Commercial Entity Agreement
This Commercial Entity Agreement (this “Agreement”) is provided to all users of the Square, Inc. (“Square”) mobile application, card reader devices, and payments service (collectively, the “Square Service”) for the acceptance of card payments that are “Commercial Entities” as defined by Visa, Inc. and MasterCard International, Inc. (collectively, the “Card Brands”). As such an entity, the seller signing or electronically agreeing to the terms hereof (“Seller” or “you”) is entering into this Agreement with Paymentech, LLC (“Paymentech”), The Bank of Nova Scotia and First Data Loan Company, Canada, Paymentech’s sponsors in Canada (collectively referred to herein as “Members”), to govern the authorization, conveyance and settlement of Transactions utilizing the Square Service. By entering into this Agreement Seller is fulfilling the Card Brand Rules requiring a direct contractual relationship between the Members and Seller, and Seller is agreeing to comply with Card Brand Rules as they pertain to payments Seller receives through the Square Service. Paymentech shall be a third-party beneficiary of, and may enforce any provisions of, or cease providing card processing services under, the General Terms of Service or any Additional Terms (collectively, “Terms of Service”).
1. Card Brand Rules and Acceptance Requirements.
Seller agrees to comply with all Card Brand Rules as may be applicable to Seller and in effect from time to time, and such other procedures as Square and/or Paymentech may from time to time prescribe relating to Seller’s acceptance of Cards. Without limiting the generality of the foregoing, Seller agrees to each of the following requirements and restrictions:
1.1 Bona Fide Transactions.
Seller shall not submit any Transaction that is not a bona fide Transaction. A “bona fide” Transaction means a Transaction that is (i) between the Seller and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Seller’s property or that Seller has the legal right to sell, (iii) submitted on behalf of Seller (and not on behalf of any third party), and (iv) legal, authorized by the Customer, non-fraudulent or otherwise damaging to the Card Brand(s), and is, to the Seller’s knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, or Card Brand Rules.
1.2 Minimum/Maximum Thresholds For Card Acceptance; Surcharges.
Except as expressly permitted by law, Seller shall not (i) set a dollar amount above or below which Seller refuses to honor Cards or (ii) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Seller under this Agreement) in connection with or as a condition of the use or acceptance of a Card.
1.3 Split Transactions.
Seller agrees to submit a single Transaction for the full amount of each sale. Seller shall not split a single Transaction into two or more Transactions, except to allow for partial payment by prepaid or gift Card.
Seller shall not add any tax or surcharge to Transactions, unless applicable law expressly allows or requires the Seller to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount shall be included in the Transaction amount and shall not be collected separately.
1.5 Use of Card Account Numbers.
Seller shall not request or use Card Information for any purpose except as payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Card Brand Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Square, any Card Brand, or in response to a government request; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate in a forensic investigation if so required.
1.6 Existing Debt.
Seller shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. Seller shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer’s consent. Seller shall not submit any Transaction which it knows or should know to be unenforceable or uncollectable.
1.7 Time of Payment.
At the time Seller accepts a Card for any goods or services, the goods shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Seller’s Application (or otherwise approved in writing by Paymentech in advance).
1.8 Cash Advances.
Seller shall not disburse or advance any cash to a Customer (except as authorized by the Card Brand Rules) or to itself or any of its representatives, agents, or employees in connection with a Transaction, nor shall Seller accept payment for effecting credits or issuing refunds to a Customer.
Unless permitted by the Card Brand Rules, Seller shall not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand.
Any Transaction submitted to Paymentech to credit a Customer’s Card account represents a refund for a prior Transaction submitted to Paymentech using the same Card.
1.11 Installment Plans.
Unless specifically stated in its Application or otherwise approved in writing by Paymentech in advance, Seller shall not accept Cards in connection with installment plans. If the Customer pays in installments or on a deferred payment plan, as previously approved by Paymentech, a Transaction Data record has been prepared separately for each installment transaction or deferred payment on the dates the Customer agreed to be charged. All installments and deferred payments, whether or not they have been submitted to Paymentech for processing, shall be deemed to be a part of the original Transaction.
1.12 Recurring Transactions.
For recurring Transactions, if any, permitted by the Terms of Service, Seller must (i) obtain the Customer’s consent to periodically charge the Customer on a recurring basis for the goods or services purchased; (ii) retain this permission for the duration of the recurring services and provide it upon request to Paymentech or the issuing bank of the Customer’s Card; and (iii) retain written documentation specifying the frequency of the recurring charge, and the duration of time during which such charges may be made, and the amount or range of amounts that may be charged. Seller shall not submit any recurring transaction after receiving: (i) a cancellation notice from the Customer (so long as such notice was timely provided three (3) or more days prior to the transaction date); or (ii) notice from Paymentech or any Card Brand (via authorization code or otherwise) that the Card is not to be honored. Seller shall include in its Transaction Data the electronic indicator that the Transaction is a recurring Transaction.
1.13 Seller Identification.
Seller agrees to prominently and unequivocally inform the Customer of the identity of the Seller at all points of interaction.
1.14 Visa and MasterCard Marks.
Seller is authorized to use the Visa and MasterCard logos or marks only on Seller’s promotional materials and website to indicate that Visa and MasterCard cards are accepted as funding sources for Square Transactions.
Seller shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Seller shall promptly comply with all requests for information from Square. Seller shall not attempt to recharge a Customer for an item that has been charged back to the Customer, even with the Customer’s consent. You shall have full liability for the amount of any and all successful Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules).
2. Authorizations Required For All Transactions.
Seller is required to obtain an authorization through the Square Service, in accordance with this Agreement, for each Transaction. Paymentech reserves the right to refuse to process any Transaction Data presented by Seller unless it includes a proper authorization.
Seller is required to maintain a refund policy if Seller limits refund/exchange terms or other specific conditions for Card Transactions, Seller’s policy must be clearly provided to the Customer prior to the sale and as part of the sale confirmation process. Proper disclosure would include wording that is prominently displayed and states “NO REFUND, EXCHANGE ONLY” or something substantially similar and includes any special terms. Qualifying Seller’s refund or exchange terms does not completely eliminate Seller’s liability for a refund because consumer protection laws and Card Brand Rules frequently allow the Customer to still dispute these items. If, under Seller’s refund policy, Seller allows a refund, Seller shall implement such refund within three (3) days of approving the Customer’s request for such refund. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise. Seller shall not accept any payment from a Customer as consideration for issuing a refund.
4. Term and Termination.
This Agreement is effective upon the date Seller agrees to it (by electronically indicating acceptance hereof or otherwise) and continues so long as Seller uses the Square Service or until terminated by Seller or Paymentech. This Agreement will terminate automatically upon any termination or expiration of your Terms of Service. This Agreement may be terminated by Paymentech at any time based on a breach of any of Seller’s obligations under this Agreement or the Terms of Service, or based on the termination of the payment processing relationship between Square and Paymentech. In addition and without limiting the generality of the foregoing, Paymentech may terminate this Agreement at any time upon written notice to Seller as a result of any of the following events: (a) irregular Transactions by Seller, excessive Chargebacks, or any other circumstances which, in Paymentech’s discretion, may increase Paymentech’s or Members’ exposure for Seller’s Chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to Paymentech; (b) Seller fails in any material respect in performance or observance of any term, covenant, condition, or agreement contained in this Agreement or the Terms of Service, including, without limitation, the funding or establishing of any reserve account which Square may require; (c) a case or other proceeding shall be commenced by or against Seller in any court of competent jurisdiction seeking relief under the Bankruptcy Code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator, or the like of Seller, or of all or any substantial part of the assets, domestic or foreign, of Seller, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive days, or an order granting the relief requested in such case or proceeding against Seller (including, without limitation, an order for relief under the Bankruptcy Code) shall be entered; (d) any Card Brand notifies Paymentech or Member that it is no longer willing to accept Seller’s Transaction Data or requires Paymentech or Member to terminate or limit this Agreement; (e) Seller or any person owning or controlling Seller’s business is listed in one or more databases of terminated or high risk Sellers maintained by the Card Brands; or (f) Seller engages in conduct that creates or could tend to create harm or loss to the goodwill of any Card Brand, Paymentech, or Square, or which otherwise may impose undue risk of harm to any Card Brand, Paymentech or Square. Notwithstanding any termination of this Agreement, those terms which by their nature are intended to survive termination (including without limitation, indemnification obligations and limitations of liability) shall survive.
Termination does not affect either party’s respective rights and obligations under this Agreement as to Transaction Data submitted before termination.
Paymentech agrees to indemnify and hold Seller harmless from and against all losses, liabilities, damages and expenses: (a) resulting from any breach of any warranty, covenant, or agreement or any misrepresentation by each of us under this Agreement; or (b) arising from our or our employee’s gross negligence or willful misconduct in connection with this Agreement. Seller agrees to indemnify and hold Paymentech harmless from and against all losses, liabilities, damages and expense: (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Seller under this Agreement; (b) arising out of Seller’s or its employees’ negligence or willful misconduct in connection with Transactions or otherwise arising from Seller’s provision of goods and services to Customers; (c) arising out of Seller’s use of the Square Service; of (d) arising out of any third party indemnifications Paymentech is obligated to make, or liabilities or other obligations Paymentech may incur, as a result of Seller’s actions (including indemnifications of or liabilities to, any Card Brand or Card-issuing bank).
6. Information About Seller’s Business.
6.1 Additional Financial Information.
Upon three (3) days’ written notice at any time, Seller agrees to furnish to Square and/or Paymentech such financial statements and financial information as Square and/or Paymentech may request relating to Seller, Seller’s creditworthiness and/or Seller’s ability to fulfill its financial and other obligations under this Agreement.
6.2 Audit Rights.
With prior notice and during Seller’s normal business hours, Paymentech’s duly authorized representatives may visit Seller’s business premises and may examine Seller’s books and records that pertain to Seller’s Transactions or Seller’s compliance with this Agreement.
6.3 Other Information.
Seller agrees to provide Paymentech at least 30 days’ prior written notice of its intent to change current product lines or services, Seller’s trade name, or the manner in which Seller accepts payment Instruments. If Paymentech determines such a change is material to its relationship with Seller, Paymentech may refuse to process Transaction Data made subsequent to the change or terminate this Agreement. Seller agrees to provide Paymentech with prompt written notice if Seller is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Seller’s signature on this Agreement authorizes Paymentech to perform any credit check deemed necessary with respect to Seller. Seller will also provide Paymentech with prompt written notice of (i) any adverse change in Seller’s financial condition, (ii) any planned or anticipated liquidation or substantial change the basic nature of Seller’s business, (iii) any transfer or sale of any substantial part (25% or more in value) of Seller’s total assets, or (iv) if Seller or Seller’s parent is not a corporation whose shares are listed on a national securities exchange or on the over-the-counter market, any change in the control or ownership of Seller or Seller’s parent. Seller will also notify Paymentech of any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of Seller’s total assets not later than three (3) days after Seller obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy.
7. Disclaimer; Limitation of Damages.
We will, at our own expense, correct any Transaction Data to the extent that such errors have been caused by us or by malfunctions of our processing systems. Under no circumstances will Paymentech’s financial responsibility for our failure of performance under this Agreement exceed the total fees paid to us under this Agreement (net of Card Brand fees, third party fees, interchange, assessments, penalties and fines) for the six (6) months prior to the time the liability arose. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO SELLER’S FAILURE TO COMPLY WITH THE SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT. ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES TO WHICH THE UNIFORM COMMERCIAL CODE DOES NOT APPLY, AND PAYMENTECH AND MEMBERS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO SELLER OR ANY OTHER PERSON REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES.
8.1 Application and Credit Check.
Seller represents and warrants that statements made on its Application for this Agreement are true as of the date of its execution of this Agreement. Seller’s signature on this Agreement authorizes Paymentech to perform any credit check deemed necessary with respect to Seller.
8.2 Section Headings.
The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement.
Paymentech may assign this Agreement to an entity qualified under Card Brand Rules to perform its obligations under this Agreement. Seller cannot assign or transfer your rights or delegate its responsibilities under this Agreement without Paymentech’s prior written consent. Failure to obtain our consent may result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as Paymentech may request in order to ensure continued processing of Transactions under this Agreement.
This Agreement binds Seller and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement.
No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced.
8.7 Entire Agreement.
This Agreement represents the entire understanding between Seller and Paymentech with respect to the matters contained herein and supersedes any prior agreements between the parties. For purposes of clarity, this Agreement does not supersede the Terms of Service between Seller and Square. Seller agrees that in entering into this Agreement it has not relied on any statement of Paymentech or its representatives. The parties acknowledge and agree (i) that this Agreement applies only to Transaction Data generated within Canada; and (ii) that this is a contract for commercial services.
Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing.
8.9 Governing Law; Waiver of Jury Trial.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO WITHOUT REFERENCE TO CONFLICT OF LAWS PROVISIONS. ANY ACTION, PROCEEDING, LITIGATION, OR MEDIATION RELATING TO OR ARISING FROM THIS AGREEMENT MUST BE BROUGHT, HELD, OR OTHERWISE OCCUR EXCLUSIVELY IN TORONTO, CANADA, AND THE PARTIES HEREBY ATTORN TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF ONTARIO. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS PAYMENTECH, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR ALL COSTS, EXPENSES AND REASONABLE LEGAL FEES ARISING IN CONNECTION WITH THE ENFORCEMENT BY PAYMENTECH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT.
8.10 Force Majeure.
Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 8.10 will affect or excuse your liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services.
This Agreement may be amended at any time by Paymentech upon 30 days notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Brand Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment.
8.12 Tax Matters.
Paymentech and/or Square are obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, upon request, Seller shall provide Square and/or Paymentech with the appropriate taxpayer information covered by Internal Revenue Service (IRS) Form W-8. Paymentech or Square may, in accordance with applicable law and from time to time during the term of this Agreement, request Seller to recertify its taxpayer information hereunder. Furthermore, Seller shall be responsible for any IRS penalties accruing based on the actions or inactions of Seller despite reasonable requests and/or notices from Paymentech.
“Application” is a statement of your financial condition, a description of the characteristics of your business or organization, and related information you have previously or concurrently submitted to us, including credit and financial information, to induce us to enter into this Agreement with you and that has induced us to process your Transactions under the terms and conditions of this Agreement.
“Card” is an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts.
“Card Brand” is any payment method provider whose payment method is accepted by Paymentech for processing, including, but not limited to, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Card Brand also includes the Payment Card Industry Security Standards Council.
“Card Brand Rules” are the bylaws, rules, and regulations, as they exist from time to time, of the Card Brands.
“Card Information” is information related to a Customer or the Customer’s Card, that is obtained by Seller from the Customer’s Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the customer’s zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Card account number and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon.
“Chargeback” is a reversal of a Transaction you previously presented to Paymentech pursuant to Card Brand Rules.
“Customer” is the person or entity to whom a Card is issued or who is otherwise authorized to use a Card.
“Members” are The Bank of Nova Scotia and First Data Loan Company, Canada, or other entity providing sponsorship to Paymentech as required by all applicable Card Brand. Each Member is a principal party to this Agreement and your acceptance of Card Brand products is extended by the Member.
“Paymentech”, “we”, “our”, and “us” is Paymentech, LLC, a Delaware limited liability company, having its principal office at 14221 Dallas Parkway, Dallas, Texas 75254.
Security Standards” are all rules, regulations, standards or guidelines adopted or required by the Card Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.
“Seller”, “you”, and “your” is the Seller identified in the Application.
“Transaction” is a transaction conducted between a Customer and Seller utilizing a Card in which consideration is exchanged between the Customer and Seller.
“Transaction Data” is the written or electronic record of a Transaction, including but not limited to an authorization code or settlement record.