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13-148.01 ETS Electronic Transfer System: Credit Card Processing a *Ts- 1111 Merrick Bank Merchant Application and Agreement Merchant#: 39475052511E MCC: 9399 VERGIANfNAME(DBAerTader e) WRPORO%GCIALNME(dUEnes0 CITY OF SPOKANE VALLEY LOCN1ONADORFSS CORPORAEAD:RETS(IfDielat) 11707 E SPRAGUE AVE STE 106 11707 E SPRAGUE AVE STE 106 CITY sac 2Ip CRY Sae LP SPOKANE VALLEY WA 99206 SPOKANE VALLEY WA 99206 IamtiosHae (xi :Ymft; Cugae eAnm Ccumen= (509)924-1000 (509)924-1000 WNrACrNME TEM1AlL ® W ADDRESS OONTACfPHONE PF1W. IDS DOUGLAS POWELL DPOWELL@SPOKANEVALLEY.ORG (509)720-5305 71-0914170 commis wwcATKNcursunmaTMa:r. ENrcARDSR ❑cb lEjas(dyes plmepreside) HAS FAOMaIE ARIiCYH rMTECRMO NWENIEAROSRPKR TWIBSS EVER IDIEESESSN oltER.NKIEDFROPACtP)WGPAYAENfCAMS ANYOIf®C BIISEa�¢S7 , ION/ ❑TM(T)vpdaacaylW PRINCIPLES Prbdple NI?Sec Plus MARK ARM het tax CALHOUN sat Isch.t dipx cask CITY MANAGER Hone Manse CrO' Sac As mteef&eh Hem)ip,., (509)720-5100 Du/Sere Emil Adis= MCAT.HOTINOSPOKANF.VAI.I.EYOR) C pax t htm ei S I Q Asmewt Lou I 0.j LO( SSN %Ourenhip Two rt MrVICeb%re_aco(' INaMdioc ao: sac as Daof0a4 HaePaeak Soo—Tao—cogo DU/Sem ErmTMdex G4c.. ) ) IST11 4.00VIev itf. c rc TWEOFDISINESS NATURE.OFRUSINLRS ❑Whilst/Sok hopasoiship ❑Panora* ❑OaWatln 0 ue Sac ❑Mali ❑Retail slip ❑Mm3pMmoatr Doom% El Resume 0Fa1Food ❑bba.PmOtDAM Podde SoSC) El More ❑PWid'Tbdet ®CQDama ❑fig ❑OSR ❑Coterie a ❑Nix Scam ❑pmoNa El Cep ❑Bond Ibm0pcsied 0 Oka la(ptroftacaAdr� 10 Yon 0 blondsSawed Sake ❑v NO Bro.pease berme Ii nol.ae mole Rados ceSente bdreolard. 1❑ F❑M❑ A❑M❑ 1❑ 1❑ A❑S❑ cU No DO MAW sfAcceptaete Meals*mei leend 'Mbdaer pommies lm Man Mae* Mari VMCWhme:s 179.036.00 Find*Rnal Cd%be=S 14919.00 named=ew ecaphe de 147TO OoditCahAripot 0 % 14Y1O 0 % Qcaladreener) Aemic rEspresswaarks 14919.00 Key Premed 0 % baerret 100 % (tR I:HTTPS•//CI-SPOKANFVAI I F 1 A,e,7ktxs 106.00 )adeTidetS 3506.00 Meanavf.URI.(st Marches Naar to pparenRraeent ®DRAM e ❑UPI tste Oder. 006 a®talANTUSEANDDEFIDZQtf58MCF7TWO Re:. ia.N..er i:..,.re ._or.t. r..NIL*.....Mk-. ❑W ®Ya(X)eO Plane preside) NAME: EMONEY VERSK►VNUMIOEER 4.7 DOFSNERaiANTUSEADR FI)t SENrirr)m,71R4 Ea I romttrr ®Mar ❑Vs IP)Rpbase Polak) !MO MIME NUMBER HAS MERCHAlTOROWNERFRtINCI SEVOtpIIID MOM RAt.9'.R)line adlorretStWal DANKRUPTCY ®pm 0 Yes am prose paaldr) Eyivoiaa DANK ACCOUNT INFORMATION: RIMei rR Aavta ❑SavivaMoms Baklmac MOUNTAIN WEST RANK AnaBaaaaa.a,r«rayx res.�.e.baail.Ruaea�p.axa 7Mefii ADARoraiaa Access e(tSIAZ Cerra Paget m By smith%ae atom doomdlrPoaxdow parrs admiring doat la:adlaab said amount SCHEDULE A:VI MSIASTERCAED/DISCOVERRTARMERICAN EXPRESS DISCOUNT RATES&FEES: You have the option o(aaxpting MasterCard aedt cards,Visa credit cards,American Express CARD FEES: OTHER FEES:_ cult cards,aedt cards issued byDiscover, ,IMk]tCHANGEMost)PIAis: A(plialonPea $0.00 ceps Fee $0.00 MasterCard signature debit cards(MasterMoney Cards)or Visa signature debit muds(Check CREDIT: %Madap Mafanap Mott Mednmtbe $25.00 Char tern Fee $1M Cards),a debit cards issued by Discover.You VSWS 020% 50.10 RasaaoaniaeFis $0.00 Aaas{PCIFae $150.00 may elect to accept any or all of these card types MCNS 020% S0.10 R.bdv Sow Fee $0.00 Mbadre.IK7e,e $0.00 for payment If you do not specifically indicate DISC IPS 0.50% S0.10 a%,,,te At S7S0 FMaxsnw Pa $0.00 ol1erwise.your application will be processed to accept ALL MasterCard,American Express, AMEX BPS 020% 50.10 A(71pa $0.00 Discover,and Visa card types. OEM TIPS% %Mbaap Pnatmag MiceU.R1ee - $0.00 Elected Visa,OIscover,American Espreaor °ma w.DIA 0.30% $0.10 F bayhbsHyrm S0.00 MasterCard card typ:s NOIto accept: Sae Imperil= IaaQad Baeed%mayoa reaiee.doer Merchant lase die appropriatefacatlas.equipment.Embry.personal Ma'a�01t ®Onai El Ike. - -- sad Rome et pond'a aware tMrbudan67 841611)T ❑f�t Stapdt ❑4Cr Oa.m.*: 0 !Mudd Rift ❑Reed= El NA ®Te' Aro2ore& L'J Coaererciel ❑ IWmbi ❑ Rdaadat (:sneak SpanFouC� 0 0400�7 El !tit-27pn 0 SSOI-Sass mscei.1npWF — •Re.ct..kilts tlefew ortiac igaiiLVx.vtube viehed the s.eean end iao,makionnme 9TIPBAK MOTTO QUESTIONNAIRE:COMPLETE THIS SECTION IF PROCESSING LESS THAN 70%CARD PRESENT: Who petaetageof sales ate a BndeasesConsmr % hafniad Consume Mailed ofMndabg ❑Mtaspgrltorivla ❑7UevidaJ0.,?o ❑hems ❑Theca Mill BradleeamrorCrniag ❑OubamdretnmhNgSaki CI Mee Ilrmlageofpeo&nssddaia: Tclgeme(bias X gtol FatOekts % Wmaados X Odes:_ z Wlepmarse de ate! Made ❑Fuld/nog Center ❑Omer idle earls amain end bdosabs Into the pewdng=mend [3 Madura ❑Forgets=Center ❑Comma ❑oiler Waal cud wowed dor mimtalanner k lethal is pgmndmd moped bySSLabated ❑Ma ❑Yes If Machin(sanemmwscee Machata,is Macrae Certificate utilised? ❑N ❑Yes Ems phseptmide de fotoalaE Midas CadfoteNathr Cahicaemn Ep,Dam IsCesdide ❑rdnidol ['Stared Co mu own depoedaA enionT ❑No ❑It' iUepeductstoedet a k:sinsbemt7 ❑lb Du. Um alma isdame Maehage audarkaion laswbgm8 pearl sips! des WM shim tepraarl Hsaul rlioadby: ❑Madam ❑Qkr Delivery maim mqnneQ! ❑Yre ❑Ile IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT To help the government light the footling of termriee and smrcy buodedq activities. Federal boo cgndtes all finaahl institutions to obtain verify.sea record information that Identifiers meek pas oho opals an account. What this memo for yaw When you open an accosts.we sydl ask fen your name,address.dote of bath.end otte information that will albw us to idedfy you We sill oleo ask fora copy of yes driwere license or other idertiAiq documents MERCHANT APPLICATION AM/AGREEMENT ACCEPTANCE(Capitalized terms sat defined In this Acceptance action hem the amigo set forth In the Tams and Coediting section) 'By eeendag this Machu! Appiletbn on behU of do merchant described above Chlachantl. the undersigned idhidml(s) emends). neonatal. sod almaledgn(s) that (0 All information wnninol In this Marlon Appkalioo CApptiotore)is sae.ermet and complete es of the date of this Apish:Moe di)If the Merchant Is a ettpendea. denied lability company.or paruetsNp• the hdMdmlUl meeting this Apple:Moe Moe de re clam lead sower and authority to complete and submit this Applieston en behalf of tar Madnne awl to make and provide the sdiewledgements.euthethadows eat apmoms as fora Sods on behalf of the Madam and fedvidually: Rd)The information eodained he lids Application is provided for the purpose of oblebdng•or maintaining.a mectant acorn the the Medea with the Sponsor Bank CRANK')and BANK will rely os the information provided Ionia in its mammal process and is Ming the applicabb Discount Rate. Apposed Meege Ticket.and Appeased Monthly Baduvd WtNse (h•)BANK is adabed to kosstgole. either dough hs one agents or through eedk bnumahgembs,the eedle of the Merelmt ad arch person listed on this Application (v.DANK pill Aandoe ell rote,f and dant=and seta Maehot of the appoovod Teo and by Medam's sbndsdos and acceptance of Medad3 Item sculcd transedam Meretant agrees to pay such apposed fear (oi) The Merchant Apeman will out lake effect toll Meant has the approval by BANK and a merchant number has bra (cord to merchant and (ill The udeniped bra =caved mad. makrsud, the Merchant Apre ancnt. which is incorporated basin by re thence thetar,ad was on behalf of the maxim m be boned by the tam of such Madura Apeman The merchant no otiose behalf this Application is being menthol edoo*kdpes that if this Application is bdop submittal to Markt Bank es the Sponsor Bads.ITS CORPORATION ail may ale be a party to ids Machin Agaeoan. In ruck or, Merchant ademe lakes that ITS CORPORATION will rely on the npresen tiau ad mummies at forth tee this Application for Merchant Agreement and West otherwise specified or prohibited by Associatonorapptkele law.ITS CORPORATION sill Moe all the fights of BANK under this Application adAgmemeet ❑Bydmdiog this bon h ems odor log rnnoerclel overkethhgemaodoltomfeomAmeden Express MERpal di: � � BANK Principal di: X a By: Date: Net Name MA CALH UN mt. 1/21/ Nada end Tide En CORPORATION: Principal e* X PEW Name. _,'t 1 S i Q (CAy(0 f Dme:ran- (7 N ad,,,�. HAD[AKKAD-VP W� CONTINUING PERSONAL GUARANTY PROVISION—PERSONAL GUARANTOR(Capitalised terms ant defined se tbh Gsarenty seethe hose the meanings set forth below In the hams W Gladdens seethe) By signing below, each individual or mein CGsmmf)jointly and scseragy (if there is moss Wan one Guarantor) sod uromlitionnity guaratm to KIN CORPORATION end BANK the prompt payment and tell and complete detfamer a of d ohfgatoss of dm Martian idedified above ardor dm Mkcham Agreerm, as eoedd front time to time Including. aided limitation aV pemiso ad covenants of the Merchant and all amounts pope*by the Meehan order the Mbechm Apeeemak mcmdiq. without Bmkabq deader, imam cons ad other expenses.such as atmtmyt Tau end court coma This mare mini other things, that ITS CORPORATION err BANK can demand performance or paymas from sag Oamntor if the Medham fail to perform any obligation or pay man doe M chant ova mda doe Aptomera Roth Guarantor agrees that his Sr ha rabidly meter ads parity tall sot be United or canceled beaus (I) the Meehan Agreement at mt be enforced agatmt the Made for seep treason. Iodating. niebod Ibrdmbn. bmdon t y pmaedlogt (2) either EIS CORPORATION or BANK admen m ehages or aediframm 10 the Madam Apeman with or without notice so Guarantor. (3) EIS CORPORATION or BANK rekLa any other Comma or the Merchant from s ty obligation ode the Machu: Agreenmot CO any the aviation. or miler of any Walk audedey affects the rights of either EIS CORPORATION. Memtam, or BANK miler the Method Agestee K atd'or (S) am-thing the happen that may affect the tights of either ETS CORPORATION or BANK against the M echae or env oiler Gmrwot Each Guarantor Amber agrees dot (a) ITS CORPORATION and DANK each may deep enflaming am-of is rights miler this smarty ty Ohm babng sunk sighs and herby wakes arm•applicable Statue of LmduN: (b) ETS CORPORATION seed BANK caeh nth Amend psymml from anti Guramr abbna feel sekhg payer'fees the bkrhut or may tthe Gsomor a tom seep smoky kid by dm BANK:and (cl such Gomm will grey all court costs. amroe)'s f«s,and eoDatbs coo Incurred by either ETS CORPORATION or We BANK in emulation with the enlacement of the Mocha t Agnomens or this Guaranty,*Maher or not Wee is s lawsuit. end such ad:!need fees and coif as may be*teed by a awn If the Machete ha cotpostion orMelted Iubdtey eogagr,dde theme son be mated by a paaeipol oremBible of klechd. • • Principal II: Principal 12: Pa d Name x MARK CALHOUN Data: Print Name:X WIC BANK DISCLOSURE Member Bank Information:Merrick Bank,135 Crossways Park Dr North,Suite AI00 Woodbury,NY 11797.Phone(800)267-2256 Important Batik Responsibilities: I. Bank inky Hsi ni kOak rot EISCOBPOMTnkl mt had aladd9eratdaim!widenta finis kite Maclm. 1&bikinmkita:tRnsible far addktp Masbate;onpnJnnt Hstaptts(agagtmmitimxkkhihichimenisi amply- S.btrnkk Bark out best ptkdpd(dgm)to th:hfodaaArarat hkrrlck Bilk rot EiSCORPORATION bafdadn(dtk+ad mewl al rime aids dished lkmmtlasR Merchant Information: Refer to Merchant Application Important Merchant h7> ,r Responsibilitiesi I.C�,O�II�p�'.Hg�uldic d m�lmldirdimWmak)'=i lC'�1CgJts S.R mldv6 aienktgaid 0nd111g WilmotA�mt. 2faadadafuabadabeloweQa6Bddthtslmhk. 1Coaplying mhhNn-topaadastepdadaa. Tie gommBhls Iladatomdo not comic*twos dtMbiticbittArmenadsepmddodtoarue dciAnimmdnsadr sow Wyman obaptlwnof etch piny addui is Hu!Ambit-►mick Bait-istlsaleameaAmdu skald that:d iInsurer problems. Prinipd it: a (J,h1 %'t_ p gL J( all— CALHOUNPM (yy{��[[��((�� Ditc z/i1/� P�.r e�S;�T0.� a-t�t7 TERMS AND CONDITIONS Subject to the requirements of applicable CardAssodadon rules,ETS CORPORATION and Bank may allocate their respective duties and obligations between themselves as they deem appropriate at their sole discretion,and EIS CORPORATION or Bank may joiody or individually assert or exercise the rights or remedies provided tb the Bank hereunder.In consideration of the mutual covenants herein,Bank,ETS CORPORATION and Merchant have agreed as follows ARTICLE I-DEFINITIONS 1A1 'Account'means a commercial checking account or demand deposit maintained by Merchant as set forth in Section 5.16 for the crediting of collected funds and the debiting of fees and charges under thisAgreeatenL L02 'ACTT'means the Automated Clearing House paperless entry system controlled by the Federal Reserve Board. 1.03 'Agreement'means these terms and conditions and any supplementary domments indicated herein,and valid schedules and amendments to the foregoing. t.04 'American Express'means the Cards bearing the Marks of,and Card Network operated by.American Express Travel Related Services Company,Inc.or its affiliates 1.05 "Authorization"means a computerized function ore direct phone call to a designated number to examine individual Transactions to obtain approval Iron the Card Issuer to charge the Card for the amount of the sale 1.06 'Bank'has the meaning set ibrth on the Merchant Application. 1.07'Card'means(i)a valid credit card in the form issued under license from Visa USA,Inc.Visa International,Inc or MasterCard International,Inc('Bank Card')or Discoverer or(ii)any other valid credit card accepted by Merchant by agreement with Bank and EIS CORPORATION. 1.0E 'Card Association'means Via USA,Inc,Visa International,Inc.,MasterCard International,Inc.or Discover or any other Card Issuer that provide Cards that are accepted by Merchant by agreement with Bank and ETS CORPORATION. 1.09 'Card Issuer'means the financial institution or company which has provided a Card to a Cardholder. 1.10 'Card Not Present(CNP)"means that an Imprint edit Card is not obtained at the point-of-sale. 1.11 'Cardholder'(sometimes referred to as"Card Member in certain Card Network materials)mans the person whose name is embossed upon the face oldie Card. 1.12 'Cardholder Information'means any non-public,sensitive information about a Cardholder,including any combination of Cardholder name plus the Cardholder's social security number, driver's license or other identification number or credit or debit card number,or odter bank account number. 1.13 'Ch argeback'means the procedure by which a Sales Draft(or disputed portion thereof)is returned to Bank by a Card Issuer because such item does not comply with the applicable Card plans operating regulations. 1.14 'Credit Voucher'means a document executed by a Merchant evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account. 1.15 'Imprint'means(i)an impression on a Sales Draft manually obtained from a Card through the use of an imprinter,or(ii)the electronic equivalent obtained by swiping a Card through a terminal and electronically capturing Card Data and printing a Sales Draft. L16 'Mid or Non-Qualifying Transaction'means any sale Transaction that fails to qualify for lowest interchange rate assigned by the applicable Card Association for the standard card industry code of Merchant and which may be charged fees as set forth in lc di A. 1.17 'Sales Draft"means the paper form,whether demonically or manually imprinted,evidencing a sale Transaction. 1.1E 'Transaction'means any sale of products or services,or credit for such,from a Merchant for which the Cardholder makes payment through theme deny Card and which is presented to Bank for collection. 1.19 'Voice Authorization'means a area phone call to a designated number to obtain credit approval on a Transaction from the Card Issuer,whether by voice or voice-activated systems. ARTICLE II-CARD ACCEPTANCE 2.01 Iienerine Cards (a)Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services,subject to applicable Card Association odes requiring Merchant to elect whether it will accept credit only,debit only or both debit and credit Cards. Merchant's election is set forth in the Application.(b)Merchant will not establish mininaan or maximum amounts for Card sales as a condition for accepting any Card.(c)Merchant will no require any Cardholder to pay as a surcharge any part of any account or charge imposed upon Merchant by this Agreement,whether through any increase in price or of envise require a Cardholder presenting a Card to pay any charge or price as a condition of sale that is net also required from a customer paying cash.However,Merchant may not,by this tam,be prevented from offering discounts to customers for cash purchases.(d)Merchant will not engage in a Card Transaction(other than a mail order,telephone order,atmmerce or preautlmrized sale to the extent permitted under this Agreement)if the person seeking to charge the putdsare to his or her Card account does ea present the Card to permit Merchant to compare the signature on the Card to the signature on the Sales Draft and obtain an Imprint cc otherwise use the physical Card to complete the Transaction. 2.02 Advertiatne. (a)Merchant agrees to prominently display the promotional materials provided by Bank and EIS CORPORATION in its place(s)of business.Use of promotional materials and use of any trade name,trademark service mark or logo type('Marls')associated with Card(s)still be limited to Informing the public that Card(s)will be accepted at Merchant's place(s)of business Merchants'use of promotional materials and Marks is subject to the direction of Bank and EIS CORPORATION.(b)Merchant may use promotional materials and Maria only during cite tens of this Agreement and will inmedardy cease use and rearm any inventory to Bank or EIS CORPORATION upon any termination thereof.(c)Merchant will not use any promotional materials or Maria associated with Visa,MasterCard or Discover in any way which suggests or implies that either endorses any goods or services other than Card payment services 2.03 Card Accentance, When accepting a Card,Merchant will follow the steps provided by Bank and EIS CORPORATION for accepting Cards and w ll (a)Determine in good faith and to the best of its ability that the Card is valid on its face(b)Obtain Authorization from the Card Issuer to charge the Cardholder's account;(c)Unless the Sales Draft is electronically generated or is the result of a mail,phone or prauthorized order,(i)obtain an Imprint of the Card including embossed data from the merchant imprinter plate, and(ii)obtain the Cardholder's signature on the Sales Draft and compare that signature to the signature on the Card;(d)Enter a description of the goods or services sold and the price thereof(including any applicable taxes);(e)Deliver a true and completed copy of the Sala Draft to the Cardholder at the time of delivery of the goods or performance of the services,or,if the Sales Draft is prepared by a point-of-sale terminal,at the time of the sale;(I)Offer the Sales Draft to Bank for purchase according to Bank's procedures and the terms of thisAgreanant; and(g)Make an Imprint of the Card,if the Transaction is net based upon a mail,phone or pre-authorized order. 2.01 Authorization,Merchant will obtain an Authorization for all Card sales.If Merchant canna,for any reason,obtain an electronic Authorization through the use of a terminal,Merchant will request a Voice Authorization from Bank's designated authorization center and will legibly print the authorization number on the Sales Draft Merchant will not obtain or attempt to obtain authorization from Bodes authorization center unless Merchant intends to submit to Bssk a Transaction for the authorized amount if Authorization for the Transaction is given. Merchant may not divide a single Transaction between two or more Sales Drafts on a single Card to avoid Authorization limits that may be set by the Card Issuer.Merchant acknowledges that an Authorization provides only that the Cardholder account has sufficient eredil available to cover the amount oldie current sale and that an Authorization is not a guarantee that the Transaction will not be subject to dispute or Cbargebadc and does not warranty the Cardholder's identity.Merchant may not attempt to obtain an authorization by successivdy decreasing the sale ammmt.Bade or EIS CORPORATION may refuse to purchase or process any Sales Draft presented by Merchant:(a)unless a proper authorization or approval code has beat recorded on the Sales Draft(b)if Bank or ETS CORPORATION determines that the Sales Draft is or is likely to become uncdlectble from the Cardholder to which the transaction would otherwise be charged;or(c)if Bank or ETS CORPORATION has reason to believe that the Sales Draft was prepared in violation of any provision of this Agreement Merchant win use,and may not circiunven,fraud ideetfiadoa tools requested by Dank or Ers CORPORATION.including Address Vesifiatim System procuring and CVV2 processing,and acknowledges that the use of these tools may prevent Merchant from accepting certain Cards as payment Merchant acknowledges that its use of fraud identification tools may net prevent fraudulent Card usage,and agrees that any fraudulent Transaction may ultimately result in a Chargeback,for which Merchant retains f ell liability under this Agreement. 205 Retention end RetrievalefCards (a)Merchant will use its best efforts,by reasonable and peaceful means,to retain or recover a Card(i)when receiving suds instructions when making a repast for Authorization or(I)if Merchant has reasonable grounds to believe the Card is counterfeit,fiatdtdent or stolen(b)The obligation of Merchant imposed by this section to retain or recover a Card does not authorize a breach of the peace or any injury to persons or property,end Merchant will hold Dank and EIS CORPORATION hornless from any claim arising Item any injury to person or property or other breach of the pace in connection with the retention orrecovery of a Card. 2.06 j4altinde Transaction Records:Partial Consideration, Madura will net prepare more than one Sales Draft fora single sale or fora single item but will include all items of goods and services purchased in trainee Transaction in the total amamt on a single Sales Draft except wader the following drasnstanoes;(i)For purchases in separate departments of a multiple department store;(ii)For partial payment,installment payment,ddayed delivery or an advance deposit;or(ui)For delayed or amended charges governed by rules for travel and entertainment merchants and Transactions. • 2.07 Telephone Orders.Mall Orders.eCammerre.Preautherized Orders and Installment Orden, (a)Unless Merchant has been approved by Bank to accept mail,phone or eeommerce orders,Merchant warrants that it is a walk-in trade business,located in a retail business place where the public moves in and out freely in order to purchase merchandise or obtain services. If Bank and ETS CORPORATION determines Merchant has accepted unapproved Card Transactions without Bank's authorization,which are placed by telephone,generated through telephone solicitation,mail order or other means that does not create a Sales Draft that bears the Card imprint and Cardholder's signature,this Agreement will be immediately terminated and the value of all Sales Drafts collected from the first day of processing mew be charged back to Merchant and all funds therefrom will be held pursuant toArtide IV.(b)Unless approved by Bank,this Agreement does not contemplate regular acceptance of Cards for sales accepted by telephone,mail or ecommerce nor through preauthoeiized orders. Wan occasional Card Transaction is made by mail,phone or preauthorized order,the Sales Draft maybe completed without the Cardholder's signature or an lmprint,but in such case Merchant will create a Sales Slip containing Cardholder data,an Authorization number,the sale amount and the letters'MO',TO'or'PO',as appropriate Receiving an Authorization will not relieve the Merchant of liability for Chargeback on arty Transaction for which the Merchant did not obtain an Imprint or the Cardholder's signature. 2.00 I,odzine and Vehicle Rental Transactions, (a)Merchant must estimate and obtain Authorization for the amount of the Transaction based upon the Cardholder's intended length of stay or rental. Additional Authorization must be obtained and recorded for charges actually incurred in excess of the estimated amount.(b)Regardless of the terms and conditions of any written preauthoeization form,the Sales Draft amount for any lodging or vehicle rental Transaction will include only that portion of the sale,inducting any applicable taxes,evidencing a bona fide rental of real or personal property by Merchant to the Cardholder and will not include any consequential charges.Nothing contained herein is intended to restrict Merchant from enforcing the terms and conditions of its preauthorization form through means other than a Card Transaction. 2.09 Jieturns and Adjustments:Credit Vouchers. (a)Merchant's policy for the exchange or return of goods sold and the adgustment for services rendered will be established and posted in accordance with operating regulations of the applicable Card Association's regulations.Merchant agrees to disclose,if applicable,to a Cardholder before a Card sale is made,that if merchandise is returned;(i)no refund,or less thin a full refund,will be given;(ii)returned merchandise will only be exchanged for similar merchandise of comparable value (iii)only a credit toward purchases will be given;or(iv) special conditions or circumstances apply to the sale(eg,late delivery,delivery charges,or other non-credit terns).(b)If Merchant does not make these disclosures,a full refund in the form of a credit to the cardholder's Card account must be given Disclosures must be made on all copies of Sales Drafts or invoices in letters approximately 1/4'high in dose pmeimity to the space provided for the Cardholder's signature or on an invoice issued at the time of the sale or on an invoice being presented for the Cardholders signature (c)Any change in Merchant's return or cancellation policy must be submitted in writing to Bank and EIS CORPORATION not less than fourteen(14)days prior to the change.Bank or ETS CORPORATION reserves the rights to refuse to process any Sales Draft made subject to a revised return or cancellation policy of which Bank and ETS CORPORATION have not been notified as requited herein 2.10 Cash Pavements,Merchant will not receive any payments from a Cardholder for charges included in any Transaction resulting from the use of any Card nor receive any payment from a Cardholder to prepare and present a Transaction for the purpose of effecting a deposit to the Cardholder's Card account. III Cash Advances:Scrip Purchases.Merchant will nut deposit any Transaction for the purpose of obtaining or providing a cash advance either on Merchant's Card or the Card of any other party and will not accept any Card at a scrip terminal.Merchant agrees that either such action will be grounds for immolate termination of this Agreement. 2.12 Dunlleate Transactions.Merchant will not deposit duplicate Transactions.Merchant will be debited for any adjustments for duplicate Transactions and will be liable for any Chargebacks which may result therefrom. 2.13 Deposit of Fraudulent Transactions.Merchant will not accept or deposit any fraudulent Transaction and may not under arty circumstances present for processing or credit,directly or indirectly,a Transaction which originated with any other merchant or any other source other than Transactions arising from bona fide purchases from Merchant for the goods and services for which Merchant has been approved under this Agreement.If Merchant deposits any prohibited Transaction.Merchant maybe immediately terminated,and Bank may hold funds and/or demand an Escrow pursuant to Sections 4.02 and 5.06;further,Merchant maybe subject to the Visa and MasterCard and Discover reporting requirements under the terms of this Agreement.Merchant understands and agrees that it is responsible for its employees'action,whether negligent or fraudulent,while in its employ. 2.14 Collection of Pre-eslstine Debt.Merchant will not prepare and present to Bank for purchase any Transaction representing the refinancing of an exiting obligation of a Cardholder including, but not limited to,obligations(i)previously owed to Merchant,(ii)rising from the dishonor ore Cardholder's personal cheek,Chargeback,and/or Oil)representing the collection of any other pre-existing indebtedness,including collection of delinquent accounts on behalf of third parties. 2.15 Data Seeorlt9/Personal Cardholder Information Merchant may not,as a condition of sale,impose a requirement on Cardholders to provide any personal information as a condition for honoring Cards unless such information is required to provide delivery of goods or services or Merchant has reason to believe the identity of the person presenting the Card maybe different than that of the Cardholder.Merchant will not,under any circumstances,release,sell or otherwise disclose any Cardholder Information to any person other than Bank or ETS CORPORATION or the applicable Card Association,except as expressly authorized in writing by the Cardholder,or as required by law. (a)$efeexards.Merchant will maintain appropriate administrative,technical end physical safeguards for all Cardholder Information These safeguards will(i)insure the confidentiality of Cardholder Infotmatiorr,(ii)protect against any anticipated threats or hazards to the sedwrity or integrity of Cardholder Information;(iii)protect against unauthorized access to or use of Cardholder Information that could result in substantial harm or inconvenience to any Cardholder,and(iv)properly dispose of all Cardholder Information to ensue no unauthorized access to Cardholder Information.Merchant will maintain all mch safeguards applicable to Merchant or Bank or ETS CORPORATION in accordance with applicable federal and state laws,rules regulations and guidance. (b)Compliance with Card Association Rules,Merchant represents,warrants and covenants that it is and will remain throughout the tom of this Agreement in compliance with Card Association bylaws,operating regulations and odes related to data security,data integrity and the safeguarding of Cardholder Information inducing the Payment Card Industry Data Security Standard("PCI"),Discover Information Security Compliance("DISC"),MasterCard'a Site Data Protection Program("SDP"),the American Express Data Security Requirements("DSR"),and Visa's Customer Information Security Program f C1tsr}in effect and as may be amended.supplemented or replaced.Merchant will cause all of its service providers,subcontractors and agents to comply with PCI,SDP,DISC,DSR end CISP requirements at all times.Merchant will report any non-compliance immediately to Bank or EIS CORPORATION.To accomplish the foregoing,Merchant will encrypt all debit,credit or stored value card numbers whether in storage,transport or backup and will not store data security codes on its systems.network or software (c)Annual Certification Merchant mil provide an annual certification to Bank or ETS CORPORATION if requested by Bank or EIS CORPORATION(in a form acceptable to Bank or ETS CORPORATION)certifying compliance with the data security provisions of this Agreement.including compliance with applicable Card Association requirements such as PCI, SDP,DSR and CISP.Merchant will provide annual certifications for Merchant's service providers,subcontractors and agents (d)Inform:,lion Use Umitations,Merchant may not sell,disclose,or otherwise make Cardholder Information available.in whole or in part in a manner not provided for in this Agreement,without Bank's or EIS CORPORATIONS prior written consent Merchant may,however,disclose Cardholder Information to its service providers,subcontractors and agates who have a need to know such information to provide the Services described in this Agreement,provided that those individuals or entities have assumed confidentiality obligations in accordance with this Agreement,or as they be required by legal process or applicable federal and state laws,rules,regulations and guidance and have entered into a written agreement with Merchant containing Merchant's and such individuals'or entities'agreement to the foregoing data security provisions including compliance with Card Association rules,regulations or bylaws. (e)Resnonse to Unauthorized Access,Merchant will notify Bank or ETS CORPORATION within 24 hours after it knows of any breach in security resulting in an unauthorized access to Cardholder information Merchant will provide any assistance that Bank or ETS CORPORATION,the issuing bank of any Cardholder,and their regulators and the Card Associations deem necessary to contain and control the incident to prevent further unauthorized access to or use of Cardholder Information Such assistance may include,but not be limited to, preserving records and other evidence and compiling information to enable Bank or ETS CORPORATION and the issuing bank(s)or the Card Associations to investigate the incident and provide assistance and cooperation to(a)file suspicious activity reports(as applicable),(b)notify their regulators(as applicable);and(e)notify the affected Cardholder(as required}Unless the unauthorized access was due to Bank's acts or omissioro,Merchant will bear the cat of notifying affected Cardholder. (f)Jrincellanemes,Merchant may not make a claim against Bank or ETS CORPORATION or hold Bank at EIS CORPORATION liable for the acts or omissions of other merchants, service providers,Card Associations,financial itstitmions or others that do not have a written contractual relationship with Bank or ETS CORPORATION or over which Bank or EIS CORPORATION hasnocorarol.Theseprovisionssupplementaugnnentandareinadditiontoobligationsofindemnification,auditconfidentialityandothersimilarprovisions contained in this Agreement.This Section and each of its subsections will survive this Agreement's termination.Merchant may not store in arty system or in any manner discretionary Card read data inducing without limitation CVV2 data,PIN data,address verification data or any other information prohibited by Card Association Rules.Merchant agrees that Provider may disclose to any Card Network information regarding Merchant and Merchant's Transactions to any Card Network,and that such Card Network may use such information to perform its responsibilities in connection with its duties as a Card Network,promote the Card Network.perform analytics and create reports,and for any other lawful business purposes, induding commercial marketing communications purposes within the parameter of Card Network Card acceptance,and transactional or relationship communications from a Card Network.A Card Network may use the information about Merchant obtained in this Agreement at the time of setup to screen and tor monitor Merchant in connection with the Card Network marketing and administrative purposes. • Merchant agrees it may receive messages from a Card Network,including important information about Card Network products,services,and resources available to its business.These messages may be sent to the mailing address,phone numbers,email addresses or fax numbers of Merchant Merchant may be contacted at its wireless telephone number and the communications sent may include sutodaled short message service(SMS or'tee)messages or automated or prerecorded calls,Merchant agrees that it may be sent fax commmmiatient 2.16 Compliance with Card Association Rules,Merchant will comply with and conduct its Card activities in accordance with all applicable Card Association rules and regulations.Failure to comply with such rules and regulations may result in Merchant being terminated for cause and listed on various Card Association and industry databases,including the Terminated Merchant File and the Merchant Alert to Control Ffigh Risk Merchants file("MATCH").Merchant may not:(a)accept Cardholder payments for previous Card charges incurred at the Merchant location;(b)establish a minimum or maximum transaction amount,as a condition for honoring a Card;(c)require a Cardholder to complete a postcard or similar device that indudes the Cardholder's account number,card expiation date,signature,or any other card account data in plain view when mailed;(d)add any surcharge to transactions;(e)add any tax to transactions,unless applicable law expressly requires that Merchant be pennined to impose a tax(any tar amount,if allowed,must be included in the transaction amount and not collected separately),(f)enter into interchange any transaction receipt for a transaction that was previously charged back to Bank and subsequently returned to Merchant,irrespective of Cardholder approval(Merchant may pursue payment from the Cardholder outside the Card Association system);(g)request or use an account number of any purpose other than as payment for its goods or services;(h)disburse funds in the forrn of travelers cheques,if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant;(I)disburse funds in the form of cash,unless:(i)Merchant is a lodging or cruise line merchant disbursing cash to a Cardholder,(Ii)Merchant is dispensing funds in the form of travelers cheques,Cards,or foreign cnrency,or(iii)Merchant is participating in the Card Association cash back service;0)accept a Card for the purchase or scrip;(k)accept a Card for manual cash disbursement.Q)accept a Card to collect or refinance existing debt that has been deemed uncollectible by the Merchant providing the associated goods or services;or(m) enter into a Transaction that represents collection of a dishonored check.Merchant will pay all Card Association fines,fees,penalties and all other assessments or indebtedness levied by Card Associations to Bank or ETS CORPORATION which are attributable,at the Bank's or ETS CORPORATION'S discretion,to Merchant's Transaction processing or business.(n) accept a Card for an unlawful Internet gambling transaction.Merchant will pay all Card Association fines,fees,penalties and all other assessments or indebtedness levied by Card Associations to Bank or ETS CORPORATION which are attributable,at tyre Bank's or ETS CORPORATIONS discretion,to Merchant's Transaction processing or business. 2.17 )Merchant's Business,Merchant will notify Bank or ETS CORPORATION immediately if it intends to(a)transfer or sell any substantial part of its total assets,or liquidate•,(Is)change the basic nature of its business,inducing selling any products or services not related to its current business;(c)change majority ownership or transfer control of its business;(d)enter into any joint venture,partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant'a business;(e)alter in any way Merchants approved monthly volume,average,or maximum 6cken(0 changes itiretum policies or to another fulfillment house different from those identified in Merchant Application;or(g)changes to is Account Merchant will notify Bank or ETS CORPORATION promptly in writing if it becomes subject to any voluntary or involuntary bankruptcy or insolvency petition or proceeding Merchant's failure to provide notice as required above maybe deemed a material breach and will be sufficient grounds for termination of Merchant and for Bank's or ETS CORPORATION'S exercise of all its rights and remedies provided by this Agreement.If any change listed above occurs,Bank or ETS CORPORATION may immediately terminate this Agreement. 2.18 Merchant's Wnrrnnties,Merchant represents and covenants that(a)all information contained in the Merchant Application or any other documents delivered to Bank or ETS CORPORATION in connection therewith is true and complete and properly reflects Merchant's business,financial condition and principal partners,owners or officers:(b)Merchant has power to execute.defiver and perform this Agreement,and this Agreement is duly authorized,and will not violate any provisions of law,or conflict with any other agreement to which Merchant is subject;(c)Merchant holds all licenses,if any,required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so;(d)there is no action,suitor proceeding at law or in equity now pending or to Merchant's knowledge,threatened by or against or affecting Merchant which would substantially impair its right to any on its business as now conducted or adversely affect its financial condition or operations;(e)each Sales Draft presented to Basic or ETS CORPORATION for collection is genuine and is not the result of any fraudulent or prohibited Transaction or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement;(I)each Sales Draft is the result of a bona fide Card Transaction for the purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Sales Draft;(g)Merchant has performed or will perform all of its obligations to the Cardholder in connection with the Card Transaction evidenced thereby;(h)Merchant has complied with Bank's or ETS CORPORATION'S procedures for accepting Cards,and the Cud Transaction itself does not involve any element of credit for arty other purposes other than as set forth in this Agreement, and is not subject to any defense,dispute,offset or counterclaim which may be raised by any Cardholder under the Card Associatons'rules,the Consumer Credit Protection Act(15 USC §1601)or other relevant state or federal statutes or regulations and(i)any Credit toucher which it issues represents a bona fide refund or adjustment on a Card sale by Merchant with respect to which a Sales Draft has been accepted by Bank or ETS CORPORATION. 2.19 jvlerchant'a Covenants.Merchants covenants that:(a)each Transaction Record presented to Provider for collection is genuine and is not the result of any fraudulent activity,or a Transaction prohibited by a Card Network,or is not being deposited on behalf of any business other than Merchant as authorized by this Agreement;(b)each Transaction Record is the result of a bona fide purchase of goods or services from Merchant by the Cardholder in the total amount stated on the Transaction Record;(c)Merchant will perform all of its obligations to the Cardholder in connection with die Transaction evidenced thereby;(d)Merchant will comply with Provider's procedures for accepting Cards and the Transaction itself will not involy*any element of credit for any other purposes other than as set forth in this Agreemen0,and will not be subject to any defense,dispute, offset or counterclaim which maybe raised by any Cardholder under the Network Rules,the Consumer Credit Protection Act(IS USC 1160I)or other Law;and any Credit Voucher which Merchant issues represents a bon fide refund or adjustment on a Transaction by Merchant with respect to which a Transaction Record has been accepted by Provider. 2.20 Third Parties.Merchant may desire to use a third-party service provider to assist Merchant with its Transactions.Merchant shall not utilize any such third parties unless Merchant has disclosed such use to Provider previously in writing,and unless such third party is fully compliant with all Laws and Network Rules.Any third party used by Merchant must be registered with the Card Network prior to the performance of any contracted services on behalf of Merchant.Further,as between the parties to the Agreement,Merchant will be bound by the acts and omissions of any third-party service provider and Merchant will be responsible for compliance by such third-patty service provider with all Laws and Network Rules.Merchant will indemnify and hold harmless Provider from and against any loss,cost,or expense incurred in connection with or by reason of Merchant's use of any third parties,including third-party service providers.Provider is not responsible for any third-parry service provider used by Merchant,nor is Provider required to process any Transaction which Provider receives from Merchant or its service providers in any format not approved by Provider:Provider has no responsibility for,and shall have no liability to Merchant in connection with,any hardware,software or services Merchant receives subject to a direct agreement(Including any sale,warranty or and-user license agreement)between Merchant and a third party. 2.21 )recourse.Merchant acknowledges that ISO performs the services contemplated by this Agreement and ISO is responsible to Merchant for any failure to perform such services in accordance with the terms of this Agreement.While Bank satisfies settlement files pursuant to instructions provided by ISO,Bank is not responsible for independently verifying the accuracy of such settlement files.Accordingly,to the greatest extent permitted by the Network Rules,Merchant's sole recourse for any failure by Provider under this Agreement is against iSO(and not Bank). 2.22 Pre-Authorized Transactions.If Merchant agrees to accept a pre-authorized order,the Cardholder shall execute and deliver to Merchant a written request for such pre-authorization which will be retained by Merchant and made available upon request to Provider.Merchant will not deliver goods or perform services covered by a pre-authorization after receiving specific notification that the pre-authorization is cancelled or that the card covering the pre-authorization is not to be honored. 2.23 JYoAntharizatiow Health Care Transactions.if Merchant is a"Health Care Merchant"as indicated on the Merchant Application and accepts a pm-authorized health care Transactions)from a Cardholder,Merchant agrees to comply with any requirements in the Network Rules related to such Transactions. 2.24 Recurring Transactions.If Merchant agrees to accept a recurring transaction from a Cardholder for the purchase of goods or services which are delivered or performed periodically(a "Recurring Transaction"),the Cardholder shall complete and deliver to Merchant an order form containing a written request for such goods or services to be charged to the Cardholder's account,the frequency of the recurring charges and the duration of time for which such Cardholder's permission is granted.In the event a Recurring Transaction is renewed,the Cardholder shall complete and deliver to Merchant a subsequent order form for continuation of such goods or services to be charged to the Cardholders account.A Recurring Transaction may not include partial payments made to Merchant for goods or services purchased in a single Transaction,nor may it be used for periodic payments of goods or services on which Merchant assesses additional finance charges A copy of the order form must be retained for the duration of the recurring charges and provided in response to Provider's request.In addition,Merchant trust record,retain,and promptly produce upon request the"ship to address"end address verification service code(where applicable)for each transaction.Merchant must not complete an initial or subsequent Recurring Transaction after receiving a cancellation notice from the Cardholder,the Card Issuer,Provider or other party or a response that the Card is not to be honored. 225 Limped Aceentanee. (a)If appropriately indicated on the Merchant Application,Merchant shall be a limited acceptance merchant,which means that Merchant has elected to accept only certain Visa and MasterCard Card types as indicated an the Merchant Application,or via later notification.The Visa or MasterCard credit acceptance option on the Merchant Application refers to Visa credit and business transactions,and is what MasterCard refers to as"Other Card"transactions Notwithstanding anything to the contrary in the Merchant Application, Merchant can Nett(i)to accept only Visa or MasterCard non-PIN based debit/stored value/electronic benefit transactions(sometimes referred to as"signature debit"transactions, whether or not an actual signature is required),(ii)to accept only Visa or MasterCard Credit transactions,or(iii)to accept all Visa or MasterCard credit and signature debit transactions;provided,however,that a Merchant who accepts any Visa or MasterCard Card types must accept all valid Visa or MasterCard Card types issued by a non-U.S. issuer.Merchant is not required to accept Cards of Card Networks other than Visa or MasterCard in order to accept Visa or MasterCard Cards(except that transactions using Diner's International Cards which also carry the MasterCard Mark must be accepted if Merchant accepts MasterCard Card transactions of the same type).Provider has no obligation other than those expressly provided under the Network Rules and applicable Law as they may relate to limited acceptance Provider's obligations do not include policing card types at the point-of-sale.Merchant will be solely responsible for the implementation of its decision for limited acceptance including but not limited to policing the Card Network type(s)of transactions at the point•of--sale submined for processing by Provider Should Merchant submit a Transaction for processing for a card type it has indicated it does not wish to accept,Provider may process that Transaction and Merchant will pay the applicable fees,charges,and assessments associated with that Transaction.Merchant will comply with any applicable Laws and Network Rules and other applicable rules and regulations for the Card Network type processed. (b)If Merchant has chosen to accept Discover Cards in the Merchant Application,Merchant must accept Discover Cards at all Merchant establishments,including in payment for purchases of goods and services,for charitable contributions and for Cash Over Transactions(subject to the terms of the Network Rules and other applicable rules and regulations),when properly presented for payment by a Cardholder.Subject to this section,Merchant must create a Transaction Record for each Discover Card Transaction and deliver at least one copy of the Transaction Record to the Cardholder.A Merchant may issue a Cash Over(subject to the terms of the Network Rules)in connection with a Discover Card Transaction.Merchant must deliver a single Authorization request for the aggregate total of the goods/services purchase amount and the Cash Over amount In addition,the Transaction Record must include both the purchase amount and the Cash Over amount ARTICLE III-PRESENTMENT,PAYMENT,CIIARGEBACK 3A1 Acceptance,Bank will accept from Merchant all Sales Drafts deposited by Merchant under the terms of this Agreement and will present the same to the appropriate Card Issuers for collection against Cardholder accounts Merchant is required to transmit Sales Drafts and Credit Vouchers to Bank or its processing vendor on the same of neat business immediately following the day that such Sales Drafts and Credit Vouchers have been originated.All presentment and assignment of Sales Drafts,collection therefore and re-assignment or rejection of such Sales Drafts are subject to the terms of this Agreement and regulations of the Card Associations.Bank will only provisionally credit the value of collected Sales Drafts to Merchant's Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks(actual and anticipated),fees,penalties,late submission charges,Reserve deposits,negative Sales Draft batch deposits and hems for which Bank did not receive final payment 3.02 Endorsement The presentment of Sales Drafts to Bank for collection and payment is Merchant's agreement to sell and assign all its right title and interest in each Sales Draft completed in conformity with Bank's acceptance procedures and shall constitute an endorsement by Merchant to Bank of such Sales Drafts Merchant hereby authorizes Bank to supply arch endorsement on Merchant's behalf. 3.03 ?rohibited Pavments,Bank will have the sole right to receive payment of any Sales Draft presented by Merchant and paid by Bank unless and until there is a Chargeback.Unless specifically unauthorized in writing by Bank,Merchant will not make or attempt to make arty collations on any Sales Draft,including Chargebacks,and will hold in trust for Bank and will promptly deliver in kind to Bank any payment Merchant receives,in whole or in part,of the amount of any accepted Transaction,together with the Cardholder's name and account number and any correspondence accompanying the payman. 3.04 pl urrebacks,Merchant will accept for chargeback any sale for which the Cardholder disputes the validity of the sale according to prevailing Card Association regulations,or a Card issuer or Bank or ETS CORPORATION determines that Merchant has in any way failed to comply with Card Association regulations or Bank's or ETS CORPORATION'S procedures in accepting a Card and presenting the resulting Sales Draft to Bank for purchase.Section 2.03 notwithstanding,Bank may charge back the amount of a Card sale for which the Cardholder disputes that authorizing the charge if Merchant failed to stain the Card Imprint or the Cardholder's signature.Merchant may not initiate*sale Transaction in an attempt to collect a Chargeback. Merchant will pay the current published fees for each Chargeback as listed on Schedule A. 3.05 Chnrecbnck Reserve Account,Notwithstanding anything to the contrary in this Agreement,Bank or ETS CORPORATION may establish(without notice to Merchant)and Merchant agrees to fund a non-interest bearing chargeback reserve account(the"Reserve Account"),or demand other security or raise any discount,transaction or other fees This account maybe established at any time or for any reason.Specific examples might include•.(a)Merchant engages in any charge processing that creates an overcharge to a Cardholder by duplicating charger,(b)any activity designed by Merchant to circumvent a"all center"message when attempting to process a transaction;(e)Merchant breaches this Agreanent,violates any representation,covenant or warranty herein,violates any applicable Card Association rule or applicable law;(d)Merchant';application is in any way inaccurate or becomes inaccurate subsequent to Bank's approval of the application;(e)Merchant changes its type of business without Bank's prior written approval;(f)fraud,Merchant processes an unauthorized charge, or other action that violates Bank's or ETS CORPORATION's applicable risk management standards or is likely to cause a loss;(g)Merchant has chargebacks exceeding I%of tkr total number of transactions completed by Merchant In arty 30 calendar day period;(h)excessive numbers of requesms from consumers or issuing banks to retrieve documentation;()Merchant's financial stability is in question or Merchant ceases doing business,or(I)Merchant terminates this Agreement.Once the Reserve Account is established,collected funds will be placed in the Reserve Account.Before releasing funds alter this Agreement is terminated,Merchant will pay any equipment cancellation fees and any outstanding charges,losses or amounts,and CThargebacks for which Merchant has provided indemnification under this Agreement.Further,Bank or ETS CORPORATION may require Merchant to deposit additional amounts based • upon Merchant's processing history and/or anticipated risk of loss to Bank or ETS CORPORATION into the Reserve Account.Once established,unless Bank or ETS CORPORATION determines otherwise at its sole discretion,the ReserveAcccunt will mein in place for 180 days and a reasonable period thereafter dining which Cardholder disputes may remain valid under applicable Card Association rules.The provisions of this Agreement relating to account debits and credits apply to the Reserve Account and survive this Agreement's termination until Bank terminates the Reserve Account.Arty balance retaining after chargeback rights have expired and all of Bank's or ETS CORPORATION's other expenses,losses and damages have been paid will be disbursed to Merchant ARTICLE IV-TERMINATION AND EFFECT OF TERMINATION 4.01 Term This Agreement will be effective once Bank and ETS Corporation accepts it and will continue until party has provided written notice of cancellation/termination given no less than thirty(30)days prior to termination of services. 4.02 Terminatign, (a)Without Cause Bank or ETS CORPORATION may terminate this Agreement,without cause,upon 30 days advance written notice to Merchant (b)Fn Cause Bank or ETS CORPORATION may terminate this Agreement in its sole discretion,effective immediatdy,upon written or verbal dotiee,or by dosing Merchant's mint-of-sale terminal,if Bank or ETS CORPORATION reasonably determines that any orate following conditions exists:(i)Merchant has violated any provision of this Agreement;(ii)there is a material adverse change in Merchant's financial condition;(iii)if any case or proceeding is commenced by or against Merchant under any federal or state law dealing with insolvency, bankruptcy,receivership or other debt relief;(iv)any information which Merchant provided to Bank or ETS CORPORATION,including Application information,was false,incomplete or misleading when received;(v)at any time during the tens of this Agreement.Merchant has had a monthly ratio of Chargebacks to total transactions exceeding Card Association requirements or I%,or Chargebacks exceed 3%of any monthly dollar amount of total transactions;(vi)an overdraft in the settlement account exists for more than three days;(vii)Merchant or any of Merchant's officers or employees has been involved in processing transactions arising from fraudulent or otherwise unauthorized transactions;(via)Merchant is or will be unable or unwilling to perform its obligations tinder this Agreement or applicable law;(ix)Merchant has failed to timely pay Bank or ETS CORPORATION any amount due;(x)Merchant has failed to promptly perform or discharge any obligation under its settlement account or the Reserve Account;(xi)any of Merchant's representations or warranties made in connection with this Agreement was not true or accurate when given;(al)Merchant has defaulted on any agreement it has with the Bank or ETS CORPORATION;(xiii)Bank or EIS CORPORATION is served with legal process seeking to attach or garnish any of Merchant's funds or property in Bank's or ETS CORPORATION',possession,and Merchant does not satisfy or appeal the legal process within 15 days of such service;(xiv)any Card Association odes are amended in any way so that the continued existence of this Agreement would cause Bank or ETS CORPORATION to be in breach of those roles;(xv)any guaranty supporting Merchant's obligations Is revoked.withdrawn,terminated or altered in any way;(xvi)if arty circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Association;(xvii)termination is necessary to prevent loss to Bank or ETS CORPORATION or Card Issuers;(xviii)Merchant's type of business indicated on the Application or as conducted by Merchant could endanger the Bank's or ETS CORPORATION':safety or soundness; (xix)Merchant's owner,officer,guarantor,or corporate entity has a separate relationship with the Bank or ETS CORPORATION and that relationship is terminated,(xx)Merchant appears on any Card Association's security reporting;or(pod)Bank's or ETS CORPORATION's security for repayment becomes impaired. 4.03 f,Rect of Bankruptcy,Any account or security held by Bank or ETS CORPORATION will not be subject to any preference,claim or stay by reason of bankruptcy or similar law.The parties expressly agree that the acquisition of Card Transactions hereunder is a financial accommodation and if Merchant becomes a debtor in any bankruptcy or similar proceeding,this Agreement may not be assumed or enforced by any other person and Bank or EiS CORPORATION will be excused from performance hereunder. 4.04 Effect of Termination.When termination becomes effective,the parties'rights and obligations existing under this Agreement survive.If this Agreement is terminated,regardless of cause,Bank or EIS CORPORATION may withhold and discontinue the disbursement for all Cards and other Merchant Transactions in the process of being collected and deposited.If Merchant is terminated for cause,Merchant acknowledges that Bank or EIS CORPORATION may be required to report Merchant's business name and the names and other identification of its principals to the MATCH file maintained by Visa.Discover,and MasterCard.Merchant expressly agrees and consents to such reporting if Merchant is terminated for any reason requiring listing on the MATCH file.Merchant waives and will hold harmless Bank or ETS CORPORATION from any claims that Merchant may raise as a result of Bank's or ETS CORPORATION's MATCH file reporting.Merchant will also immediately cease requesting Authorizations.If Merchant obtains anyAmhotization after termination,the fact that any Authorization was requested or obtained will net reinstate d i:Agreement.Further,Merchant will return all Bank or EIS CORPORATION property,forms,or equipment All obligations for Transactions prior to termination(including payment for Chargebacks and Bank's or EIS CORPORATION's expenses relating to Chargebacks)survive termination.Bank or ETS CORPORATION is not liable to Merchant for damages(including prospective sales or profits)due to termination.Following termination,Merchant will upon request provide Bank or EIS CORPORATION with all original and electronic copies of Sales Drafts and Credit Vouchers that have been retained by Merchant as of the date of termination.Upon termination,any amounts due to Bank or EIS CORPORATION will accelerate and be immediately due and payable,without any notice,declaration or other act whatsoever by Bank or EIS CORPORATION.The parties agree that if this Agreement is terminated before completion of the initial term of this Agreement for any reason other than a material uncured breach by Bank or ETS CORPORATION,Merchant mil pay Bank or ETS CORPORATION damages determined by(a)computing the number of months remaining from the date of termination to the end of the dun current term,and(b)multiplying that number by the average monthly processing fees and adding Bank's or E15 CORPORATION's costs and attorneys'fees.Merchant agrees that these damages are not a penalty but we a reasonable computation of the financial harm caused by the termination of this Agreement.Bank's or ETS CORPORATION',rights of termination are non-cumulative. ARTICLE V-MISCELLANEOUS 5.01 Account Monitoring,Merchant acknowledges that EIS CORPORATION and/or Bank will monitor Merchant's daily deposit activity.Merchant agrees that Bank may upon reasonable grounds suspend the disbursement of Merchants funds for any reasonable period of time required to investigate auspicious or unusual deposit activity. EIS CORPORATION and/or Bank will make good faith efforts to notify Merchant promptly.EIS CORPORATION and/or Bank will not be liability for any losses,either direct or indirect,which Merchant may attribute many suspension offunds disbursement 5.02 forms,Merchant will use only such forms or modes of transmission of Sale:Drafts and Credit Vouchers as are provided or approved in advance by Bank or EIS CORPORATION,and Merchant wig not me such forms other than In connection with Card Transactions. 5.03 Indemnification,Merchant will defend,indemnify and hold Bank and ETS CORPORATION and its officers,directors,members.shareholders,partners,employees,agents,subcontractors and representatives harmless from and against any and all fines,penalties,claims,damages,expenses,liabilities or fees of any nature whatsoever,including attorneys'fees and costs ("Damages-),asserted against or incurred by Bank and EIS CORPORATION arising out of,relating to or resulting from,either directly or indirectly:(a)a breach of the security of the system safeguarding Cardholder lnfonnation resulting in unauthorised access to Cardholder Information;(b)a breach of any representation,warranty or term of this Agreement,inducing but not limited to,the data security provisions by Merchant,or any service provider,subcontractor or agent of Merchant;(c)the negligence,gross negligence or willful misconduct of Merchant in the performance of its obligations under this Agreement,including but not limited to,the data security provisions;(d)any violation hf applicable federal and state laws,odes, regulations and guidance and Card Association roles by Merchant;and(e)all third party claims arising from the foregoing.Notwithstanding the preceding,Merchant is not Gable to Bark or ETS CORPORATION if Damages are caused by,related to or arise out of Bank's or ETS CORPORATION's negligence,gross negligence or willful misconduct,or Bank's or ETS CORPORATION's breach of this Agreement.Merchant will promptly reimburse Bank or EIS CORPORATION for any assessments,fines,fees or penalties imposed by the Card Association in connection with this Agreement,including the data security provisions,and authorizes Bank or ETS CORPORATION to deduct any such sums from amounts to be cleared and settled with Merchant 5.04 Records.In addition to any records merchants routinely furnished to Bank or ETS CORPORATION pursuant to this Agreement,Merchant will preserve a copy of the actual paper Sales Drafts and Credit Vouchers and any written authorization of the Cardholder for at least two(2)years after the date Merchant presents the Transaction to Bank. 5.05 Rearrests for Conies,immediasely upon receipt of any request by Bank or EIS CORPORATION,Merchant will provide either the actual paper Sales Draft or a legible copy thereof(in size comparable to the actual Sales Draft)and any other documentary evidence available to Merchant and reasonably requested by Bank or EIS CORPORATION to meet Bank's and ETS CORPORATION'S obligations under law(including hs obligations under the Fair Credit Billing Act)or otherwise to respond to questions concerning Cardholder accounts 5.06 Compliance with law,Merchant will comply with all laws applicable to Merchant,Merchants business and any Card Transaction,including without limitation all sate and federal consumer credit and consumer protection statutes and regulations. 5.07 fees and Charnel,Merchant will pay to Bank or EIS CORPORATION the fees and charges set forth on Schedule A inducing any additional charges applied to transactions that fail to meet Card Association requirements for the lowest interchange levels.Merchant's Account will be debited through ACH or wirhhdd from daily payments to Merchant for such amounts and for any other fees,charges or adjustments incurred by Mercham and associated with processing services.Bank or ETS CORPORATION may change fees,including adding fees for additional services utilised by Merchant,upon 30 days written notice to Merchant 5.05 Security Interest.To secure payment of Merchant's obligations under this Agreement,Merchant grants to Bank and ETS CORPORATION a security interest in all now misting or hereafter acquired:(a)Transactions,Sales Drafts,Credit Vouchers and other items submitted to Bank and ETS CORPORATION for processing by or for Merchant;(b)accounts receivable and payment rights relating to or arising from this Agreement,including all amounts due Merchant(including any rights to receive credits or payments hereunder),(c)accounts(including without limitation all deposit accounts)maintained with the Bank or ETS CORPORATION or any institution other than Bank or ETS CORPORATION,including the Reserve Account. in the name of or far the benefit of.Merchant or any guarantor of Merchant's obligations under this Agreement;(d)deposits,regardless of source.to Merchant's or any guarantor's accounts with Bank or ETS CORPORATION or any institution other than Bank or ETS CORPORATION,including the Reserve Account;(e)all deposits and all other property and funds deposited by Merchant or withheld by Bank or ETS CORPORATION,including funds and property withheld as the result of security monitoring;and(f)proceeds of the foregoing.If Bank or ETS CORPORATION reasonably determines that Merchant has breached any obligation under this Agreement,or that proceeds of Merchants future card sales are unlikely to cover anticipated Chargebacks,credits,fees and adjustments,as reasonably determined by Bank or ETS CORPORATION(whether because this Agreement has been terminated or for any other reason).Bank or ETS CORPORATION may setoff or otherwise exercise its security interest without notice or demand by inunediatdy withdrawing from or freezing any account or otherwise exercising its rights under this Agreement or those rights available under applicable laws,including the Utah Uniform Cranmercial Code,or in equity.In addition to the collateral pledged above,Bank or ETS CORPORATION may require Merchant to furnish such other and different security as Bank or ETS CORPORATION deems appropriate in its sole discretion to secure Merchant's obligations under this Agreement.Bank or ETS CORPORATION may fully or partially prohibit withdrawal by Merchant of funds from Merdunt's deposit accounts maintained with Bank or ETS CORPORATION or financial institutions other than Bank or ETS CORPORATION,pending Bank's or EIS CORPORATION'S determination from time to time to exercise its rights as a secured party against such accounts in partial or full payment of Merchant's obligations to Bank or ETS CORPORATION.Merchant will exegete any documents and take any actions required to comply with and perfect any security interest under this paragraph,at Merchant's cost.Merchant represents and warrants that no other party has a security interest or lien in any of the collateral pledged above,and Merchant will obtain Bank's or EIS CORPORATION's written consent before it grants a lien or security interest in that pledged collateral to any other person.Merchant shall not assign to any third ply any payments due to it under this Agreement,and all indebtedness arising from Transactions will be for bona fide sales of goods and services(or both)at its business locations and free of liens,claims,and encumbrances other than ordinary sales taxes;provided,however,that Merchant may sell and assign future Transaction receivables to Provider,its affiliated entities and/or any other cash advance funding source that partners with Provider or its affiliated entities,without consent from any Card Network.Notwithstanding the fording.Provider prohibits Merchant from selling or assigning future Transaction receivables to any third party without Provider's prior written consent. 5.09 Modifications to Agreement,This Agreement is subject to amendment to conform with Card Association regulations.as amended from time to time.From time to time Bank and ETS CORPORATION may amend any provision or provisions of this Agreement,including,without limitation,those relating to the discount rate or to other fees and charges payable by Merchant by mailing written notice to Merchant of the amendment at least thirty(30)days prior to the effective date of the amendments,and the amendment will become effective odess Bank or EIS CORPORATION receives Merchant's notice of rerodriation of this Agreement before such effective date.Amendments required due to changes in either Cud Association's rules and regulations or any law orjo 8ciai decision may become effective on such shorter period of time as Bank may specify if necessary to comply with the applicable rude,regulation, law or decision. 5.10 Warranty Disclaimer,ETS CORPORATION MAKES NO WARRANTIES REGARDING THE USE.OPERATION OR PERFORMANCE OR NON-PERFORMANCE OF SOFTWARE AND SYSTEMS UTILIZED FOR THIS AGREEMENT,WHETHER EXPRESS OR IMPLIED,AND ETS CORPORATION EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FORA PARTICULAR PURPOSE 5.t1 Umkalton of Liahlity.Bank's and EIS CORPORATION'S liability with respect to any Card Transaction may not exceed the amount of the Sales Draft in connection with that Transaction less any applicable fees and charges.Bank and ETS CORPORATION is not liable for any incidental or consequential damages whatsoever.Merchant waives all claims against Bank and ETS CORPORATION for any loss,claim,demand,penalty,action,delay,cost or expense(including reasonable attorneys'fees)of any kind unless Merchant provides written notice to ETS CORPORATION or Bank of the occurrence that gave rise to the alleged liability within 30 days after Merchant knew or should have known tithe occurrence.Merchant will indemnify and hold Bank and ETS CORPORATION harmless from any claim relating to any Sales Draft paid for by Bank as may be made by anyone by way of defense,dispute,offset,counterclaim or al irmalive action,or for any damages of or losses that Bank or EIS CORPORATION may incur as a result of Merchant's breach of this Agreement.Further,Merchant will reimburse Bank or ETS CORPORATION for all expenses and costs,including attorneys'fees,with regard thereto. 5.t2 Waiver,Failure by Bank or ETS CORPORATION to enforce one or more of the provisions of this Agreement will not constitute a waiver of the right to enforce the same or other provision in the future. 5.13 Written Notices All written notices and other written communications required or permitted under this Agreement will be deemed delivered immediately when hand-delivered or sent via facsimile and the sender obtains a fax confirmation receipt,and upon mailing when sent first class mail,postage prepaid,addressed as follows: (a)ETS CORPORATION,20135 Lakeview Center Plaza,4th Floor Ashburn,VA 20147 (b)Bank:Hence Bank Corporation,10705 South Jordan Gateway,Suite 200,South Jordan,UT 84095,Attn:SVP of Merchant Services,Facsimile:(516)576-8741; (c)If to Merchant At the facsimile number or address provided as the billing address and to the contact listed on the Merchant Application. 5.14 Choice of Law:Jurisdiction,Any claim or cause of action arising out of or relating to this Agreement,whether now in existence or arising in the future,against Merrick Bank must be initiated and maintained exclusively in the state or federal courts located in Salt Lake County.Utah,and shall be governed by Utah law without regard to its conflict-of-law odes.Merchant hereby submits to the exclusive jurisdiction ofthose courts for purposes of any such proceeding and acknowledges that it wilt be subject to the applicable procedural rules ofthose carts Any claim or cause of action arising out eta relating to this Agreement,whether now in existence or arising in the future,against ETS CORPORATION must be initiated and maintained exdusively in the state courts located in Loudoun County,Virginia,and shall be governed by Virginia law without regard to its conflict-of-law rules.Merchant hereby submits to the exclusivejudsdicton of those courts for purposes of any such proceeding and acknowledges that it will be subject to the applicable procedural rules ofthose courts.Merchant acknowledges that the state coots of Virginia do not provide a data action mechanism.By accepting this agreement and agreeing to litigate all disputes with EIS CORPORATION is the state courts located in Leudoun County,Virginia,Merchant expressly acknowledges that it foregoes the ability to bring a class action against ETS CORPORATION or to participate as a member of a class in an action against ETS CORPORATION heretofore accrued or accruing iti'gte future. 5.15 'Mire Agreement:AssirnahIity,This Agreement expresses the entire understanding ofthe parties with respect to the subject matter hereof and except as provided herein,may be modified only is writing executed by Bank and ETS CORPORATION and Merchant.This Agreement may not be assigned,directly or by operation dim without Bank's and ETS CORPORATION'a prior written consent This Agreement will be binding upon and inure to the benefit of the parties'respective heirs,personal representatives,successors and assigns. 5.16 Denosil Account,Merchant will at all times maintain an Account at a bank that is a member ofthe Federal Reserve ACH system and will provide Bank and EiS CORPORATION with proper authorization to debit the Account.All credits for collected funds and debits for fees,payments and Cbargebacks and other amounts for which Merchant is liable under the tams of this Agreement will be made to the Account.Merchant may not dose or change the Account without written notice to Bank and ETS CORPORATION.Merchant will be solely liable for all fees and costs associated with the Account and for all overdrafts.Merchant hereby grunts to Bank and ETS CORPORATION a security interest in the Account to the extent ofany and all fees,payments and Chargebacks and other amounts due which may arise under this Agreement,and Merchant will execute any document and obtain any consents or waivers from the bank at which the Account is maintained as requested by Bank and ETS CORPORATION to protect its Security interests therein. • 5.17 Credit mid Financial Inouiries:Additional Locations:Insneelians,Bank or ETS CORPORATION may make,at any rinse,any credit inquires which it may consider necessary to accept or review acceptance of this Agreement or investigate Merchant's deposit or Card acceptance activities subsequent to acceptance of this Agreement.Such inquiries may include,but are not limited to,a credit and/or criminal check of the business including its proprietor,partners,principal owners or shareholders or officers.Upon Bank's or and EIS CORPORATION's request,Merchant will provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Bank or ETS CORPORATION may consider necessary to perform initial or perio is reviews of Merchant's financial stability and business practices.Merchant may accept Cards only at locations approved by Bank or ETS CORPORATION.Additional locations may be added.subject to Banks or ETS CORPORATION's approval.Any party to this Agreement may delete any location by providing notice as provided herein.Merchant will permit Bank or ETS CORPORATION,at any time and from time to time,to inspect locations to corm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities,equipment,inventory,records and license or permit(where necessary)to conduct its business.However,nothing in this paragraph may be deemed to waive Merchant's obligation to comply in all respects with the terms of this Agreement.Bank or ETS CORPORATION,its internal and menial auditors,and its regulators may audit compliance with this Agreement,compliance with federal and state laws, rules,regulations and guidance applicable to the services,Card acceptance and Transaction processing,and data security provisions,including Card Association compliance.Merchant al make available its records maintained and produced under this Agreement,and Merchant's facilities will be made accessible,upon notice during normal business hours for examination and audit.Nothing in this section maybe construed to require Merchant to give access to its facilities,personnel or records in a manner that unreasonably interferes with its business operations. Each party will bear its expenses of any audit. 5.1g Marketing of Non-Bankeard Services.From time to dime,Bank may offer to Merchant certain additional products and services which mayor may no be related to the processing of credit card Transactions.If such offers are made,Merchant may decline the offers or be deemed to have accepted the offers and be liable for payment therefore. 5.19 Force Maieure.The parties will be released from liability hereunder if they fail to perform any obligation where the failure occurs by reason of any act of God,fire,flood,storm,earthquake,tidal wave,communications failure,sabotage,war,military operation,terrorism,national emergency,mechanical or electronic breakdown,civil commotion or the order,requisition,request or recommendation of any governmental authority,or either party's compliance therewith,or governmental regulation,or priority,or any other similar cause beyond either patty's ressonable control. 5.20 Po Third Porto Benefrclarr,No other person or entity may be deemed to be a third party beneficiary of this Agreement. 5.21 Severabflitvr Conflict with Network Rules.If any provision in this Agreement is for any reason held to be invalid or unenforceable,no other provision shall be effected thereby,and this Agreement shall be construed as if the invalid or unenforceable provision had never been a part of it. In the event of a conflict between this Agreement and the Network Rules,the Network Rules shall govern and control. 5.22 JRS Renortine Information.Pursuant to Section 6050W of the Internal Revenue Code,merchant acquiring entities such as Bank and third-party settlement organizations are required to file as information retort reflecting all payment card transactions and third-party network transactions occurring in a calendar year.This requirement applies to returns for all calendar years after December 31,2010 and Merchant will receive a form 1099-K reporting Merchant's gross transaction amounts for each calendar year.In addition,amounts payable under Section 6050W are subject to backup withholding requirements Merchant acquirers such as Bank either itself or through third parties,are required to perform backup withholding by deducting and withholding income tax from reportable transactions if(a)the payee fails to provide the payee's taxpayer identification nrmrber(TIN)to the merchant acquirer,or(b)if the IRS notifies the merchant acquirer that the TIN(when matched with the name)provided by the payee is incorrect Accordingly,to avoid backup withholding,it is very important that Merchant provides Bank with the correct name and TIN that Merchant uses when filing its income tax return that includes the transactions for Merchant's business.In addition to the fees set forth on the Merchant Application,if Merchant fails to comply with the obligations set forth in this section,Provider may charge Merchant additional amounts determined by Provider and may pass through any additional fines,costs or expenses incurred by Provider. 5.23 Confidentiality.Merchant shall protect all information or other items proprietary to Provider that Merchant obtains knowledge of or access to as a result of Provider's provision of the services pursuant to this Agreement(collectively,"Provider Confidential Information")firm waahorized disclosure,publication,or dissemination with the same standard of care and draetiom Merchant uses to protect similar confidential information of Merchant's own,but in no event less than reasonable are.Furthermore,Merchant shall not use,reproduce,distribute,disclose, or otherwise disseminate Provider Confidential Information,except in connection with the performance of Merchant's obligations under this Agreement.The Provider Confidential Information described in the previous sentence,shall include,but not be limited to,the following types of information and other information of a similar nature(whether or not reduced to writingk scientific,tedurial,or business information,product makeup lists,ideas,concepts,designs,drawings,techniques,plans,calculations,system designs,formulae,algorithms, programs,software(source and object code),hardware,manuals,test procedures and results,Identity and description of computerized records,identity and description of suppliers,customer lists,processes,procedures trade secrets,"know-how,"marketing techniques and material,marketing and development plans,price lists,pricing policies,and all other financial information The obligations of non-disclosure provided hereunder shall continue during the Tenn and,(i)with respect to Provider Confidential Information that does not constitute a trade secret,for a period of three(3)years thereafter and,(ii)with respect to Provider Confidential Information that rises to the level of a trade secret under applicable Law,for such period of time thereafter as the Provider Confidential Information shall retain its status as a trade secret under applicable law,and no less than three(3)years thereafter. Terms Below Are Additional Terms Applicable Specifically to American Express Card Acceptance(capitalized terms below not defined elsewhere in the Agreement shall have the meanings assigned in the American Express Network Rules).With respect to participation in an American Express acceVtance program,in the event of a conflict between the terms below and other terms of this Agreement,the terms below shall control with respect to American Express transactions only.Merchant shall be bound by American Express Network Rules,including the Merchant Operating Guide:www.nmericanexpress.com/merchantopguide. A5.2.1 Transaction Data Merchant authorizes Provider and/or its affiliates to submit American Express Transactions to, and receive settlement on such Transactions from, American Express or Bask on behalf otMerchant. A515 )ilarketine Mestere Ont-Out Merchant may opt-out of receiving future commercial marketing communications from American Express by contacting Provider.Note that Merchant may continue to receive marketing communications while American Express updates its records to reflect this choice.Opting out of commercial marketing communications will not preclude Merchant from receiving important transactional or relationship messages from American Express. A5.26 Conversion to American Express Direct Merchant,.Merchant acknowledges that it may be converted from American Express Card OptBlue program to a direct relationship with American Express if and when its Transaction volumes exceed the eligibility thresholds for the OptBlue program.If this occurs,upon such conversion,(i)Merchant will be bound by American Express'then-current Card Acceptance Agreement;and(ii)American Express will set pricing and other fees payable by Merchant AS.27 American Express as Third Party Beneficiary.Notwithstanding anything in the Agreement to the contrary,American Express shall have third-party beneficiary rights,but not obligations,to the terms of this Agreement applicable to American Express Card acceptance to enforce such terms against Merchant. AS13 American Express Opt-Out. Merchant may opt out of accepting American Express at any time without directly or indirectly affecting its rights to accept Cards bearing Marks of other Card Networks. A5.29 Behind Policies Merchant's refund policies for American Express purchases must be at least as favorable es its refund policy for purchase on any other Card Network and the refund policy must be disclosed to Cardholders at the time of purchase and in compliance with Law. Merchant may not bill or attempt to collect from any Cardholder for any American Express Transaction unless a Chargeback has been exercised,Merchant has fully paid for such Chargeback,and it otherwise has the right to do so. A5.30 j:atablishment Closing. If Merchant closes any of its Establishments, Merchant must follow these guidelines: (i) notify ISO Immediately; (ii) policies must be conveyed to the Cardholder prior to completion of the Transaction and printed on the copy of a receipt or Transaction record the Cardholder signs, (iii) if not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the Transaction record and on websites and catalogs); (iv)return and cancellation policies must be clearly disclosed at the time of sale; and (v) for Advance Payment Charges or Delayed Delivery Charges, Merchant must either deliver the goods or services for which Merchant has already charged the Cardholder or issue Credit for any portion of the Transaction for which Merchant has not delivered the goods or services.