Sub-Merchant Services Terms & Conditions
Community Investors, Inc., d/b/a FRONTSTEPS (“FRONTSTEPS”), a Delaware corporation with its principal office located at 1290 Broadway, Suite 1250, Denver, Colorado 80203 through a third-party payment service provider (“ProviderPartner,” together with FRONTSTEPS, “we,” “us,” or “our”)provides certain services that facilitate a sub-merchant’s acceptance of credit and debit card payments and ACH services for services provided to Cardholders(as defined herein) and homeowners (collectively, the “Services”).
Upon clicking to accept these Sub-Merchant Services Terms and Conditions(these “Terms and Conditions”) or otherwise using any Services, you (“you,”or “your”) agree to be bound to these Terms and Conditions and represent that you have authority to bind the organization (if any) for which you are clicking to accept.
1. THE SERVICES
1.1 SERVICES PROVIDED
Subject to these Terms andConditions, we hereby grant you use of the Services. The Services allow you to accept payment from your association members and occupants (“Customers”) via bankcards (“Card”or “Cards”) validly issued by Visa, MasterCard, Discover, and AmericanExpress (the “Card Brands”) and also, if approved, via Automated ClearingHouse (“ACH”) transactions. The Services may also include ancillary payment processing support services, which may be offered through third parties, such as card account updater, the Data Security Standards adopted by the PCISecurity Standards Council, LLC (“PCI DSS”) compliance support services, fraud and risk reduction services, card wallets, tokenization services, and other support services to support the payment acceptance related services we provide to you. Any new Card type or Service approved by us is subject to these Terms and Conditions.
1.2 FEES FOR SERVICES
Fees for the Services are set out in the statement of work that we provide to you.
1.3 RESTRICTION AND TERMINATION OF SERVICES
You acknowledge that all Services contemplated in these Terms and Conditions may not be available to you due to restrictions by the Card Brands or any payment processors utilized in connection with the Services (the “Payment Processors”),risk or fraud risks, or other circumstances as solely determined by us.
We reserve the right to refuse to allow you to use the Services for any reason or to terminate yourServices. If you wish to stop receivingServices from us, you shall provide written notice to us as set forth in Section 15.9, and the Services provided to you will be terminated.
2. SERVICE PROVIDERS AND SUBCONTRACTORS
We work with various third-party organizations to provide the Services. We may engage third parties to perform part or all of our obligations under these Terms and Conditions, at any time, without your consent and at our discretion, provided, however, that such action shall not affect our obligations to you. You agree that we will utilize a Payment Processor to provide the Services and that we may use other third-party companies or banks to provide other kinds of Services to you. You hereby grant us and any other agents and entities supporting the Services access to any information about you that is necessary to enable them to provide the Services to you.
3. APPLICATION PROCESS AND DETERMINATIONS
3.1 APPLICATION, UNDER WRITNG AND ONGOING BUSINESS VERIFICATION
The information gathered by us from you during the online registration process and as set forth in this Section 3 (collectively, the “Application”),and such other documents, policies, and procedures we require you to conform to, including any banking disclosure documentation, are all incorporated by reference. You will be given access to the Services after the information is reviewed and an underwriting decision to allow your account to accept payments has been made.
The Card Brands, Payment Processors, and various U.S. Federal Government agencies require us to verify your company information and ensure compliance with relevant rules and regulations. These verification checks include, among other requirements, determining creditworthiness and compliance with anti-money laundering and “know your customer” regulations. You authorize us, and as required, the PaymentProcessors, to obtain your credit reports, to perform identity verification and any other necessary inquiries (including, but not limited to, credit reports for your directors, officers, and principals), to review your financial statements and Customers, and to conduct transaction-verification inquiries and any other inquiries considered necessary relating to these Terms and Conditions. Further, you agree that we may provide any such information and documentation to any one or more of our sponsor bank(s) (the “SponsorBank”), Payment Processors, and other organizations as required by them. We rely on this information for underwriting and to meet our obligations under applicable federal, state, and local laws, rules, and regulations (collectively, “Laws”). If the scope or nature of your business or the type of products or services you offer changes, you must notify us prior to the change. You are liable to us for all losses and expenses incurred by us arising out of your failure to report changes to us. If we determine that there is insufficient information to underwrite your account or verify your identity, or we determine that your financial condition is unsatisfactory, we may refuse to open an account, or, once an account is established, we may decide to terminate the account as part of the Card Brands’ required monitoring process. We may request additional information or impose additional requirements to provide security to us, any Payment Processor, any acquirer providing Services, or the Sponsor Bank.
3.2 PROCESSING LIMITS
The Application will be used by us, the Payment Processor, and the Sponsor Bank to assign a maximum dollar amount per sales ticket and an aggregate maximum dollar amount of Card and ACH transactions per calendar month.
The Card Brands have established specific limits on the amount of processing that can be provided under these Terms and Conditions. These limits are currently $1,000,000 per calendar year but are subject to adjustment at the sole discretion of the CardBrands and Payment Processors. If your processing volume thresholds exceed the then-applicable processing limit, we may notify you that you must enter into an additional agreement with our Sponsor Bank or Payment Processor for us to continue providing Services to you.
4. COMPLIANCE WITH RULES AND LAWS
4.1 COMPLIANCE WITH CARD PAYMENT RULES
You must comply with the applicable Card Brand rules and operating regulations and theNational Automated Clearing House Association rules (“NACHA”)(collectively, the “Rules”). These rules are updated by the Card Brands periodically, and you must abide by all changes to the requirements. These Terms and Conditions reference some of the requirements, but you are responsible for ensuring compliance with all current requirements. The Rules area available as follows:
Visa: (search for “Visa Core Rules and Visa Product and Service Rules”) at: https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf. Visa has provided a simplified version of the acceptance requirements for cards that covers many, but not all, of their requirements at: https://usa.visa.com/dam/VCOM/global/support-legal/documents/card-acceptance-guidelines-visa-merchants.pdf A search for “CardAcceptance Guidelines for Visa Merchants” may locate the guide if the providedURL is no longer valid.
MasterCard: (search for “Mastercard Rules”) at: https://www.mastercard.us/content/dam/mccom/global/documents/mastercard-rules.pdf
American Express: (search for “American Express Merchant Operating Guide”) at:
https://icm.aexp-static.com/content/dam/gms/en_us/optblue/us-mog.pdf
You are responsible for compliance with all of the Card Brand Rules. The location of the Rules and related materials may change from time to time or become unavailable. If the provided links are not functional, you can search for the most recent versions of the requirements online.
4.2 COMPLIANCE WITH ACH PAYMENT RULES
If you accept ACH payments, you are responsible for compliance with the rules, guidelines, and regulations of the National Automated Clearing House Association (“NACHA”). TheNACHA Operating Rules and Guidelines are available online, and a “BasicSubscription” to these rules is available at no cost through an online registration process. Signup for an account and access to the NACHA guide is available at https://www.nachaoperatingrulesonline.org.
4.3 COMPLIANCE WITH PCI DSS REQUIREMENTS
You represent to us that you do not have access to Card information (such as the Cardholder’s account number, expiration date, and CVV or CVV2 values) and you will not request access to such Card information from us. If you receive such Card information in connection with the Services, you agree that you will not use it for any fraudulent purpose or in violation of any Laws, Rules, or the PCI DSS standards. Additionally, if you receive such Card information, you represent to us and agree that you will never retain such Card information on paper, form ,voicemail, or any other modes of retention. If at any time you believe thatCard information has been compromised, you must notify us promptly and assist in providing notification to the proper parties. Additionally, all costs of mitigation or notification associated with the compromise of Card information will be borne by you.To utilize the Services, you may be required to be PCI DSS compliant. If you are required to be PCI DSS complaint, you must (a) provide us with annual certification of your compliance with the then-current PCI DSS standards, which may be provided via an online PCI DSS reporting tool, a paper or PDF version of the appropriate Self-Assessment Questionnaire, or through another mutually agreed upon method and (b) ensure that you and any service providers that support your processing (besides those we have engaged to provide the Services) have proper security measures in place for the protection of Cardholder data and comply with the PCI DSS, which may be reflected in theVisa Cardholder Information Security Program, the MasterCard Site DataProtection Program, and Discover Network’s Information and Security Compliance, in addition to all other Rules now or in the future. Additionally, you agree to assist us in maintaining our own PCI DSS compliance, to the extent such PCI DSS compliance relates to you.
4.4 COMPLIANCE WITH LAWS AND POLICIES
You agree to comply with applicable Laws. You also agree to the terms of Provider Partner’s privacy policy, high risk/acceptable use policy, and other applicable policies available onProvider Partner’s website or by request to FRONTSTEPS (collectively, “Policies”),including, but not limited to: https://stripe.com/us/connect/account-terms. You will assist us if we are required to ascertain your compliance with any Rules, Laws, Policies, or the PCI DSS. We may, within our sole discretion, suspend the Services for a reasonable period of time to investigate suspicious or unusual activity, and we shall have no liability for any losses you may attribute to any suspension of funds disbursement. We may reverse Card transactions we deem to violate theseTerms and Conditions, Laws, Rules, Policies, or the PCI DSS, and you agree to reimburse us for any such reversal. If any terms of these Terms and Conditions conflict with the Rules, including the PCI DSS, the Rules will govern.
5. ACCEPTING PAYMENT
5.1 CARD ACCEPTANCE
You will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued (“Cardholder”). You may elect not to accept Visa or MasterCard-branded debit cards or both, but you must provide us with prior written notice of such election. Terms specific toAmerican Express cards are set forth in Section 6. You will properly disclose to the Cardholder, at the time of the Card transaction, your name, return policy, and, if applicable, other limitations you may have on accepting returned merchandise. Your refund polices for purchases made with a Card must be at least as favorable as your refund policy for purchases made with any other form of payment. Provider Partner’s name will appear in conjunction with your name on Cardholders’ statements. You will not accept any payments from aCardholder relating to previous charges for merchandise or services, and if you receive such payments, you will promptly remit them to us.
5.2 CARD AUTHORIZATION
No later than 72 hours from the time you initiate a transaction, but prior to completing it, you will request an authorization for the transaction using equipment that meets the specifications we require. This authorization request must include your name and account identifier, the Card expiration date, the zip-code of the Cardholder’s billing address, and the total amount of the transaction, including taxes. We may also require additional information in your request, such as: (a) CVV2 code or the equivalent; (b) a brief description of the goods or services involved;(c) the transaction authorization number; and, (d) if applicable, adjacent to the signature line, a notation that all sales are final. When authorization is obtained, you will be deemed to warrant the identity of the customer as theCardholder. Authorizations are not a guarantee of acceptance or payment of a transaction and do not waive any provision of these Terms and Conditions, or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card. For the avoidance of doubt, we may refuse to authorize any transaction.
5.3 SALES TRANSMITTALS
You will retain a copy of the sales transmittal for the completed transaction in accordance with theRules for 25 months or such longer period as the Rules may require. Within three business days of our request, you will produce copies of sales transmittals and other transaction evidence, otherwise we will have chargeback rights with respect to such transactions.
5.4 RECURRING TRANSACTIONS
You must obtain theCardholder’s prior written consent for recurring transactions, including a description of the services or other product and the frequency and duration of the recurring charge, and notify the Cardholder that recurring billing charges may be cancelled at any time. You must retain evidence of such written consent for 24 months from the date you submit the last recurring billing charge. You will honor any Cardholder cancellation, and if your access to the Services is terminated for any reason, you will, at your own cost, advise all Cardholders to whom you submit recurring billing charges that you no longer accept the Card(s)for amounts owed.
5.5 ACH PROCESSING
To enable you to make and accept ACH payments, you authorize us to originate credit or debit records for the purpose of a funds transfer (“Entries”) into the ACH network. We will use reasonable efforts to originate Entries on your behalf in accordance with these Terms and Conditions. You must only submit Entries for bona fide transactions with your Customers made in the ordinary course of business in accordance with these Terms and Conditions, the Rules, and Laws. You shall obtain and maintain appropriate authorizations in accordance with the Rules from each of your Customers for each ACH transaction.
5.6 PROHIBITED PRACTICES
You will not present for processing or credit, directly or indirectly, any transaction not originated asa 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 theCardholder. We will refer perpetrators of fraudulent transactions, in our discretion, to the appropriate law enforcement agency. You must not honor anyCard that is expired or listed on a current Electronic Warning Bulletin file, regardless of whether authorization has been obtained. You must not request an ACH transfer that violates the Rules or Laws. You agree not to initiate any ACH debits or credits to or from a savings account or a foreign bank or the branch of a foreign bank in a U.S. territory. The term “foreign bank” does not include a U.S. agency or branch of a foreign bank or an insured bank organized under the laws of a U.S. territory. You may not split transactions into multiple Card transactions except where: (a) partial payment is entered on the transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction; or (b) the amount represents an advance deposit in a Card transaction completed in accordance with these Terms and Conditions and the Rules. You will not use theServices to accept amounts representing the refinancing of an existing collectible obligation, debt, or dishonored check of a Cardholder. You may not process transactions for, receive payments on behalf of, or (unless required by Law) redirect payments to a third party. You must not use the Service for high risk transactions or illegal activities, as per the Policies.
6. AMERICAN EXPRESS
This Section 6 applies only if you acceptAmerican Express Cards. If there is a conflict between any of the following sections and any other section of these Terms and Conditions as it applies toAmerican Express Cards, this Section 6 governs.
6.1 CUSTOMER SERVICE INFORMATION
You must maintain customer service information that is readily available for review by American ExpressCardholders transacting with you. The customer service information should provide clear instructions on how to contact you, including an active customer service email address and telephone number.
6.2 THIRD-PARTY BENEFICIARY.
You understand and covenant that you are not a third-party beneficiary under Provider Partner’s agreement with American Express, including all schedules and exhibits, or the AmericanExpress Rules. You acknowledge and agree that American Express is a third-party beneficiary under these Terms and Conditions. This means American Express has the right, but not the obligation, to enforce the terms of these Terms andConditions against you.
6.3 AUTHORIZATIONS
You authorize us to submitAmerican Express Card transactions to, and receive payment from, AmericanExpress on your behalf. You authorize us to disclose Card transaction data and data about you to American Express, its affiliates, agents, subcontractors, and employees, and further authorize these entities to use such information to perform services, operate and promote the American Express network, perform analytics and create reports, and for any other lawful business purpose, including as described in the American Express Rules. You authorize AmericanExpress to use your name, address, and website address in any media.
6.4 AMERICAN EXPRESS ARBITRATION
Any dispute between you andAmerican Express shall be resolved on an individual (not class) basis by binding arbitration in accordance with the rules of the American ArbitrationAssociation or JAMS. You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. American Express will be responsible for any additional arbitration fees. American Express will not elect arbitration for any claim you properly file in a small claims’ court so long as such claim is pending only in that court.
7. DISPUTES
7.1 YOUR DUTY TO MONITOR
We will not, and have no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which funds are transferred. We assume no liability for any unauthorized transfer request and the attendant transfer of funds, unless and until we receive appropriate and timely notice by you of the unauthorized transfer requests. You must promptly and consistently inspect your transaction history. Immediately report any possible errors.
7.2 DISPUTES, INQUIRIES, AND CHARGEBACKS
We will handle Card Brand inquiries about your Card transactions, in addition to disputes between you and a customer involving Card payment transactions. Based on customer disputes, we may reverse Card transactions (“chargebacks”), and we will offset the value of such chargebacks from monies owed to you. You must not reenter or reprocess any Card transaction that has been charged back, but instead allow the chargeback process to proceed to its conclusion as described in each CardBrand’s Rules. If you disagree with a chargeback, you may request a charge back reversal within the applicable Card Brand’s timeline set forth in its Rules. “ExcessiveActivity” for purposes of these Terms and Conditions means any of the following: (a) chargebacks in excess of .50% of the transaction ratio of yourCard transactions; (b) chargebacks in excess of .50% of the transaction ratio of the dollar amount of your Card transactions; (c) returns in excess of 3% of the transaction ratio of your Card transactions; or (d) denied transactions in excess of 5% of the transaction ratio of your Card transactions. The existence of Excessive Activity will be a breach of these Terms and Conditions and may result in action as we deem necessary, including, but not limited to, termination or suspension of the Services or the requirement that a reserve be created or increased. We may revoke or reverse any credit given to you where: (1)the Card transaction was not made in compliance with these Terms and Conditions,Laws, Rules, or Policies; (2) the Cardholder disputes liability to us for any reason, including but not limited to the chargeback rights enumerated in theRules; (3) the Card transaction was not directly between you and theCardholder; or (4) a deposit to you was made erroneously.
All disputes between you and any of your Customers relating to any ACH transaction must be resolved between you and that customer. If we receive any notice of an ACH dispute orNACHA inquiry, we will forward such notice directly to you. We bear no financial responsibility for any disputed transaction. You must maintain an unauthorized return rate, as described in the NACHA Regulations, below 0.5% of originating debits.
7.3 REFUND CREDITS
You will not submit a credit relating to any Card transaction not originally submitted to us, nor will you submit a credit that exceeds the amount of the original Card transaction.
8. CONFIDENTIALITY AND DATA SECURITY
8.1 CONFIDENTIALITY
You shall retain in strictest confidence all information and data belonging to or relating to our business and safeguard such information and data by using the same degree of care, but no less than a reasonable amount of care, that you use to protect your own confidential information.
8.2 DATA SECURITY
You must keep secure all systems and media containing account, Cardholder, or transaction information(physical or electronic) and destroy in a manner that will render the data unreadable all such media that is no longer necessary or appropriate to store.If you store Cardholder account numbers, expiration dates, and other personalCardholder data in a database, you must follow Card Brand guidelines on securing such data. You may not retain or store magnetic stripe or CVV2, CVC2, or CID data after authorization. You shall maintain industry “best practices”regarding continuity procedures and systems to ensure security of Cardholder account information in the event of a disruption, disaster, or failure of your respective data storage system or facility, and will remain responsible for all losses arising from any such disruption, disaster, or failure regardless of cause. You agree to display your consumer privacy policy on your website as well as your security method for transmission of Cardholder data.
8.3 DATA OWNERSHIP AND SHARING DATA WITH PROVIDER PARTNER
We own all data associated with your use of the Services and you hereby grant us a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display this data for only the following limited purposes: (a) providing and improving the Services; (b) internal usage, including but not limited to, data analytics so long as such data is anonymized and aggregated with other customer data; (c) complying with applicable Law and assisting law enforcement agencies; and (d) any other purpose for which you provide explicit consent.
8.4 FRAUD MITIGATION SERVICES
We reserve the right to engage fraud mitigation services, if: (a) you request such services, (b) review of actual Card transactions or provision of Services indicates the need for such services, or (c) required by our Payment Processors or Sponsor Bank. If fraud mitigation services are utilized, you agree to take such actions as maybe legally and technically necessary to allow the fraud mitigation services to work properly. We reserve the right to assist you with implementation and configuration of the fraud mitigation services in our sole discretion. The fees and costs associated with any fraud mitigation services will be borne by you.
Such services provide information as to whether the device contains attributes which correlate to a device used in a fraudulent transaction, but do not determine the eligibility of your Cardholder for credit. You acknowledge and agree that neither we nor any such fraud mitigation service provider intend that the reports generated by the fraud mitigation service provider be considered consumer reports subject to any consumer credit reporting acts, and you will not use such reports (or any other data provided by us) for making credit eligibility decisions.If fraud mitigation services are engaged, you may be entitled to place language noting protection by such service on your website, depending on the policies of the fraud mitigation service provider.
9. INTELLECTUAL PROPERTY
9.1 RESTRICTIONS
All materials or intellectual property provided to you in connection with the Services (collectively, the “Materials”) are our protected intellectual property or that of our third-party providers. You shall not (and shall not permit any agent or third party) to:(a) copy all or any portion of any Materials; (b) decompile, disassemble, or otherwise reverse engineer (except to the extent expressly permitted by applicable Law, notwithstanding a contractual obligation to the contrary) theServices or Materials, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Services or any Materials or any portion thereof; (c) modify, translate, or otherwise create any derivative works based upon the Services or anyMaterials; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or any Materials, in whole or in part, to any third party; or (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on theServices or in any Materials.
9.2 USE OF TRADEMARKS
The Card Brands are the sole and exclusive owners of their marks and your use of their marks must comply with the Rules. We are the sole and exclusive owner of our marks (together with the Card Brands’ marks, the “Marks”),and your use of our marks must comply with our policies and instructions. At any time, we may prohibit or require changes to your use of the Marks as we deem necessary or appropriate. You agree not to contest the ownership of theMarks for any reason. Upon termination of Services, your right to use the Marks ceases.
10. FUNDING, TAXES AND REPORTING
10.1 DEPOSIT OF FUNDS TO MERCHANT POOL ACCOUNT
The Sponsor Bank will deposit all amounts of Card and ACH transactions complying with the terms of these Terms and Conditions and the Rules to the non-interest-bearing pooled account titled in the name of the Sponsor Bank for the benefit of all ProviderPartner merchants (the “Merchant Pool Account”). We will instruct theSponsor Bank to move funds owed to you from the Merchant Pool Account to an account you designate.
10.2 ELECTRONIC FUNDS TRANSFER AGREEMENT
You authorize us to initiate, process, transmit, and settle through the Sponsor Bank ACH debits or credits to the account you designate (the “Designated Account”). Your authorization will remain in effect after termination of the Services and until we have received written notice terminating this authorization and all your obligations to us have been paid in full. You irrevocably authorize us to immediately debit the Designated Account for the amounts of any chargebacks, ACH returns, fines, losses, and costs we may incur because of your use of theServices. You may request to change the Designated Account, provided that such request(a) occurs no more than once every 90 days, and (b) is on your corporate letterhead and sent pursuant to the notice provisions set forth in Section 15.9 herein; any request to change the Designated Account will be reviewed and approved or declined in our sole discretion.
10.3 RESERVE
We may, in our reasonable discretion, establish a reserve if we believe there is a risk of potential chargebacks, returns, or any other risk or liability associated with your use of the Services or to ensure current or future payment owed to us. We will provide you with notice of the reserve and the terms of the reserve. We may require that a certain portion of your transaction proceeds be held by us in reserve for a certain period of time, or that you make a lump-sum payment for the reserve. We may change the terms of the reserve at any time by providing you with notice of the new terms. We have the right to use your funds in the Merchant Pool Account or funds other wise owed to you to establish, increase, or maintain funds in the reserve related to you. We may hold a reserve as long as we deem necessary to mitigate risks associated with your transactions. You understand and agree that if you are required to establish a reserve, you are required to maintain the balance in the reserve that we have set at all times. We may, without notice, apply funds designated as reserves against any outstanding amounts owed to us under theseTerms and Conditions. We may also debit the reserve to exercise our rights under these Terms and Conditions to collect any amounts due to us including, without limitation, rights of set-off and recoupment. You agree that you are liable for all obligations associated with your use of the Services even after the release of any reserve. You will not be entitled to a return of any sums-remaining in reserve for up to 270 days following termination of your use of the Services.
10.4 ADJUSTMENTS
All transactions and deposits are subject to our audit and final verification and may be adjusted for inaccuracies. All credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules, whether or not a transaction is charged back by the Card issuer.
10.5 TAXES AND IRS REPORTING
To comply with U.S.Internal Revenue Service (“IRS”) 1099-K reporting requirements, we maybe required to file a form 1099-K with the IRS. We may collect federal backup withholding upon transaction settlement, on behalf of the IRS, from you if you do not supply your legal name, social security number, or employer identification number, or if you fail to respond to a request from us to verify the same.
11. YOUR WARRANTIES AND INDEMNIFICATION
11.1 REPRESENTATIONS AND WARRANTIES
You represent and warrant to us: (a) that all information you submit to us relating to your Application and your use of the Services is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (b) that you are at least 18 years of age if you are a natural person; (c) that, if an individual account, you are a sole proprietorship validly existing in theUnited States or its territories, and if an entity, that the entity was validly formed, registered and is in good standing in at least one of the fifty UnitedStates or its territories; (d) that you have never been placed on theMasterCard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us; and (e) that all transactions are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in writing with us.
11.2 INDEMNIFICATION
You agree to indemnify, defend, and hold us harmless for and from any and all losses, fines, costs, expenses, claims, damages, and liabilities (including, but not limited to, attorneys’ fees and costs, collections costs and fines imposed by Card Brands)paid or incurred by us and arising from, caused by, or attributable to, any of the following: (a) your use of the Services; (b) any breach by you of theseTerms and Conditions; (c) willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives in relation to these Terms and Conditions or the Services; or (d) any action by us exercising a right we have under these Terms and Conditions, Laws, Rules, orPolicies.
12. LIABILITY AND DISCLAIMER OF WARRANTIES
12.1 LIMITATION OF LIABILITY
Any liability we have to you under these Terms and Conditions, whatever the basis of the liability, will not exceed in the aggregate the amount of $5,000. In no event will we be liable for indirect, special, or consequential damages.
12.2 DISCLAIMER OF WARRANTIES
The Services are provided “ASIS” and “AS AVAILABLE.” We make no warranty, express or implied, regarding theServices, and nothing contained in these Terms and Conditions will constitute such a warranty. To the extent allowed by Law, we disclaim all implied warranties and conditions, express, implied or statutory, including without limitation those of merchantability and fitness for a particular purpose and the implied warranties of title and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. You acknowledge that you have not entered into these Terms andConditions in reliance upon any warranty or representation except those specifically set forth herein.
13. SECURITY INTEREST AND BANKRUPTCY
These Terms and Conditions will constitute a security agreement under the Uniform Commercial Code wherein you grant to us a security interest in and lien upon: (a) all funds representing amounts owed to you under these Terms and Conditions, regardless of the source of such funds; (b) all funds at any time in reserve, regardless of the source of such funds; (c) present and future Card transactions; (d) any amount which may be due to you under these Terms and Conditions; and (e) upon our request, any other security proffered to secure your obligations under these Terms and Conditions (collectively, the “Secured Assets”).You agree to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of your obligations under these Terms and Conditions and any other agreements now existing or later entered into between you and either or both of us. We may exercise this security interest without notice or demand by making an immediate withdrawal or freezing your Secured Assets. You represent and warrant that no other person or entity has a security interest in the Secured Assets, and you agree to obtain from us 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, as such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the SecuredAssets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us.
14. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL
These Terms and Conditions will be governed by and construed in accordance with the laws of Colorado except where federal law is applicable. You agree that all performances and transactions under these Terms and Conditions will be deemed to have occurred in Colorado and that your use of the Services will be deemed to be the transaction of business within the state of Colorado. You agree that the exclusive jurisdiction and venue for any disputes hereunder shall be an appropriate court located in DenverCounty, Colorado. BOTH YOU AND FRONTSTEPS AGREE TO WAIVE ANY RIGHT TO TRIAL BYJURY IN ANY ACTION RELATING TOTHE SERVICES OR ANY RIGHTS OR DISPUTES UNDER THESE TERMS AND CONDITIONS.
15. MISCELLANEOUS
15.1 AGENCY RELATIONSHIP
You authorize us with respect to the Services to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits Provider Partner to generate an electronic funds transfer to process each payment transaction. This authorization will continue as long as you continue to receive Services. You agree that Provider Partner’s receipt of transaction proceeds satisfies your Customers’ obligations to you.
15.2 FORCE MAJEURE
You agree that FRONTSTEPS will not be liable for any failure or delay in its performance of these Terms and Conditions if such failure or delay arises out of causes beyond its control and not due to its fault or negligence.
15.3 SEVERABILITY AND WAIVER
If any provision of these Terms and Conditions is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of these Terms and Conditions shall never the less remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under these Terms and Conditions by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend these Terms and Conditions or affect the validity of these Terms and Conditions or curtail our ability to enforce such provision or exercise
such right in the future. All waivers of these Terms and Conditions must be in writing and signed by us.
15.4 RIGHTS AND REMEDIES CUMULATIVE
The rights conferred upon us in these Terms andConditions are not intended to be exclusive of each other or of any other rights and remedies we have at Law or in equity, each of which will be cumulative and concurrent and in addition to every other right.
15.5 ENTIRE AGREEMENT
You agree that these Terms and Conditions, combined with the Master Services Agreement and any statements of work (the “EntireAgreement”), set forth the entire agreement between you and us related to the Services, and all prior or other agreements or representations, written or oral, are superseded by the Entire Agreement. In the event of any conflict among the Master Services Agreement, these Terms and Conditions, and any statements of work, the terms set forth in the statements of work govern.
15.6 AMENDMENTS
We may modify these Terms and Conditions in our discretion. Any such modification will be effective when posted to our website and will become binding upon you when posted. We may, but are not required to, provide notice to you of any modification by email or other electronic correspondence. It is your sole responsibility to review and maintain familiarity with these Terms and Conditions, as well as the Rules, Laws, andPolicies. If you do not agree to any modification or proposed modification of these Terms and Conditions and do not wish to be bound thereto, you shall provide written notice to us as set forth in Section
15.9, and the Services provided to you will be terminated.
15.7 CONSTRUCTION
The headings used in these Terms and Conditions are inserted for convenience only and will not affect the interpretation of any provision.
15.8 ASSIGNABILITY
These Terms and Conditions may be assigned by FRONTSTEPS but may not be assigned by you without our prior written consent.
10.5 TAXES AND IRS REPORTING
To comply with U.S.Internal Revenue Service (“IRS”) 1099-K reporting requirements, we maybe required to file a form 1099-K with the IRS. We may collect federal backup withholding upon transaction settlement, on behalf of the IRS, from you if you do not supply your legal name, social security number, or employer identification number, or if you fail to respond to a request from us to verify the same.
11. YOUR WARRANTIES AND INDEMNIFICATION
11.1 REPRESENTATIONS AND WARRANTIES
You represent and warrant to us: (a) that all information you submit to us relating to your Application and your use of the Services is correct, complete, and fully describes and details the nature, type, and scope of the business in which you are engaged; (b) that you are at least 18 years of age if you are a natural person; (c) that, if an individual account, you are a sole proprietorship validly existing in theUnited States or its territories, and if an entity, that the entity was validly formed, registered and is in good standing in at least one of the fifty UnitedStates or its territories; (d) that you have never been placed on theMasterCard MATCH system or the Combined Terminated Merchant File, and if so, you have disclosed this to us; and (e) that all transactions are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in writing with us.
11.2 INDEMNIFICATION
You agree to indemnify, defend, and hold us harmless for and from any and all losses, fines, costs, expenses, claims, damages, and liabilities (including, but not limited to, attorneys’ fees and costs, collections costs and fines imposed by Card Brands)paid or incurred by us and arising from, caused by, or attributable to, any of the following: (a) your use of the Services; (b) any breach by you of theseTerms and Conditions; (c) willful misconduct, fraud, intentional tort or negligence by you or that of your employees, agents or representatives in relation to these Terms and Conditions or the Services; or (d) any action by us exercising a right we have under these Terms and Conditions, Laws, Rules, orPolicies.
12. LIABILITY AND DISCLAIMER OF WARRANTIES
12.1 LIMITATION OF LIABILITY
Any liability we have to you under these Terms and Conditions, whatever the basis of the liability, will not exceed in the aggregate the amount of $5,000. In no event will we be liable for indirect, special, or consequential damages.
12.2 DISCLAIMER OF WARRANTIES
The Services are provided “ASIS” and “AS AVAILABLE.” We make no warranty, express or implied, regarding theServices, and nothing contained in these Terms and Conditions will constitute such a warranty. To the extent allowed by Law, we disclaim all implied warranties and conditions, express, implied or statutory, including without limitation those of merchantability and fitness for a particular purpose and the implied warranties of title and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. You acknowledge that you have not entered into these Terms andConditions in reliance upon any warranty or representation except those specifically set forth herein.
13. SECURITY INTEREST AND BANKRUPTCY
These Terms and Conditions will constitute a security agreement under the Uniform Commercial Code wherein you grant to us a security interest in and lien upon: (a) all funds representing amounts owed to you under these Terms and Conditions, regardless of the source of such funds; (b) all funds at any time in reserve, regardless of the source of such funds; (c) present and future Card transactions; (d) any amount which may be due to you under these Terms and Conditions; and (e) upon our request, any other security proffered to secure your obligations under these Terms and Conditions (collectively, the “Secured Assets”).You agree to execute financing statements or other documents to evidence this security interest. These security interests and liens will secure all of your obligations under these Terms and Conditions and any other agreements now existing or later entered into between you and either or both of us. We may exercise this security interest without notice or demand by making an immediate withdrawal or freezing your Secured Assets. You represent and warrant that no other person or entity has a security interest in the Secured Assets, and you agree to obtain from us 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, as such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the SecuredAssets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us.
14. GOVERNING LAW, JURISDICTION, WAIVER OF JURY TRIAL
These Terms and Conditions will be governed by and construed in accordance with the laws of Colorado except where federal law is applicable. You agree that all performances and transactions under these Terms and Conditions will be deemed to have occurred in Colorado and that your use of the Services will be deemed to be the transaction of business within the state of Colorado. You agree that the exclusive jurisdiction and venue for any disputes hereunder shall be an appropriate court located in DenverCounty, Colorado. BOTH YOU AND FRONTSTEPS AGREE TO WAIVE ANY RIGHT TO TRIAL BYJURY IN ANY ACTION RELATING TOTHE SERVICES OR ANY RIGHTS OR DISPUTES UNDER THESE TERMS AND CONDITIONS.
15. MISCELLANEOUS
15.1 AGENCY RELATIONSHIP
You authorize us with respect to the Services to act as your agent for the limited purposes of holding, receiving, and disbursing funds on your behalf. Your authorization permits Provider Partner to generate an electronic funds transfer to process each payment transaction. This authorization will continue as long as you continue to receive Services. You agree that Provider Partner’s receipt of transaction proceeds satisfies your Customers’ obligations to you.
15.2 FORCE MAJEURE
You agree that FRONTSTEPS will not be liable for any failure or delay in its performance of these Terms and Conditions if such failure or delay arises out of causes beyond its control and not due to its fault or negligence.
15.3 SEVERABILITY AND WAIVER
If any provision of these Terms and Conditions is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of these Terms and Conditions shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under these Terms and Conditions by us shall be construed as a waiver or estoppel of such provision or right, nor shall it amend these Terms and Conditions or affect the validity of these Terms and Conditions or curtail our ability to enforce such provision or exercise such right in the future. All waivers of these Terms and Conditions must be in writing and signed by us.
15.4 RIGHTS AND REMEDIES CUMULATIVE
The rights conferred upon us in these Terms andConditions are not intended to be exclusive of each other or of any other rights and remedies we have at Law or in equity, each of which will be cumulative and concurrent and in addition to every other right.
15.5 ENTIRE AGREEMENT
You agree that these Terms and Conditions, combined with the Master Services Agreement and any statements of work (the “EntireAgreement”), set forth the entire agreement between you and us related to the Services, and all prior or other agreements or representations, written or oral, are superseded by the Entire Agreement. In the event of any conflict among the Master Services Agreement, these Terms and Conditions, and any statements of work, the terms set forth in the statements of work govern.
15.6 AMENDMENTS
We may modify these Terms and Conditions in our discretion. Any such modification will be effective when posted to our website and will become binding upon you when posted. We may, but are not required to, provide notice to you of any modification by email or other electronic correspondence. It is your sole responsibility to review and maintain familiarity with these Terms and Conditions, as well as the Rules, Laws, andPolicies. If you do not agree to any modification or proposed modification of these Terms and Conditions and do not wish to be bound thereto, you shall provide written notice to us as set forth in Section
15.9, and the Services provided to you will be terminated.
15.7 CONSTRUCTION
The headings used in these Terms and Conditions are inserted for convenience only and will not affect the interpretation of any provision.
15.8 ASSIGNABILITY
These Terms and Conditions may be assigned by FRONTSTEPS but may not be assigned by you without our prior written consent.
15.9 ELECTRONIC COMMUNICATIONS AND NOTICE PROVISIONS
You agree that these Terms and Conditions and all documents or websites referenced herein, as well as any notices, instructions, or any other communications relating to the Services may be presented, delivered, stored, retrieved, and transmitted electronically. You must keep us informed of any change in your electronic address, as well as other contact information such as your mailing address. Your electronic signature, including, without limitation clicking to accept these Terms and Conditions, shall be the legal equivalent of your manual signature. You may withdraw your consent to doing business under these Terms and Conditions electronically at any time by contacting us. If you do so, any Services provided to you will be terminated.However, any communications or transactions between us before your withdrawal of such consent will be valid and binding. Any notice required under theseTerms and Conditions must be sent to us by certified, registered mail or reputable, national overnight courier to: FRONTSTEPS, 1290 Broadway, Suite 1250,Denver, Colorado 80203, Attention: General Counsel. Any written notice to you must be sent to the last address shown on our records.
0141446.0721396 4810-4627-7018