PAYMENT SERVICE TERMS

These Payment Service Terms, together with your Merchant Application and Agreement (“MAA”), form the “Merchant Agreement” between you (“Merchant,” “you” or “your”) and ABC Fitness Solutions, LLC (“ABC,” “we,” us,” or “our”). ABC and Merchant may also be referred to as a “party” or together as the “parties.”

If you are a merchant operating in Canada, then the Merchant Agreement will be between you and 3287646 Nova Scotia Company d/b/a ABC Global Services, our Canadian subsidiary for payment-related services, and any reference to “ABC” shall be changed to reflect “3287646 Nova Scotia Company” as the contracting entity.

The Merchant Agreement is hereby incorporated by reference into your Master Subscription Agreement (“MSA”). With respect to Payment Services (defined below), any terms in the Merchant Agreement that directly conflict with the terms of the MSA will be resolved in favor of the Merchant Agreement.

 

1. OVERVIEW

While the ability for a merchant to accept multiple forms of payment for its goods and services might seem simple, the mechanics of “payment processing” are actually quite complex and involves several different parties. ABC, for its part in this process, serves as a payment facilitator (or “payfac” in the terminology of the payments industry) having developed certain billing and payment functionalities which operate seamlessly within the ABC platform ecosystem. To function properly, however, these billing and payment features must integrate with third party tools, products and services to enable the processing of payments. The other parties involved include a payment processor, an acquiring bank, the major credit card brands, an issuing bank, and, of course, the end consumers themselves. The interconnection between various parties highlights that, although you are entering into this Merchant Agreement with us, there are, in fact, several different parties involved in the processing of payments at your business location. None of these other parties are actual signatories to the Merchant Agreement but may, depending on the circumstances, have certain rights under this contract to enforce its terms as a third-party beneficiary. The interconnection between various parties also helps to explains why several provisions of your Merchant Agreement with us have been “passed through” consistent with our obligations under these separate contracts with third parties.

 

2. DEFINITIONS

Terms not defined below will have the meanings set forth elsewhere in the MSA:

“Account” means an account maintained and administered by us for you in trust of our clients, which account we will use for the disbursement or remit of funds and collection of payments and charges to you.

“ACH” means the Automated Clearing House paperless entry system operated by the Federal Reserve.

“Authorization” means a computerized function or a direct phone call to a designated number to obtain credit approval for individual sales transactions from a Payment Brand.

“Bank” means, if Payment Services are received in the United States, the Fifth Third Bank, N.A., located in Cincinnati, Ohio; and, if Payment Services are received in Canada, the Peoples Trust Company, located in Vancouver, British Columbia, and/or such other financial institutions as we or Processor may engage in the future.

“Card” means any account or evidence of an account issued to a Cardholder under license from a Payment Brand that you accept as payment from Cardholders for goods or services. Cards include, but are not limited to, credit and debit/check cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates, and credit accounts and any other payment instrument with an embedded microcomputer EMV chip.

“Card-Not-Present” or “CNP” means mail order, telephone order, e-commence (internet) order, or other sales transactions that are not Card-Present transactions.

“Card-Present” or “CP” means a sales transaction where the Card is entered into or swiped through a terminal, register or other device, capturing the Card information encoded on the magnetic strip or chip. 

“Card Processing” means the acceptance of a Card, or information embossed on the Card, for the payment of goods or services whether the transaction is approved or declined.

“Cardholder” means a person authorized to use a Card. Some Payment Brand materials refer to Cardholders as “Card Members,” but the two terms are interchange.

“Chargeback” means a Card transaction that (a) does not comply with Payment Brand rules, Bank rules or the terms of the Merchant Agreement; (b) is disputed by the Cardholder; (c) is reversed for any reason by a Payment Brand, the Bank or the Cardholder’s financial institution; (d) was not authorized or improperly authorized, or there is reason to believe that the transactions was not authorized (due to, for example, error); or (e) is allegedly unlawful.  

“eCheck Processing” means the acceptance of an ACH or EFT transaction for goods or services through the ACH network, whether the transaction is approved, declined or processed as NOC or some other exception.

“EFT” means electronic funds transfer, which involves the transferring of funds as initiated through an electronic terminal, telephone, computer (including on-line banking) or magnetic tape for the purpose of ordering, instructing or authorizing a financial institution to debit or credit a consumer’s account.

“EMV” means Europay, MasterCard and Visa.

“NACHA” means the National Automated Clearinghouse Association, which governs ACH transactions.

“Payment Brand” is an entity which administers, promotes and issues Cards, including MasterCard Worldwide (“MasterCard”), Visa U.S.A., Inc. (“Visa”), DFS Services, LLC (“Discover”), American Express Travel Related Services Company (“American Express”), and any applicable debit networks. Collectively, MasterCard, Visa, Discovery and American Express may be referred to collectively as the “Payment Brands.”

“Payment Brand Rules” are the rules, regulations, releases, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by the Payment Brands, including, without limitation, those of the PCI Security Standards Council, LLC, Interac and NACHA (including, with respect to EBT, the Quest Operating Rules and with respect to PIN debit cards, the rules, regulations policies and procedures of the applicable debit network). The Payment Brand Rules include, without limitation, the Visa USA, Inc. Operating Regulations, Visa International Operating Regulations, MasterCard Rules, Discover Operating Regulations, and the American Express Merchant Operating Guide, as these documents may be revised from time to time.

“PCI DSS” means the Payment Card Industry Data Security Standards, available at http://www.pcisecuritystandards.org, as may be amended from time to time.

“Processor” means WorldPay, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384, and/or such other payment processor(s) as ABC may engage in the future.

“Retrieval Request” is a request for information made by a Cardholder relating to a sales transaction. 

“Sales Draft” means the paper form, whether electronically or manually imprinted, evidencing a transaction.

 

3. PAYMENT SERVICES & ASSOCIATED FEES

3.1 Payment Services. We will use commercially reasonable efforts to provide you with the payment services described in the MSA, subject to the terms and conditions of the Merchant Agreement (“Payment Services”). The Payment Services will be provided in accordance with our customary practices, as may be modified by us from time to time. In exchange for the provision of Payment Services, you agree to pay us the rates, fees or other charges described in the MSA, or an Order Form, schedule or other attachment thereto (collectively, “Fees”). Subject to the terms of the Merchant Agreement, you will receive the right to accept payments from customers, clients and/or members (individually, a “Member” and, collectively, “Members”) for goods and services at your business location through validly issued Cards and, where approved, by ACH/EFT. We will provide you with Payment Services on transactions run on active, non-defaulted Membership Agreements that have been properly delivered to us through the ABC IGNITE platform, or as otherwise permitted by law. For ACH transactions, ABC will only process the following ACH SEC codes: TEL, WEB, PPD, and CCD.

3.2 Exclusivity. During the term of the Merchant Agreement, we shall be the exclusive provider of Payment Services, and you will not seek or accept services the same as or similar to the Payment Services from any other provider unless we have given our prior written approval in advance.

3.3 Agency Relationship. With respect to Payment Services, you hereby authorize us to act as your agent for the limited purpose of holding, receiving and disbursing funds on your behalf. Your designation and appointment of ABC as your agent will enable us to, among other things: (a) establish and maintain an Account (or multiple Accounts) on your behalf with a Bank and Processor that we designate; (b) receive payments due from Members under a Membership Agreement or as otherwise authorized by them; (c) receive sales data from you and tender it for processing; and (d) in connection with your Account (or multiple Accounts), execute any and all documents, or take any and all other actions, on your behalf that we, in our reasonable judgment, determine to be necessary or appropriate in being able to provide you with Payment Services. This authorization will continue until all of your Accounts are closed or have been terminated. You agree that our receipt of transaction proceeds satisfies your Members’ payment obligations to you. 

3.4 Fees for Payment Services. You agree to pay us the fees, charges and payment processing rates for Payment Services as set forth in the MSA, including any Order Form, schedule or other attachment thereto. We reserve the right, from time to time, to change the fees, charges and payment processing rates for Payment Services for various reasons, including, without limitation, upon a change in your average monthly transaction volume, a change in your late or service fee policies, or changes in our costs associated with providing the Payment Services (including, without limitation, unilateral fee increases imposed by the Processor or Bank). You may dispute such a fee increase by delivering to us written notice of the objection within 60 days from your receipt of the first monthly report to reflect such fee change. If you properly submit an objection, we will attempt to negotiate a mutually agreeable solution, the failure of which will give rise to either party’s right to terminate the MSA for cause by providing a 30-day written notice. Notwithstanding anything to the contrary, any fees, charge and payment processing rates for Payment Services based on a “cost-plus” pricing structure, we may, but are not required to, automatically pass through third-party fees for Payment Services including, without limitation, interchange fees, dues, and assessments.  

3.5 Government and Regulatory Actions. We will not be required to provide you with advance notice of any increase in our fees or costs related to the provision of Payment Services that result from a fine, charge, fee or cost incurred in connection with any state, federal or other regulatory action, change in laws or regulations, or escheatment of funds.

3.6 Payment Brand Fines. You agree that we are hereby permitted to pass through any and all fines, penalties, or other related fees that we incur from the Payment Brands as a result of your acts or omissions, including, but not limited to, violations of the Payment Brand Rules. You shall reimburse and indemnify us for any fines imposed by the Payment Brands resulting from your acts or omissions, including, but not limited to, violations of the Payment Brand Rules.

 

4. ELIGIBILITY, UNDERWRITING & MERCHANT ACCOUNT

4.1 Eligibility. To receive Payment Services, you must be eligible for an Account which requires you to meet the following conditions: (a) your business must be located in and operate in the U.S. or Canada; (b) the principals listed in your MAA must be U.S. or Canadian citizens, or be permanent legal residents of the U.S. or Canada; (c) your business must be authorized and licensed to do business in the states, provinces or territories where you seek to operate; (d) your Account must be linked to a depository account with a chartered bank in the U.S. or Canada (depending on where the merchant is located and doing business); (e) you must never have been placed on the MasterCard MATCH system or the Combined Terminated Merchant File; and (f) the individual opening an Account on your behalf must be at least eighteen (18) years old and have the legal authority to bind you to the Merchant Agreement. If we provide you with Payment Services or establish an Account on your behalf, then you acknowledge that you meet the eligibility criteria set forth above.

4.2 Merchant Application and Agreement (MAA). All of your business locations and new Accounts must be submitted to our underwriting team for approval. To apply, you will be asked to complete and submit a MAA for internal review. If the MAA is approved – which we may indicate by activating your Account – then the MAA will automatically convert from being an “application” to a fully formed Merchant Agreement, inclusive of these Payment Service Terms. The Merchant Agreement, once formed, will also automatically become part of your overall MSA with us. All of this will happen automatically, without the need for further signature or party action, provided that you may still be required to provide us additional information needed for your Account. If your MAA is rejected for any reason, we will contact you to explain the basis for our decision and discuss with you options for correcting any deficiencies. We reserve the right to deny Payment Services to any merchant in our sole discretion. It will be your responsibility to notify us as soon as possible of any changes to the information included in your MAA, including: (a) a material change in your financial condition; (b) any additional business locations, or a new business; (c) a change in the identity of your principals or owners; (d) a change in the form of your business organization (for example, you change from a corporation to an LLC); (e) a change in the types of goods or services that you provide; and (f) a change to the manner in which sales are completed. Please contact your designated ABC account executive or customer support manager to make us aware of any such changes. At our election, we may contact you from time to time to confirm the information in the MAA is still accurate and complete. You agree to cooperate with us in any such outreach and to timely provide us with the information requested.  

4.3 Underwriting Authorization. By submitting a MAA, you authorize us to investigate your finances and business operations in connection with your Account. To these ends, you grant us (or our designated third party agent) the right to obtain consumer reports and background checks from a credit reporting agency or third party that conducts identity and background checks on the MAA signers, owners, partners, or members with 25% or more ownership, and principal shareholders if the entity is a corporation and the individual with managerial control over the business is different from the signer. You agree to provide us with any supplemental documentation that we request, including, without limitation, your articles of incorporation, articles of organization, business license, and passports, date of birth, social security number (or other identifier), or drivers’ licenses for individual owners or partners. You acknowledge that we may share the information collected during underwriting with our Affiliates, Processor and Bank, or with any other service provider, as may be reasonably required to provide you with Payment Services.   

4.4 Inspection. Upon approval and set-up of your Account, you grant us a continuing right to inspect your business location(s) to confirm your compliance with the Merchant Agreement. If we exercise the right to inspect, one of our authorized representatives will contact you during normal business hours to set up a convenient time for the inspection. We may conduct reasonable audits and make copies of your books, accounts and records with respect to sales transactions at your business location(s) and in connection with any investigation. We will seek to minimize business disruption and focus our inspection to only audit those books, accounts and records which are relevant to your receipt of Payment Services or compliance with the Merchant Agreement.

4.5 Account Set-Up; Link to Depository Account. Subject to the terms of the Merchant Agreement, once you have cleared underwriting, we will use commercially reasonable efforts to set up and administer an Account (or multiple Accounts) held in trust for our clients so that you can receive Payment Services. If you operate in the U.S., then we will connect your Account(s) to a separate depository account of yours with a U.S.-chartered bank which we (or Processor or Bank) may approve. If you operate in Canada, then we will connect your Account(s) to a separate depository account with a Canadian bank of yours which we (or Processor or Bank) may approve. For clarity, your Account and depository account are two separate accounts. The Account we control and administer on your behalf; the depository account you control.

4.6 Account Authorizations. You grant us express authorization to do the following with respect to your Account(s): (a) to access your Account(s) for purposes of initiating, processing, transmitting and settling sales transactions on your behalf, together with any adjustments, deductions or offsets as permitted by the MSA; (b) to collect any Fees or other amounts owed to us or our Affiliates directly from your Account(s), Reserve Account, Billing Reserve, or any other source of available funds tied to your Account(s); (c) to hold or withhold any amounts owed by you for garnishments, tax levies or other amounts as directed by valid court order or enforcement body; (d) to recoup, retrieve, hold back, transmit or collect from your Account(s), Reserve Account, or any other source of available funds tied to your Account(s), any amounts due for returns, Chargebacks, credits, fines, fees, penalties, refunds, overdrawn accounts or outstanding Fees or other liabilities owed; (e) to collect, debit or withhold from your Account(s) or your depository account any fees, charges, royalties or other amounts owed to third parties which you have authorized under the MSA, including, as applicable, a franchisor, vendor, supplier or other third party; (f) to share information about you or your Account(s) with the Processor, Bank or Payment Brands as reasonably required to provide Payment Services to you, or with your franchisor (as applicable); and (g) to take any other action as described or permitted by the MSA or this Merchant Agreement. If you are a franchisee that is part of a franchise system, whereby the franchisor has engaged us to recoup, retrieve, hold back, transmit or collect royalties or other amounts from you to the franchisor pursuant to a franchise agreement or other similar arrangement between you and the franchisor, you hereby expressly authorize us to recoup, retrieve, hold back, transmit or collect such amounts from you and transmit them to your franchisor. You agree that any dispute as to whether we have the right to transmit such amounts to the franchisor must be solely resolved between you and the applicable franchisor, and that we will not act on your instructions alone to change or alter the amounts so collected and transmitted. The authorizations described herein shall remain effective until the later of the MSA’s Term or until all of your financial obligations to us have been fully satisfied, as we may reasonably determine. 

4.7 Sufficiency of Available Funds. You must maintain sufficient funds in your Account(s) at all times to satisfy your financial obligations and liabilities, including, without limitation, payment of all Fees, Chargebacks, refunds and ACH returns. 

4.8 Records Requirements. You are required to preserve a paper or electronic copy of all actual paper Sales Draft, credit vouchers and debit card sales, and, if a mail, phone order or preauthorized order is involved, the Cardholder’s signed authorization for the transaction, for at least three (3) years after the date you present the sales transaction. We may produce any records and data about your business that is in our possession or control in response to a valid subpoena or legal request.

4.9 Account Dormancy. If, at any time, we have a reasonable basis to believe your business location is no longer in operation, or you have not accessed your Account for 12 months or more, or if there has been no payment activity on your Account for 12 months or more, then we shall have a right, with or without notice to you, to close the Account. If the applicable Account has an available credit, we will attempt to contact you by email or U.S. mail to make you aware of the available credit and our plans to close your Account. Upon receipt of notice, you may choose to withdraw the available funds or keep the Account open. If you fail to respond within the time period specified in the notice, then we reserve the right to close your Account and escheat funds in accordance with applicable law.   

 

5. PROCESSING OF PAYMENTS

5.1 Prohibitions. You shall not, either through yourself, your employees, your agents, or a third party:

1. Submit for payment into interchange any transaction that is illegal or that you should have known was illegal;
2. Require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, expiration, signature or any other account-related data in plain view when mailed;
3. Add any tax to a transaction, unless applicable law expressly requires you to impose a tax, and in such event the tax amount must be included in the transaction amount and not collected separately;
4. Request or use an account number for any purpose other than as payment for goods or services, except as permitted by Payment Brand Rules;
5. Disburse funds in the form of travelers checks, if the sole purpose is to allow cardholder to make a cash purchase of goods or services from you;
6. Permit a Cardholder to purchase travelers checks, or other similar item, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from you;
7. Accept a Card to collect or refinance an existing debt that has been deemed uncollectible;
8. Enter into interchange a transaction that represents collection of a dishonored check;
9. Require a Cardholder to waive his or her rights to dispute a transaction as a condition of sale;
10. Accept Cardholder payments for previous Card charges incurred at your business location;
11. Submit for payment into interchange any transaction that may in the sole discretion of a Payment Brand damage the goodwill of such Payment Brand or reflect negatively on a Payment Brand;
12. Add any surcharge to a debit transaction;
13. Enter into interchange any Card transaction that was previously subject to a Chargeback and subsequently returned to you, irrespective of Cardholder approval; or
14. Redeem a Visa Prepaid Card for cash.

5.2 Honoring Cards.

1. You will accept, without discrimination, all valid Cards properly presented for payment for bona fide, legitimate business transactions arising out of your usual trade or business and for transactions originated by you; 
2. If you are a U.S. retailer, you may require a minimum purchase amount on credit card transactions, however, minimum purchase amount must not exceed $10.00 USD and does not apply to transactions made with a debit card;
3. You will not require any Cardholder to pay any part of any fee imposed upon you by the Merchant Agreement, whether through any increase in price or otherwise require a Cardholder presenting a Card to pay any charge as a condition of sale that is not also required from Members paying in cash. You may, however, offer discounts to Members for cash purchases. You may also charge a service fee on transactions if you charge a service fee for all payment methods (check, credit card, etc.), or for a specific payment mode (telephone) and not for other payment modes (face-to-face); and
4. You may honor Cards only at the business location(s) approved by us, as noted in your Order Form or elsewhere in the MSA. Additional locations may be added subject to our written approval. All current and future locations will be bound by the Merchant Agreement.
5. For Card Present transactions, you will (i) examine the Card for the Cardholder’s signature and if the Card is not signed, request identification to confirm that the Cardholder is the person that he or she purports to be and determine in good faith and to the best of your ability that the Card is valid on its face; (ii) check the effective date and expiration date of the Card (if any), and examine any Card security features, such as a hologram; and (iii) as required by the Payment Brand Rules, obtain the Cardholder’s signature on the Sales Draft and compare that signature to the signature on the Card;
6. You will obtain Authorization before completing any transaction; and, unless a Sales Draft is electronically generated or is the result of an internet, mail, telephone or preauthorized order, you will obtain an imprint of the Card; 
7. You will enter a description of the goods or services sold and the price thereof (including any applicable taxes); and
8. You will deliver a true and completed copy of the Sales 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.

5.3 Authorization.

1. For Card transactions submitted electronically, you must obtain Authorization through any of the means offered by us. If Authorization is granted, you must print the authentic authorization number or ensure that it appears legibly in the appropriate location on the Sales Draft. You may only use the authentic approval number and must never submit fictious or generic approval numbers. If Authorization is denied, then you shall not complete the transaction and shall follow any instructions that we or the Card issuer provides. 
2. Authorization for Card-Present transactions is the same as for electronically submitted transactions, however, if a terminal or software application is inoperable at the time of an Authorization request, you must manually Authorize the transaction. The Card transaction may be entered as a “forced sale” provided an authentic approval number is also entered. You may only use the authentic approval number and must never submit fictious or generic approval numbers.
3. All Card-Not-Present transactions will be at your own risk. By submitting a Card-Not-Present transaction for Authorization, you represent and warrant that the person whose name is submitted as the Cardholder made the authorization for the purchase.
4. For recurring transactions (whether Card Processing or eCheck Processing transactions), you must obtain written authorization from the Cardholder for the goods or services to be charged to their bank account, specifying the frequency of the recurring charge and the duration of time during which such recurring charges may be made.
5. For eCheck Processing, you must obtain written authorization from each individual or entity whose bank account is to be debited or credited, and the eCheck Processing Sales Draft must be authentic, accurate and conform to NACHA rules in all material respects. You further agree that you have not used any other third party other than ABC to assist with the origination of the eCheck Processing Sales Draft.
6. You must not divide a single transaction between two or more Sales Drafts, or two or more Cards. You must also not attempt to obtain Authorization on an expired Card; the transaction will be considered invalid if processed on a Card that is expired regardless of whether Authorization has been obtained. You shall not obtain (or attempt to obtain) Authorization for a sales transaction that you know, or should have known, to be either fraudulent or not authorized by the Cardholder.
7. You acknowledge that an Authorization provides only that the Cardholder’s account has sufficient credit available to cover the amount of the sales transaction, that an Authorization is not a guarantee of payment, and that an Authorization will not waive any provision of the Merchant Agreement or validate a fraudulent transaction or transaction involving use of an expired Card.

5.4 Transmission Method. If youuse electronic Authorization or data capture services, you will enter the data related to a transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the transaction is completed. If you have provided your own electronic terminal or similar device, such terminals must meet our (or, as applicable, Processor’s or Bank’s) requirements for processing sales transactions. Information regarding a transaction transmitted with a computer or magnetic stripe reading terminal must be transmitted to us in the form and manner in which we permit, as may be revised from time to time, or as required by the Payment Brand Rules. If we request a copy of a Sales Draft, credit voucher or other transaction evidence, you must provide it within three (3) business days following our request.

5.5 Card Recovery. You will use your reasonable, best efforts to recover any Card: (a) on Visa Cards, if the printed four digits above the embossed account number do not match the first four digits of the embossed account number; (b) if you are advised by us or Bank (or its designee), the Payment Brand or the designated voice authorization center to retain it; (c) if you have reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or (d) for MasterCard Cards, the embossed account number, indent printed account number and/or encoded account number do not agree, or the Card does not have a MasterCard hologram on the lower right corner of the Card face. This obligation upon you in no way authorizes a breach of the peace or any injury to persons or property, and you will hold us, Processor and Bank harmless from any claim arising from any injury to person or property or other breach of peace.

5.6 Refunds and Returns. You agree to process returns and provide refunds and adjustments for goods or services in accordance with your Membership Agreements (as defined below), our MSA with you, and Payment Brand Rules. The Payment Brand Rules require that you will: (a) maintain a fair return, cancellation, or adjustment policy; (b) disclose your return or cancellation policy to Members at the time of purchase; (c) not give cash refunds to a Members in connection with a payment card sale, unless required by law; and (d) not accept cash or any other item of value for preparing a Card sale refund. You will not submit a refund that exceeds the amount of the original transaction. Your refund policies must be the same for all payment methods. If Members are dissatisfied with your refund policy, they may dispute the transaction.

5.7 Customer Service. You must respond promptly to inquiries from Members regarding your goods or services. We reserve the right to seek reasonable fees and reimbursement, in addition to any applicable Payment Brand fees or charges, due to excessive Cardholder inquiries, Retrieval Requests, refunds or Chargebacks. With respect to each complaint made, you will maintain a record of: (a) the Cardholder’s name; (b) a unique confirmation number, transaction sequence number, or other identifier that you can use to reference the transaction in subsequent communications with us; (c) the date and approximate time that the Cardholder asserted the claim or defense; (d) the nature of the claim or defense; and (e) the action that you took in an attempt to resolve the dispute. You must provide us with this information within 10 days of our request. 

5.8 Membership Agreements. Subject to any ABC-required authorizations (for example, a provision authorizing payments by your members or customers), you will be solely responsible for the contents and administration of your own contracts with Members and prospective Members (collectively, “Membership Agreements”). From time to time, you may request, and ABC may provide, forms such as templates for Membership Agreements, for your use in connection with the operation of your fitness facility.  We make no representation or warranty of any kind with such form, including, without limitation, the compliance of such forms with any federal, provincial, state, or local laws, rules, or regulations. You understand that such forms are provided to you as a convenience, in “as is” condition, and that you are ultimately responsible for and deemed the author of such form that you use. Under no circumstances will we, or any of our Affiliates, be liable to you or any third party (including, without limitation, Members) for any damages, losses or claims associated with your Membership Agreements. It shall be your sole responsibility to ensure that your Membership Agreements comply with applicable law, including any health spa statute or similar legislation that applies in the jurisdiction where your business operates. You will also be solely responsible for setting the rules and policies governing membership freezes and processing Member cancellations of Membership Agreements. Where a Member contacts us directly, if we (in our sole judgment) determine that cancelling a Membership Agreement would be the most effective resolution of a Member’s complaint, you give us the express right and authority to cancel the Membership Agreement without your prior knowledge or consent; provided, however, that if we decide to cancel the Membership Agreement, we will pay you the remaining balance for any amounts the Member would have owed through the end of the Membership Agreement’s then-current term. You will maintain a physical or digital copy of all Membership Agreements associated with your business location(s). If, in our sole discretion, a past due account becomes uncollectible, you will be responsible for further collection of said amounts and we shall be released from any further responsibility with respect to such Membership Agreement. You must notify us or properly update in our system if you cancel, freeze, or alter any Membership Agreement. 

5.9 Chargebacks. You are immediately liable to and shall pay us for the full amount of payment of any Chargeback (i.e., face amount of the Card transaction) plus any associated fees, fines, expenses or penalties (including those assessed by Bank, Processor or Payment Brands) regardless of the reason for, or timing of, the Chargeback. You hereby authorize us to debit without notice Chargebacks and related handling fees from your Account(s) and daily collected transactions, and if such collections are inadequate to reimburse us, to deduct such amounts by ACH debit or other means from your depository account or Reserve Account (as applicable). If we are unable to recover funds related to a Chargeback for which you are liable, you agree to pay us the full amount of the Chargeback immediately upon demand. You shall pay all costs and expenses, including without limitation reasonable attorneys’ fees and other legal expenses, incurred by us or on our behalf in connection with the collection of any unpaid Chargebacks. Your obligations with respect to Chargebacks shall survive any termination of the Merchant Agreement.

You agree to assist us as requested, at your expense, with investigating any of your transactions processed through the Payment Services. Failure to respond to Chargeback notices in accordance with Payment Brand Rules and the Merchant Agreement shall constitute a waiver by you of your right to question or reverse a Chargeback. You shall provide the necessary information to investigate or help resolve any Chargeback. We do not assume any liability for any assistance to you in contesting Chargebacks. You grant us permission to share records or other information required with third parties, such as the Cardholder and Cardholder’s issuing bank, in order to investigate and/or mediate a Chargeback. If the Cardholder’s issuing bank or the Payment Brand does not resolve a dispute in your favor, or you choose not to contest the Chargeback, the Chargeback amount and any associated fees may be recovered from you. You acknowledge that your failure to assist us in a timely manner when investigating a transaction may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.

At any point, we, the Processor or Bank may determine that you are incurring excessive Chargebacks. The Payment Brands may impose fines or impose restrictions on you in the event you experience excessive Chargebacks as described in the Payment Brand Rules. Excessive Chargebacks may also result in restrictions on your use of Payment Services, including, without limitation: (a) changes to the terms of the Reserve; (b) increases to applicable Fees for Payment Services; (c) delays in the payout of remits or settled funds; or (d) possible suspension of your Account(s) and Payment Services. You shall reimburse and indemnify us for any fines imposed by the Payment Brands resulting from excessive Chargebacks.

5.10 Processing Limits. We reserve the right to assign you a maximum dollar amount per sales ticket and an aggregate maximum dollar amount of Card transactions per calendar month. You may request an increase to these limits, but any increase will be at our sole discretion. We may also decrease the maximum amounts at any time, even if the amounts had been previously authorized or increased. If you submit one or more transactions which would cause you to exceed any maximum volume limit, we may, as we may reasonably determine, either: (a) process the transactions; (b) process the transactions but cause all or a portion of the proceeds of such transactions to be placed in a Reserve Account; or (c) return a decline code for each such transaction.

5.11 Direct Sub-Merchant Relationship With Processor. Certain Payment Brands may also require that you enter into a direct contractual relationship with the Processor (a) if you are categorized within certain MCC codes designated by the Payment Brands; (b) if your Card transaction volume exceeds $1,000,000 (or such other amount as specified by the Payment Brand); or (c) based on other criteria as provided in the Payment Brand Rules. Where a direct contractual relationship with the Processor is required, by agreeing to the Merchant Agreement, you also agree to the terms and conditions of the Merchant Services Agreement for Sub-Merchants, effective as of the date your transaction volume exceeds the applicable threshold amount. Processor shall have a right to independently enforce the Merchant Services Agreement for Sub-Merchants, a copy of which is available here.

 

6. ACCEPTANCE & SETTLEMENT

6.1 Acceptance & Settlement. We will accept all valid transactions submitted by you and shall present the same to the appropriate Payment Brand for collection against the Cardholder’s account. We will provisionally credit the value of collected Sales Draft to your Account(s) and reserve the right to adjust amounts collected to reflect the value of Chargebacks, fees, penalties, any authorized franchise-related fees or charges (as applicable), amounts owed for late submission, items for which we did not receive final payment, or other valid and authorized amounts. Settlement of funds will be in United States Dollars for clients in the United States and Canadian Dollars for our clients in Canada. Where a Member has submitted payment to us through Payment Services, Member’s payment obligation to you in relation to such payment shall be extinguished and you shall not attempt to hold the Member liable if we ultimately do not remit these funds to you.

6.2 Statement Review. You must regularly and promptly review all statements related to your Account(s), banking statements, and other communications sent to you and shall immediately notify us if any discrepancy exists between your records and those provided by us, your bank or financial institution, or with respect to any transfer that you believe was not authorized by you or the Cardholder. If you fail to notify us in writing within fourteen (14) calendar days after the date that we make available a statement of your Account(s) or other report of activity to you, you will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer. The foregoing does not limit in any way your liability for any breach of the Merchant Agreement.

6.3 Endorsement. The presentment of Sales Draft for collection and payment is your agreement to sell and assign your right, title and interest in each Sales Draft completed in conformity with our (and Bank’s) acceptance procedures and shall constitute an endorsement by you to us of such Sales Draft. You hereby authorize us to supply such endorsement on your behalf. You agree that this Merchant Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Sec. 365, as amended from time to time. You acknowledge that your obligation to us for all amounts owed under the Merchant Agreement arises out of the same transaction as our obligation to deposit funds into your Account(s).

6.4 Advances. While we do not generally send funds in advance of the regularly scheduled remit date, we will consider your request for an advance on a case-by-case basis, which we may accept or deny in our sole discretion. Any advance request that we accept may be subject to additional fees or charges, which shall be set forth in your Order Form.

 

7. COMPLIANCE & SECURITY

7.1 Compliance with Applicable Laws. You are and will remain in full compliance with all laws, statutes and federal and state/provincial regulations, including, without limitation, the Bank Secrecy Act, the Electronic Funds Transfer Act, the anti-money laundering regulations, the Corporate Transparency Act, and the regulations of the Office of Foreign Asset Control. You will immediately notify us of any regulatory enforcement action or any actual or suspected failure to comply with applicable law.

7.2 Compliance with Payment Brand Rules. You are and will remain in full compliance with all Payment Brand Rules. The Payment Brand Rules are incorporated by reference into the Merchant Agreement and will control with respect to any conflict in terms between the Merchant Agreement and the Payment Brand Rules. You will not discriminate against Cards or Payment Brands (e.g., limited acceptance options) except in full compliance with Payment Brand Rules, and will comply with all Payment Brand Rules, applicable laws and regulations relating to your business operations, PCI DSS obligations, the use of a Payment Brand’s marks, and each transaction acquired hereunder. You expressly agree that you will accept Cards and protect, utilize or restrict transaction data, including the magnetic stripe and CVV2, in accordance with the terms of this Merchant Agreement, applicable law or regulation, and the Payment Brand Rules, and will cooperate with any audit requested by a Payment Brand until such audit is complete.

In addition to complying with each Payment Brand’s obligations or prohibitions related to acceptance, disbursement, or resubmission of a transaction, you may not submit any illegal, fraudulent, or unauthorized transactions and shall only submit transactions for the sale of your own goods or services, and not any other person or company, and may not receive payment on behalf of or, unless authorized by law, redirect payment to any other party. You covenant that you are not a third-party beneficiary under any agreement with a Payment Brand, however, a Payment Brand may be a third-party beneficiary of the Merchant Agreement, and shall have the rights, but not any obligation, necessary to fully enforce the terms of the Merchant Agreement against you.

You authorize us to conduct checks of your background, credit or banking information, as necessary, and agree that all information obtained under this Merchant Agreement may be shared with the Payment Brands. You acknowledge and agree that you will be responsible for your own employees’ actions, you will notify us of any third party that will have access to the data of any Cardholder, and you will immediately report all instances of a data breach to us immediately after you have reasonably identified an incident.

7.3 Compliance with American Express OptBlue. You acknowledge and agree that you may be converted from the OptBlue Program to a direct Card acceptance relationship with American Express if and when you become a High CV Merchant in accordance with the American Express Merchant Operating Guide. You further agree that, upon conversion, (a) you will be bound by American Express’ then-current Card Acceptance Agreement; and (b) American Express will set pricing and other fees payable by you for Card acceptance.

7.4 Compliance with e-Commerce Requirements. If you make goods and services available to your Members online, you will take steps to ensure that your website (or other e-commerce platform): (a) prominently displays the merchant name that will appear on the Cardholder statement; (b) provides a complete description of goods or services offered; (c) provides delivery standards, including method and time for delivery; (d) provides the terms and conditions of purchase; (e) provides the return/refund policy described in reasonable detail; (f) allows an opportunity to view and confirm the order before order submission; (g) provides a secure method for payment data transmission; (h) provides the currency of transaction provided (USD); (i) provides a disclosure of your outlets to country of origin; (j) displays the card association or payment network logos; and (k) provides your privacy policy. Further, you will use industry standard website/e-commerce security and fraud protection measures (e.g., ReCaptcha, Cloudflare, etc.) designed to prevent e-commerce fraud such as credit/debit card testing. We will not be responsible and will not reimburse you for any fees or charges for Payment Service, or any other amounts arising from fraudulent e-commerce activity on or in connection with your website and/or your failure to use preventative measures.

7.5 Compliance with Trademark and Service Mark Standards. In order to inform Cardholders that debit card sales may be transacted at your business location, you may display the trademark or service mark of each Payment Brand provider near the entrance, near the point-of-sale terminals and/or on the windows of your business location. Your use of any trademarks or service marks will comply with applicable Payment Brand Rules. If you use a Payment Brand provider’s trademark or service mark, you will not be considered, under any circumstances, to be a licensee or sub-licensee of any such mark, nor will you be deemed to have or to have acquired any right, title or interest in or to such marks.

7.6 Compliance with EMV Standards. To the extent you are required under Payment Brand Rules, or if you otherwise elect to utilize EMV chip-capable terminals, all EMV chip-capable terminals that you use must appear on the EMV co-approved terminal list maintained by the Payment Brands.   

7.7 Data Security and Privacy. You represent to us that you do not have access to Card information (such as the Cardholder’s account number, expiration date, and CVV2) and you will not request access to such Card information from us. In the event that you receive such Card information in connection with our Payment Services, you agree that you will not use it for any fraudulent purpose or in violation of any Payment Brand Rules, Payment Card Industry Data Security Standards (“PCI DSS”) or applicable law. If at any time you believe that Card information has been compromised, you must notify us promptly and assist in providing notification to the proper parties. You must ensure your compliance and that of any third party service provider utilized by you, with all security standards and guidelines that are applicable to you and published from time to time by the Payment Brands, including, without limitation, the ACH Security Framework, the Visa U.S.A. Cardholder Information Security Program (“CISP”), the MasterCard Site Data Protection (“SDP”), and (where applicable), the PCI Security Standards Council, Visa, and MasterCard PA-DSS (“Payment Application Data Security Standards”) (collectively, the “Security Guidelines”). If any Payment Brand requires an audit of you due to a data security compromise event or suspected event, you agree to cooperate with such audit. You may not use any Card information other than for the sole purpose of completing the transaction authorized by the Cardholder for which the information was provided to you, or as specifically allowed by Payment Brand Rules or as required by law. By accepting the Merchant Agreement, you confirm that you have read, understood, and accepted our Privacy Policy found at https://abcfitness.com/privacy-policy/.

7.8 Security Tools; Access. From time to time, we or Processor may make available to you third-party software, hardware, applications, or other tools designed to assist in complying with the Security Guidelines or other requirements. You acknowledge and agree that your use of these tools does not alter or reduce your compliance responsibilities under the MSA. Certain aspects of such tools may offer insurance, reimbursement, or other benefits to you in case of a security breach. You hereby acknowledge and agree that your use of such tools and receipt of such benefits is subject to separate terms and conditions between you and the provider of such tools, and that your non-compliance with PCI DSS may impact your right to receive such benefits. Further, you will take all reasonable steps to protect the security of the computers and other electronic devices through which you are accessing our Payment Services including, without limitation, keeping your passwords and log-in credentials secure.

 

8. REPRESENTATIONS & WARRANTIES

8.1 Merchant Representations and Warranties. You represent and warrant that:

1. All information contained in your MAA or any other documents delivered to us in connection with the Merchant Agreement is true and complete and properly reflects your business, financial condition and principal partners, owners or officers;
2. If you are an individual entering into the Merchant Agreement on behalf of the Merchant, you have the power to execute, deliver and perform the Merchant Agreement, and the Merchant Agreement is duly authorized, and does not and will not violate any provisions of federal or state law or regulation, or conflict with any other agreement to which you are subject;
3. You have all licenses, if any, required to conduct your business and are qualified to do business in every jurisdiction where you are required to do so;
4. There is no action, suit or proceeding now pending or to your knowledge threatened by or against you which would substantially impair your right to carry on your business as now conducted or adversely affect your financial condition or operations;
5. You have performed and will perform all of your obligations to the Cardholder in connection with the transaction evidenced by each Sales Draft;
6. No other processing relationship exists between you and another Card Processing institution, for the business location(s) covered by your MSA with us;  
7. With respect to Card Processing transactions, each Cardholder has authorized the debiting and/or crediting of his or her account; (ii) each Sales Draft is for an amount the Cardholder has agreed to; and (iii) each Sales Draft is in all other respects properly authorized.
8. With respect to eCheck Processing transactions, you have obtained written Authorization of each individual or entity whose account is debited or credited as noted in the Sales Draft prior to originating such entry, and the Authorization obtained was in effect at the time the Sales Draft entry was submitted, and such Sales Draft entry is authentic, accurate and confirms to NACHA Rules.
9. You will not sell, purchase, provide or exchange any Cardholder’s account name or number information in any form to any third party except to us (or our Processor or Bank, as applicable) or pursuant to written government request, and then only upon prior notice to give us sufficient time to file a protective motion.
10. You are in compliance with all applicable requirements to be considered PCI DSS compliant (including compliant with the PCI DSS Cloud Computing Guidelines), you have performed the necessary steps to validate your compliance with PCI DSS, and will remain in compliance for the duration of the Term.
11. You are in compliance with the ACH Security Framework and will remain in compliance for the duration of the Term.

 

9. TERM & TERMINATION

9.1 Term. The Merchant Agreement shall be effective upon acceptance of the MAA by us and will continue in effect co-terminus with the Term as set forth in the MSA. If either party terminates the MSA, then the Merchant Agreement shall terminate at the same time subject to any surviving provisions.

9.2 Events of Default. If any of the following events occur (each, an “Event of Default”):

1. a material adverse change in your business, financial condition, business procedures, prospects, products, or services;
2. any assignment or transfer of voting control of you or your parent;
3. a sale or transfer of all or a substantial portion of your assets;
4. a joint venture, partnership or similar business arrangement whereby any person or entity not a party to the Merchant Agreement assumes any interest in your business;
5. irregular Card sales by you, excessive Chargebacks, noncompliance with any applicable data security standards, as determined by us, of any Payment Brand, or any other entity, or an actual or suspected data security breach, or any other circumstances which, in our sole discretion, may increase our exposure for your Chargebacks or otherwise present a financial or security risk to us or our other subscribers, customers or clients;
6. any of your conditions, covenants, obligations or representations or warranties in the MSA are breached in any material respect, or are incorrect in any material respect when made or deemed to be made;
7. you shall file a petition or have a petition filed by another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement for adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against you in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action for the purpose of authorizing any of the foregoing; or
8. a violation by you of any applicable law or Payment Brand Rule or our reasonable belief that termination of the MSA or suspension of payment services is necessary to comply with any law, including without limitation, the rules and regulations promulgated by the OFAC of the US Department of the Treasury, or your breach, as determined by us, of your requirement to comply with all applicable laws or Payment Brand Rules.

Then upon the occurrence of (i) any Event of Default specified in Sections 9.2(b), (c), (d), (f), (g) or (h), we may consider the Merchant Agreement to be terminated immediately, without notice, and all amounts payable hereunder shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by you; or (ii) any other Event of Default, the Merchant Agreement may be terminated by us giving not less than 10 days’ notice to you, and upon such notice all amounts payable hereunder shall be due and payable on demand. We may also terminate the Merchant Agreement immediately in whole or in part upon the request or demand of the Bank, Payment Brand, or Processor.

9.3 Effect of Termination. If the Merchant Agreement is terminated for any reason: (a) any pending transactions associated with your Account(s) may be cancelled; (b) you will continue to be bound to surviving provisions of the Merchant Agreement, as set forth below; (c) any licensed rights granted under the MSA for payment services shall end; (d) we reserve the right (but have no obligation) to delete all of your information and Account data stored on our servers after thirty (30) days from the effective date of the termination; and (e) we shall not be liable to you or any third-party for termination of access to the Payment Services or deletion of your information or Account data, or export of your information or Account data.

9.4 Survival. This Section 9, and Sections 3.3 (Agency Relationship), 3.4 (ABC Fees), 4.4 (Inspection), 4.6 (Account Authorizations), 4.9 Account Dormancy, 5.6 (Refunds and Returns), 5.9 (Chargebacks), Section 7 (Compliance & Security), Section 8 (Representations & Warranties), Section 10 (Liability & Risk Prevention) and Section 11 (General Provisions) will survive the termination of the Merchant Agreement. 

 

10. LIABILITY & RISK PREVENTION

10.1 Suspension Rights. We may suspend remits or the disbursement of funds to your account(s) for any period of time reasonably required for us to investigate suspicious or unusual activity (including deposits) on the Account(s). We will make reasonable efforts to notify you in advance of any suspension where practicable. We shall have no liability for any losses, either direct or indirect, which you may attribute to any suspension of Payment Services.

10.2 Merchant Reserve. If we believe there is a high level of risk associated with your use of Payment Services, we may require the establishment of a reserve (“Reserve”). Factors that we may consider in requiring a Reserve may include, without limitation, Chargebacks, returns, unfulfilled orders, or credit risk. We will hold funds in Reserve for as long as we deem necessary to mitigate risks associated with your use of Payment Services. If we establish a Reserve, we will provide you with notice specifying the terms of the Reserve, which we may change at any time upon further notice to you. You will remain liable for all obligations related to your use of the Payment Services even after the release of any Reserve. The Reserve may be established, raised, reduced or removed at any time by us in our sole discretion, including, without limitation prior to the commencement of the Payment Services and in connection with the termination of Payment Services. Funds in reserve will be held in an account controlled by us or the Bank (“Reserve Account”). You acknowledge that any interest earned on amounts in such Reserve Account is solely owed by ABC. We will reasonably determine the amount of funds in the Reserve Account based on the level of risk present. We may fund the Reserve in any of the following ways: (a) pulling funds directly from or debiting your Account(s); (b) withholding remits; and/or (c) requiring that you directly fund the Reserve through a separate source of funds. The Reserve Account will survive termination of the MSA. Typically, Reserve Accounts will be held for a period of ninety (90) days after the effective date of termination, at which time the balance, if any, is to be remitted to you.

10.3 Security Interest. The Merchant Agreement is a security agreement under the Uniform Commercial Code. Subject to any perfected prior interests, or the subsequent refinancing of the same for even or a greater amount, you grant us a security interest in and lien upon: (a) your Account(s) and all funds at any time in the Account(s), whatever the source of such funds, (b) the Reserve Account, and all funds at any time in the Reserve Account, whatever the source of such funds, (c) future Sales Draft associated with your business (including, without limitation, other businesses to which we have access and control over funds), (d) all of your rights relating to the Merchant Agreement including, without limitation, all rights to receive any payments or credits under the Merchant Agreement; and (e) all of your deposit accounts now owned or hereafter acquired and the proceeds of all of the foregoing (collectively, the “Secured Assets”). Upon request, you will execute one or more financing statements or other documents to evidence this security interest. You irrevocably authorize us to execute any financing statements or other documents necessary related to this security interest. You represent and warrant that no other party has a security interest in Secured Assets. These security interests and liens will secure all of your obligations under the Merchant Agreement and any other agreements between you and ABC, including, but not limited to, your obligation to pay any amounts due to us. With respect to such security interests and liens, we will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. You will obtain from us our written consent prior to granting a security interest of any kind in the Secured Assets to a third party.

10.4 Non-Exclusive Rights. The rights conferred upon us in this Section 10 are not intended to be exclusive of each other or of any other rights and remedies that we may have under the Merchant Agreement, the MSA, or at law or in equity. Rather, each and every right, at law or in equity, will be cumulative and concurrent and in addition to every other right.  

10.5 Authority and Interpleader. In the event you wish to change your agent dealing with ABC, or to change the method or manner of receiving Net Receipts, you must notify us of the change in a writing accompanied by evidence satisfactory to ABC of the corporate approval of such change and the authority of the new agent. In the event we cannot determine, in our sole and absolute discretion, the authority of a person purporting to be authorized to act on your behalf, and we may, in our sole and absolute discretion, refuse to take any action on your request until such time as satisfactory evidence is provided to ABC and/or commence an action for interpleader in a court of competent jurisdiction and we shall be released from any liability for the amount so interplead and you shall indemnify, defend and hold us harmless from and against any cost or expense incurred in connection with such action.

 

11. GENERAL PROVISIONS

11.1 Consent to Do Business Electronically. You consent to do business electronically, which means that you agree that all of our, Processor’s and Bank’s agreements and policies, including amendments thereto and documents referenced therein, as well as any notices, instructions, or any other communications regarding sales transactions and your agreements with us may be presented, delivered, stored, retrieved, signed, and transmitted electronically.

11.2 Modification. Unless otherwise provided for in the Merchant Agreement, we may modify these Payment Service Terms at any time by providing you with 30 days’ prior notice by: (a) sending you written notice of such modification, or (b) posting such modification to our website. We may amend these Payment Service Terms upon less than 30 days’ prior notice if we reasonably determine immediate modification is required by requirements of law, Payment Brand Rules or any adverse change in your financial condition. Amendments submitted by you will bind us only if in writing and approved and signed by an authorized officer(s) for ABC.

11.3 Entire Agreement. All other provisions from the MSA, including, without limitation, provisions related to Confidentiality, Governing Law, Dispute Resolution, Indemnification, Limited Warranties and Limitations of Liability, shall carry over to the Merchant Agreement and be incorporate by reference herein, with any direct conflict in terms being resolved in favor of the Merchant Agreement. The Merchant Agreement, including the MAA and these Payment Service Terms, and any supplementary documents indicated herein, express the entire understanding of the parties with respect to the payment service subject matter and except as provided herein, may be modified only in writing executed by the parties. 

11.4 Severability. If any one or more of the provisions contained in the Merchant Agreement shall in any jurisdiction be held or determined by a court having jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be deemed modified so as to be enforceable to the maximum extent permitted by law consistent with the intent of the parties as herein expressed, and such invalidity shall not affect the remaining provisions of the Merchant Agreement which shall continue in full force and effect.

11.5 Headings; Interpretation. Headings are used in the Merchant Agreement for reference only and will not be considered when interpreting the document as a whole. Unless the context requires otherwise, words in the singular shall include the plural, “and” and include “or,” and vice-versa, and reference to one gender shall include reference to both genders. The parties agree that the Merchant Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Merchant Agreement.