this Agreement before the end of the Initial Term, or before the end of any
successive Renewal Term, in violation of the procedure set forth in Section 13.B above, or if EVO or Bank terminates this Agreement
based upon your failure to comply with the terms and conditions contained herein, you will immediately pay EVO, as liquidated
damages, a closure fee of $295. You agree that this fee is not a penalty, but rather is reasonable in light of the financial harm caused
by the early termination of this Agreement.
14. Compliance With Laws And Rules.
You agree to comply with all rules and operating regulations issued from time to time by MasterCard, Visa and Discover (Rules),
and any policies and procedures provided by EVO or Bank. You further agree to comply with all applicable state, federal and local
laws, rules and regulations (Laws), as amended from time to time. You will assist EVO and Bank in complying with all Laws and
Rules now or hereafter applicable to any Card transaction or this Agreement. You will execute and deliver to EVO and Bank all
instruments it may from time to time reasonably deem necessary. Without limiting the generality of the foregoing, you agree to
comply with and be bound by the rules and regulations of Visa, MasterCard, Discover, and any other card association or network
organization related to cardholder and transaction information security, including without limitation, Payment Card Industry Data
Security Standards (PCI DSS), Visas Cardholder Information Security Program and MasterCards Site Data Protection Program.
You agree to cooperate at your sole expense with any request for an audit or investigation by EVO, Bank, a card association or
network organization in connection with cardholder and transaction information security. You may also be assessed a monthly or
annual PCI fee, which will appear as a separate item on your monthly statement. This fee is assessed by EVO in connection with
EVOs efforts to comply with the PCI DSS and does not ensure your compliance with the PCI DSS or any law, rule or regulation
related to cardholder data security. The payment of such fee shall not relieve you of your responsibility to comply with all rules and
regulations related to cardholder data security, including without limitation the PCI DSS. Without limiting the generality of the
foregoing, you agree to use information obtained from a cardholder in connection with a card transaction solely for the purpose of
processing a transaction with that cardholder or attempting to re-present a chargeback with respect to such transaction. You will
indemnify and hold EVO and Bank harmless from any fines and penalties issued by Visa, MasterCard, Discover or any card
association or network organization and any other fees and costs arising out of or relating to the processing of transactions by EVO
and Bank at your location(s) and will reimburse EVO and Bank for any losses incurred by EVO with respect to any such fines,
penalties, fees and costs. You also agree that you will comply with all applicable laws, rules and regulations related to the truncation
or masking of cardholder numbers and expiration dates on transaction receipts from transactions processed at your location(s),
including without limitation the Fair and Accurate Credit Transactions Act and applicable state laws (Truncation Laws). As between
you, on the one hand, and EVO and Bank, on the other hand, you shall be solely responsible for complying with all Truncation Laws
and will indemnify and hold EVO and Bank harmless from any claim, loss or damage resulting from a violation of Truncation Laws as
a result of transactions processed at your location(s).
15. Use of Trademarks and Confidentiality.
A. Use of Trademarks. Your use of Visa, MasterCard and Discover trademarks must fully comply with the Rules. Your use of Visa,
MasterCard, Discover, or other cards promotional materials will not indicate directly or indirectly that Visa, MasterCard, Discover, or
others endorse any goods or services other than their own and you may not refer to Visa, MasterCard, Discover or others in stating
eligibility for your products or services.
B. Merchant is hereby granted a limited non-exclusive, non-transferable license to use Discover brands, emblems, trademarks,
and/or logos that identify Discover cards (Discover Program Marks). You are prohibited from using the Discover Program Marks
other than as expressly authorized in writing. You shall not use the Discover Program Marks other than to display decals, signage,
advertising and other forms depicting the Discover Program Marks that are provided to you pursuant to this Agreement or otherwise
approved in advance in writing. You may use the Discover Program marks only to promote the services covered by the Discover
Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that all
such uses by you must be approved in advance in writing. You shall not use the Discover Program Marks in such a way that
customers could believe that the products or services offered by you are sponsored or guaranteed by the owners of the Discover
Program Marks. You recognize that you have no ownership rights in the Discover Program Marks and shall not assign to any third
party any of the rights to use the Discover Program Marks.
C. Confidentiality. i. Cardholder Information. You will not disclose to any third party Cardholders account information or other
personal information except to an agent of yours assisting in completing a Card transaction, or as required by law. You must destroy
all material containing Cardholders account numbers, Card imprints, Sales Drafts, credit vouchers and (except for Sales Drafts
maintained in accordance with this Agreement, Laws. and the Rules). Further, you must take all steps reasonably necessary to
ensure Cardholder information is not disclosed or otherwise misused. ii. Prohibitions. You will not use for your own purposes, will not
disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of
EVO and Bank (including without limitation the terms of this Agreement), and will safeguard such information and data by using the
same degree of care that you use to protect your own confidential information. iii. Disclosure. You authorize EVO and Bank to
disclose your name and address to any third party who requests such information or otherwise has a reason to know such
information.
D. Return to EVO. All promotional materials, advertising displays, emblems, Sales Drafts, credit memoranda and other forms
supplied to you and not purchased by you or consumed in use will remain the property of EVO and Bank and will be immediately
returned to EVO upon termination of this Agreement. You will be fully liable for all loss, cost, and expense suffered or incurred by
EVO and Bank arising out of the failure to return or destroy such materials following termination.
16. General Provisions.
A. Entire Agreement. This Agreement, as amended from time to time, including the Rules and the completed Merchant Application,
all of which are incorporated into this Agreement, constitute the entire agreement among the four parties hereto (other than any prior
agreements to which Merchant is not a party), and all prior or other agreements to which Merchant is a party or representations,
written or oral, made to Merchant are superseded. This Agreement may be signed in one or more counterparts, all of which, taken
together, will constitute one agreement.
B. Exclusivity. During the initial and any renewal term of this Agreement, you will not enter into an agreement with any other entity
that provides credit card or debit card processing services similar to those provided by EVO and Bank as contemplated by this
Agreement without EVO and Banks written consent.
C. Construction. The headings used in this Agreement are inserted for convenience only and will not affect the interpretation of any
provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party. Any alteration or strikeover in the text of this pre-printed Agreement will have no
binding effect, and will not be deemed to amend this Agreement. This Agreement may be executed by facsimile, and facsimile
copies of signatures to this Agreement shall be deemed to be originals and may be relied on to the same extent as the originals.
D. Assignability. This Agreement may be assigned by EVO or Bank but may not be assigned by Merchant directly or by operation of
law, without the prior written consent of EVO and Bank. Any such assignment in breach of this provision shall be null and void, ab
initio. If Merchant nevertheless assigns this Agreement without the consent of EVO and Bank, the Agreement shall be binding upon
the assignee. Bank will be immediately informed in writing of any such assignment.
E. Notices. Any written notice under this Agreement will be deemed received upon the earlier of: (i) actual receipt or (ii) five calendar
days after being deposited in the United States mail, and addressed to the last address shown on the records of the sender.
MEMBER BANK INFORMATION
Deutsche Bank AG, c/o Deutsche Card Services GmbH
Kaltenbornweg 1-3
50679 Cologne, Germany
+49 221 99577 777 Support.deucs@db.com
Debit sponsorship provided by either Wells Fargo Bank N.A. or JP Morgan Chase N.A., as applicable.
F. Bankruptcy. You will immediately notify EVO and Bank (i) of any bankruptcy, receivership, insolvency or similar action or
proceeding initiated by or against Merchant or any of its principals and (ii) if it could reasonably be expected that any such action or
proceeding will be initiated by or against Merchant or any of its principals. You will include EVO and Bank on the list and matrix of
creditors as filed with the Bankruptcy Court whether or not a claim may exist at the time of filing. Failure to comply with either of
these requirements will be cause for immediate termination or any other action available to EVO and Bank under applicable Rules or
Law.
G. Choice of Law/Attorneys Fees/Venue/Jury Trial Waiver. Should it be necessary for EVO or Bank to defend or enforce any of its
rights under this Agreement in any collection or legal action, you agree to reimburse EVO and/or Bank, or any agent acting on their
behalf, as applicable, for all costs and expenses including reasonable attorneys fees, as a result of such collection or legal action.
Without limiting the generality of the foregoing, you agree to reimburse EVO and/or Bank, or any agent acting on their behalf, as
applicable, for all costs and expenses, including reasonable attorneys fees, incurred by EVO, Bank or their agent in any action
arising out of, relating to, or in connection with this Agreement, without regard to whether there has been an adjudication on the
merits in any such action. You waive trial by jury with respect to any litigation arising out of, relating to, or in connection with this
Agreement. EVO, Bank, you, and Guarantor agree that any and all disputes or controversies of any nature whatsoever (whether in
contract, tort or otherwise) arising out of, relating to, or in connection with (i) this Agreement, (ii) the relationships which result from
this Agreement, or (iii) the validity, scope, interpretation or enforceability of the choice of law and venue provisions of this Agreement,
shall be governed by the laws of the State of New York, notwithstanding any conflicts of laws rules (other than NY General
Obligations Law Section 5-1401), and shall be resolved, on an individual basis without resort to any form of class action and not
consolidated with the claims of any other parties. EVO, Bank, you, and Guarantor agree that all actions arising out of, relating to, or
in connection with (a) this Agreement, (b) the relationships which result from this Agreement, or (c) the validity, scope, interpretation
or enforceability of the choice of law and venue provisions of this Agreement shall only be brought in either the courts of the State of
New York sitting in Suffolk County or in the United States District Court for the Eastern District of New York, and hereby irrevocably
and unconditionally submit to the personal jurisdiction of those courts in any such action.
H. Amendments. EVO will notify you on your monthly statement of any new or increased fees. Except for any fee increases imposed
by Visa, MasterCard, Discover, or the debit network, you may cancel the Agreement without charge if you object to the fee changes
in writing within 30 days. If you do not object, and continue to process for 30 days after receiving notice of the fee change, you will be
deemed to assent to the new fees.
I. Severability and Waiver. If any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the
remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the
failure nor delay by EVO or Bank to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or
estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by the waiving party.
J. Independent Contractors. EVO, Bank and Merchant will be deemed independent contractors and will not be considered agent,
joint venture or partner of the other, except as provided in 6.C and 7.A(ii).
K. Employee Actions. You are responsible for your employees actions while in your employment.
L. Survival. Sections 4.A, 4.B, 6, 7, 8, 9, 13.C, 15, and 16.G will survive termination of this Agreement.
17. E-statements.
A. Merchant Account Statement. Upon opening a merchant processing account you will automatically have access to your monthly
merchant account statement electronically (an E-statement) by viewing it on line. This Agreement governs the electronic availability
of your E-statement. You agree to abide by the terms and conditions stated herein, and to access E-statements, as well as all
notices and initial and future disclosures regarding your E-statement, online. You acknowledge that by the third business day of each
month, your E-statement will be available online. You will be notified in writing of the website where you can access your
E-statement. Your E-statement will be accessible only through a secure Log In screen which requires the use of a unique User ID
and Password. You understand that you will not receive a monthly merchant account statement by U.S. postal mail, and that making
your E-statement available online constitutes EVOs compliance with delivery of your monthly merchant account statement. You can
print the E-statement or save the file to your computers hard drive or other disk in order to retain a copy of the E-statement. Your
E-statement can be accessed through the E-statement link for three consecutive months from the date the E-statement is first made
available. You further agree to receive all initial and periodic account disclosure information in an electronic format. All such
disclosures shall be provided in a clear, conspicuous manner that you can print and/or save using the hardware and software
specified below. You are also entitled to obtain a paper copy of all disclosures or E-statements upon written request, however such a
request does not constitute a withdrawal of consent to receive monthly E-statements. A fee may apply for providing such
documentation. You understand that you may withdraw your consent to receive E-statements, or change your email address, upon
30 days written notice to EVO. Please note that a withdrawal of consent does not apply to an E-statement that was furnished before
the date on which the withdrawal of consent becomes effective. PC Requirements: Viewing your E-statement on line requires a
personal computer with Adobe Acrobat and internet access through a standard web browser. The product version levels must be
supported by the respective vendors (i.e., Adobe, Apple, Mozilla, and Microsoft). EVO is not obligated to ensure that your
E-statements are accessible through outdated vendor products. In the event you are unable to access any of the information that has
been made available by EVO in electronic format, it is your obligation to notify EVO in writing immediately.
B. Reporting Of Errors. You must promptly view all E-statements, and immediately notify EVO in writing of any errors. Your written
notice must include: (i) Merchant name and account number; (ii) the dollar amount of the asserted error; (iii) a description of the
asserted error; and (iv) an explanation of why you believe an error exists and the cause of it, if known. That written notice must be
received by EVO within 30 calendar days after the E-statement containing the asserted error is first made available. Your failure to
notify EVO of any error within 30 days constitutes a waiver of any claim relating to that error. You may not make any claim against
EVO for any loss or expense relating to any asserted error for 60 calendar days immediately following EVOs receipt of your written
notice. During that 60 day period, EVO will be entitled to investigate the asserted error and we will notify you of the results of our
investigation.
C. Miscellaneous. EVO shall not be responsible for: (i) consequential or incidental damages caused by services performed by EVO,
its agents, or your Internet Service Provider (ISP); (ii) damages arising from unauthorized access to E-statement services; or (iii)
any costs associated with updating, modifying or terminating your software or hardware. EVO may change, suspend, or terminate
all or any aspect of this service upon written notice to you.
18. Electronic Signatures.
Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed
documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when:
(a) your electronic signature is associated with the Agreement and related documents, (b) you consent and intend to be bound by
the Agreement and related documents, and (c) the Agreement is delivered in an electronic record capable of retention by the
recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic
documents shall be governed by the provisions of E-Sign. By pressing Submit, you agree: (i) that the Agreement and related
documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related
documents, (iii) that you have the ability to print or otherwise store the Agreement and related documents, and (iv) to authorize EVO
or Bank to conduct an investigation of your credit history with various credit reporting and credit bureau agencies for the sole
purpose of determining the approval of the applicant for merchant status or equipment leasing. This information is kept strictly
confidential and will not be released.