Res 1992-132 - Laserfiche WebLink

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. 998 against the Sales Drafts originated by Merchant, Merchant agrees that at any time and from time to time either Financial Institution or Bank may designate a minimum baJance of col'leC1ed turds that Merchant must maintain in the Account in order to protect Rnancial Institution and Bank against the risk of chargebacks. Merchant's failure to maintain such minimum balance shall cause this ~reement to terminate without notice to Merchant. E. All Sales Drafts To ~ Originated By Merchant. ALL SALES DRAFTS DELIVERED 10 FINANCIAL INSTITUTION OR BANK BY MERCHANT FOR PROCESSING AND CREDIT SHALL HAVE BEEN ORIGINATED BY MERCHANT IN A BONA FIDE TRANSACTION IN WHICH MERCHANT HAS SOLD OR LEASED GOODS OR SERVICES DIRECTLY TO CUSTOMERS PRESENTING THEIR CARDS FOR USE IN PAYMENT THEREFOR. MERCHANT SHALL NOT DELIVER OR SEEK TO OBTAIN CREDIT FOR ANY SALES DRAFTS THAT WERE ORIGINATED, DRAWN OR CREATED BY ANY PERSON OR ENTITY OTHER THAN MERCHANT. F. Customer Credit and Refunds. Merchant shall make no cash refunds to purchasers or lessees on Card sales or leases, If any price adjustment is allO\^led or any goods are returned or the purchaser or lessee is not the person whose name appears as Cardholder, Merchant will legibly complete, date and sign a credit memorandum in the form provided by Rnancial Institution for Merchant's use, including the date and a description of the goods or services and the transaction, and within three (3) business days thereafter Merchant shall deliver such credit memorandum to Bank for tho account of Financial Institution together with a cash remittance in the amount of the credit memorandum. Merchant shall give a true completed I of such credit memorandum to cardholder if Cardholder is present at Merchant's business premises when the credit is given; otherwise, Merchant I immediately mail such copy to Cardholder. Credit memoranda not accompanied öy cash remittances shall be .debited against the account. ::hant shall not receive money from a Cardholder and subsequently deposit a credit memorandum to effect a deposit thereof to the Cardholder's account. G. Chargebacks. If any Sales Draft for which Financial Institution or bank has arranged for credit to Merchant's Account (i) fails in any manner to comply with the applicable terms and conditions oi this Agreement or with the applicable rules and regulations of Visa or MasterCard, or if (ii) any such Sales Draft is the subject of a chargeback to Financial Institution or Bank by the bank or other financial institution issuing the Card on which the Sales Draft is drawn, or if (iii) there is any dispute, claim, counterclaim, defense, or setoff asserted by a Cardholder against Merchant respecting any goods or services purchased or leased by use of a Card, whether or not said assertion is valid, then Financial Institution or Bank may debit the Account in an amount equal to 100% of the amount previously credited for the subject Sales Draft, and may credit such amount to Financial Institution, all without notice to or consent by Merchant. As an alternative, Financial Institution or Bank may demand (either orally or in writing) that Merchant pay to Bank 100% of the amount that was previously credited for the subject Sales Draft" and Merchant shall make such payment within one (1) business day. After Merchant has received notice from Financial Institution or Bank of a chargeback, and has deposited funds into the Account in the amount previously credited for the subject Sales Draft, then Merchant may resubmit such Sales Draft to Financial Institution or Bank for a second presentation into the appropriate interbank clearing system, provided that (i) such resubmissión is in compliance witt-& the applicable MasterCard or Visa rules, and (ii) no credit shall be provided to Merchant for such Sales Draft until the time for a second chargeback has expired. H. Endorsement of Sales Dmfts. Merchant's delivery of any Sales Draft to Financial Institution or Bank shall be deemed an endorsement thereof by Merchant to Financial Institution and Bank, and Financial Institution and Bank are hereby authorized to place Merchant's endorsement thereon at any time, in order to obtain credit therefor. I. Representations and Warranties. As to each Sales Draft delivered to Bank or to Financial Institution, and as to the transaction evidenced thereby, Merchant represents and warrants to Fìnanciallnstitution and to Bank that (i) the Sales Draft represents a bona fide sale or lease of goods or services or both, originated by Merchant in compliance with Section 2.E hereof, (ii) the transaction and the execution of the Sales Draft comply with all applicable terms and conditions set out in this Agreement, and with all applicable MasterCard or Visa rules, including without limitation r-- 'isions as to customer identification, (iii) there has been proper application of Floor Limits as referenced in Section 1.E hereof, (iv) the transaction i compliance with all applicable laws, ordinances, and regulations, (v) the indebtedness represented by the Sales Draft has not been pledged ¡ ollateral for payment of any indebtedness Or obligation of Merchant or 9f any other person, and (vi) Merchant has no knowledge or notice ( formation that would lead it to believe that the enforceability or collectibility of the subject Sales Draft is in any manner impaired. In addition to me preceding, Merchant expressly represents and warrants to Financia! Institution and to Bank that the signature on each Sales Draft for any transaction without a Card, such as in a mail, telephone or pre-authorized transaction. is that of the proper Cardholder or that of an authorized signer for the proper Cardholder, and that the information on the Sales Draft, inciuding without limitation tne Cardholder's account number and Card expiration date, is accurate and correct. J. Waiver. Except as specifically set forth in this Agreement. Merchant hereby waives demand for payment, and any other demand or notice in connection with any Sales Draft, Card sale or lease, or credit memorandum. K. Indemnity. Merchant agrees to and hereby does indemnify and hold Financial Institution, Bank. MasterCard and Visa harmless from and against any and all losses, liabilities, claims by Cardholders or other third parties, and damages of any and every kind (including without limitation reasonable attorneys' fees) to which Financiallnstitutioo, Bank, MasterCard or Visa may be subjected arising out of or attributed. directly or indirectly, to: ~) any non-compliance by Merchant with this Agreement or with applicable MasterCard or Visa rules: (ii) any return of goods, price adjustment or other dispute with or claim by a Cardholder (whether or not such Cardholder's claim or demand is valid), or any credit memorandum, or any Sales Draft submitted to Rnancial Institution or Bank and differing from the original; or (iii) any chargeback that arises from the transactions that are the subject of this ~reement. L Due Care; Urnlfed LJability. Financial Institution will use due care in its performance under its Agreement and it will, at its ONn expense, correct any data in which (and to the extent that) errors have been caused by Financial Institution's personnel, or by malfunctions of software or machines controlled by Rnanciallnstitution. However, the expense to Financial Institution of correcting such data shall constitute Financial Institution's only responsibility in connection with such errors or in connection with any other performance or nonperformance by Financial Institution under this Agreement. Under no circumstances shall the financial responsibility of Financiallnstitutíon for any failure of performance by Financiallnstitutiön under this ~reement exceed the fees or charges paid to Financial Institution for the transaction or activity that is or was the subject of the alleged failure of performançe. \-169 (REV 9/91)