ESQUIRE TERMS AND CONDITIONS
Terms and Conditions
ESQUIRE TERMS AND CONDITIONS
In consideration of the mutual promises and covenants contained in this Merchant Agreement (“Agreement”), and the agreement of Merchant to participate in the card processing services program established by Bank, the parties agree as follows:
1. Parties. The parties to this Agreement are ESQUIRE BANK, a federally chartered bank whose address is 100 Jericho Quadrangle, Suite 100, Jericho, New York 11753 (“Bank”) or EVOLVE BANK & TRUST, a federally chartered bank whose address is 6070 Poplar Avenue, Ste. 200, Memphis, TN 38119 (“Bank”), and Tot Payments, LLC, dba: Netevia, a Florida Limited Liability Corporation, whose address is 3363 NE 163rd Street, Suite 606, North Miami Beach, FL 33160 (“ISO”), and the Merchant set forth on the Merchant Application form to which this Agreement is attached (“Merchant”).
2. Definitions. For the purposes of this Agreement and the Schedules referred to herein, the following definitions apply unless the context otherwise requires:
“Address Verification” means a service that allows Merchant to verify the home address of Cardholders with the relevant Issuer.
“Applicable Law” means: (i) all applicable federal, state and local laws, rules and regulations; and (ii) the Rules.
“Association(s)” means VISA U.S.A., Inc. (“Visa”), MasterCard International Incorporated (“MasterCard”) and Discover Financial Services LLC (“Discover”).
“Authorization” means an affirmative response, by or on behalf of an Issuer to a request to effect a Transaction, that a Transaction is within the relevant Cardholder’s available credit limit and that the Cardholder has not reported the Card lost or stolen. All Transactions requiring Authorization by the Associations must be authorized.
“Authorization Center” means the facility or facilities designated from time to time by Bank or ISO to which Merchant shall submit all requests for Authorization.
“Business Day” means any day other than: (i) a Saturday or Sunday; or (ii) a day on which banking institutions in New York are authorized by law or executive order to be closed (and on which Bank is in fact closed).
“Card(s)” means either a Visa, MasterCard or Discover credit card, debit card (or other similar card that requires a PIN for identification purposes), or pre–paid, stored–value or gift card.
“Cardholder” means a person authorized to use a Card.
“Chargeback” means a Transaction that Bank returns to Merchant pursuant to this Agreement.
“Forced Sale” means a sales Transaction processed without an approved electronic Authorization number being obtained for the full amount of the sales Transaction at the time
the Transaction is processed.
“Full Recourse Transactions” means mail orders, telephone orders, e–commerce (Internet) orders, Pre–Authorized Recurring Order Transactions, and other “card not present” sales.
“Issuer” means a member of an Association that enters into a contractual relationship with a Cardholder for the issuance of one or more Cards.
“Merchant Statement” means an itemized monthly statement of all charges and credits to the Operating Account (as that term is defined in Section 5 of this Agreement).
“Monthly Chargeback Violation,” for any given calendar month, means that more than five Chargebacks have been processed in that month and that the Transaction Chargeback Ratio for that month is equal to or greater than 1%.
“Mid–Qualified Transactions” means any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Associations
“Non–Qualified Transactions” means: (i) any Transaction submitted for processing more than 48 hours past the time the Authorization occurred; (ii) any Transaction missing required data; and (iii) any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Associations.
“Normal Transaction” means a Transaction in which the Card is swiped through or dipped in a terminal, register or other device, capturing the Card information encoded on the Card’s magnetic strip.
“Pre–Authorized Recurring Order Transaction” means a Transaction that has been preauthorized by the Cardholder and for which the goods or services are to be delivered or performed in the future by Merchant without having to obtain approval from the Cardholder each time.
“Qualified Transactions” means any Transaction categorized as such by the processor designated by Bank to settle Transactions with the Associations.
“Rules” means all rules, regulations, by–laws, standards and procedures adopted and/or amended from time to time by the Associations (including, without limitation, the Payment Card Industry Data Security Standard), Bank and each relevant Issuer.
“Services” means the transaction processing services described on the attached Schedule A, as the same may be amended from time to time by Bank, in its sole discretion.
“Transaction” means the acceptance of a Card or information embossed on the Card for payment for goods sold and/or leased or services provided to Cardholders by Merchant and receipt of payment from Bank, whether the Transaction is approved, declined, or processed as a Forced Sale. The term “Transaction” also includes credits, errors, returns and adjustments.
“Transaction Chargeback Ratio,” for any given calendar month, means the number of Chargebacks processed in that month divided by the total number of Transactions processed in that month.
3. Services Provided to Merchant. During the term of this Agreement, subject to the terms and conditions of this Agreement: (i) ISO shall provide technical documentation as needed, and technical support and customer support (including, without limitation, Authorization, settlement and Chargeback processing and reporting), twenty–four hours each day, seven days each week, in order to allow Merchant to accept and process Transactions; and (ii) Bank shall provide the Services to Merchant.
4. Term. This Agreement shall become effective when all parties sign the Merchant Application form to which this Agreement is attached (or in connection with which this Agreement is provided) and, unless sooner terminated, shall remain in effect for a term of three (3) years. This Agreement shall renew automatically for successive terms of three (3) years each, unless any party provides written notice of termination to the other parties at least 90 days prior to the end of the then–current term. All existing obligations, warranties, indemnities and agreements with respect to Transactions entered into before such termination shall remain in full force and effect, and, regardless of any such termination, Merchant shall remain liable for all obligations to Cardholders and Bank that are incurred while this Agreement is in effect.
5. Merchant Operating Account. Prior to accepting any Cards, Merchant shall establish a demand deposit account at Bank, or at a financial institution approved by Bank (the “Operating Account”), through which fees, charges and credits due to Merchant in accordance with this Agreement may be processed. Merchant authorizes Bank to debit all amounts Merchant owes Bank hereunder or any other agreement entered into between Merchant and Bank from the Operating Account, whether maintained at Bank or another financial institution, at times deemed appropriate by Bank, through the ACH Banking Network or by a manual debit of the Operating Account. Merchant waives any and all claims for loss or damage arising out of any such charges or debits to the Operating Account.
6. Reserve Account. Upon, or at any time after, execution of this Agreement, Bank may establish a reserve account at Bank (the “Reserve Account”) in such amount as Bank from time to time may determine in its sole discretion. Bank may fund the Reserve Account by deducting amounts from payments due to Merchant, by effecting a charge against Merchant’s Operating Account or against any of Merchant’s accounts at Bank, or by demanding payment from Merchant (which payment Merchant shall make within ten (10) days after receipt of any such demand). The Reserve Account will be maintained for a minimum of nine months after the date on which this Agreement terminates or until such time as Bank determines that the release of the funds to Merchant is prudent, in the best interest of Bank, and commercially reasonable, and that Merchant’s account with Bank under this Agreement and any other agreement entered into between Merchant and Bank is fully resolved. Merchant and ISO acknowledge and agree that only Bank, and not ISO, may authorize or effect any release of funds from the Reserve Account. Bank may withdraw funds from the Reserve Account at any time to offset any indebtedness of Merchant to Bank that may arise out of or relate to the obligations of Merchant under this agreement (including, but not limited to, Chargebacks and fees) or to offset any other indebtedness of Merchant to Bank under any other agreement entered into between Merchant and Bank. Upon expiration of this nine–month period, any balance remaining in the Reserve Account will be paid to Merchant. Bank will inform Merchant in writing of any charges debited to the Reserve Account during this nine–month period. Notwithstanding the foregoing, Bank, in its sole discretion, may release funds from the Reserve Account prior to the expiration of such nine–month period based on its assessment of the risks associated with effecting such release.
7. Fees. Merchant shall pay to Bank all fees specified on Schedule A, as amended by Bank from time to time. For each Transaction, Bank will charge Merchant as follows:
(a) An amount (“Merchant Discount Fees”) equal to a specified percentage of the total cash price of each sales and cash withdrawal Transaction (“Merchant Discount Rate”);
(b) A specified amount per Transaction (“Transaction Fee”); and
(c) A specified amount per Authorization (“Authorization Fee”).
The Merchant Discount Rate, Authorization Fees and Transaction Fees are set forth on Schedule A. Different Merchant Discount Rates may apply to Qualified, Mid–Qualified and Non–Qualified Transactions, as shown on Schedule A. Merchant agrees that Bank will, and authorizes Bank to, deduct Merchant Discount Fees from the Operating Account or Reserve Account on a daily basis unless a monthly basis is specified on Schedule A. Merchant also agrees to pay to Bank the amount of any fees, charges or penalties assessed against Bank by any Association or Issuer for Merchant’s violation of any Applicable Law. Merchant shall pay Bank for any other services provided to Merchant by Bank and for all other fees shown on Schedule A, including, but not limited to, monthly minimum fees, Chargeback fees and customer service fees.
8. Billing. All amounts Merchant owes to Bank, for any reason, may be charged to the Operating Account or Reserve Account, recouped by adjustment to any credits due to Merchant, or set off against any account or property Bank holds for or on behalf of Merchant.
9. Security Interest. As security for the performance by Merchant of all of its obligations under this Agreement, Merchant hereby grants to Bank a security interest in: (i) the funds held in the Operating Account and in the Reserve Account; and (ii) any inventory with respect to which a Transaction has occurred but has not yet been fulfilled. Merchant will execute and deliver to Bank such documents, in form satisfactory to Bank, as Bank may reasonably request in order to perfect Bank’s security interest in the Operating Account, Reserve Account and such inventory, and will pay all costs and expenses associated with filing the same or this Agreement in all public filing offices, where filing is deemed by Bank to be necessary or desirable. Bank is authorized to file financing statements relating to the Operating Account, the Reserve Account and such inventory without ISO where authorized
by law. Merchant appoints Bank as its attorney–in–fact to execute such documents as are necessary or desirable to accomplish perfection of any security interests. This appointment is coupled with an interest and shall be irrevocable as long as Merchant owes any amount to Bank.
10. Processing Transactions.
(a) Merchant shall obtain Authorizations and process Transactions using such equipment and software as may be approved from time to time by Bank, in its sole discretion (the “Equipment”). Merchant shall validate Cards and Cardholders in face–to–face transactions as required by Applicable Law.
(b) Merchant shall obtain Authorizations for Transactions in a manner required by Applicable Law and in the manner, and following the processes and procedures, determined from time to time by Bank, in its sole discretion, and communicated to Merchant by either Bank or ISO.
(c) Merchant shall not submit a Transaction to Bank (electronically or otherwise) until Merchant has performed its obligations to the Cardholder in connection with the Transaction or obtained Cardholder’s consent for a Pre–Authorized Recurring Order Transaction.
(d) Merchant shall not transmit any Transaction to Bank that Merchant knows or should have known to be illegal, fraudulent or not authorized by the Cardholder.
(e) Merchant shall not process a Transaction that does not result from an act between a Cardholder and Merchant.
(f) Merchant shall not request or use any Card number for any purpose other than as payment for its goods or services.
(g) Merchant may transmit a Transaction that effects a prepayment of services or full prepayment of custom–ordered merchandise, manufactured to a Cardholder’s specifications,
if Merchant advises Cardholder of the immediate billing at the time of the Transaction and within time limits established by the Associations.
11. Prohibited Transactions. Merchant shall not do any of the following:
(a) Establish a minimum on debit cards or greater than $10.00 on credit cards or a maximum dollar Transaction amount;
(b) Obtain multiple Authorizations for amounts less than the total sale amount;
(c) Obtain Authorization for the purpose of setting aside the Cardholder’s credit line for use in future sales;
(d) Extend credit for or defer the time of payment of the total cash price in any Transaction;
(e) Honor a Card except in a Transaction where a total cash price is due and payable;
(f) Make any special charge to or extract any special agreement or security from any Cardholder in connection with any Transaction;
(g) Transmit or accept payment for any Transaction that was not originated directly between Merchant and a Cardholder for the sale or lease of goods or the performance of
services of the type indicated in the Merchant Application form to which this Agreement is attached;
(h) Honor or accept a Card as payment for any legal services or expenses arising out of or related to: (i) any domestic relations matter where such services or expenses are furnished to a person whose name is not embossed on a Card; or (ii) any bankruptcy, insolvency, compromise, composition or other process affecting Cardholder’s creditors;
(i) Use Merchant’s own Card, or one to which Merchant has access, to process a Transaction for the purpose of obtaining credit for Merchant’s own benefit;
(j) Re–process any Transaction that was previously charged back to Bank and subsequently returned to Merchant, irrespective of Cardholder approval;
(k) Initiate a Transaction credit without a preceding debit at least equal to the credit;
(l) Initiate a Transaction credit without a balance in the Operating Account at least equal to the credit;
(m) Use the Equipment or any data received thereon for any other purpose other than for determining whether or not Merchant should accept checks or Cards in connection with a current sale or lease of goods or services;
(n) Use the Equipment or any data received thereon for credit inquiry purposes or any other purpose not authorized by this Agreement;
(o) Draw or convey any inference concerning a person’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living when any Card or check is processed as non–accepted;
(p) Disclose any information obtained through the Equipment to any person except for necessary disclosures to affected Cardholders, Bank and/or the Issuer;
(q) Disburse funds in the form of travelers cheques, if the sole purpose is to allow the Cardholder to make a cash purchase of goods or services from Merchant;
(r) Disburse funds in the form of cash;
(s) Accept a Card to collect or refinance an existing debt (whether originally owed to Merchant or otherwise) that is considered uncollectible (for example, payments to a collection agency or attempts to recover funds for a dishonored check) except to the extent specifically permitted by Applicable Law;
(t) Issue a Transaction credit in respect of goods or services acquired in a cash transaction which are returned;
(u) Make any cash refund to a Cardholder who has made a purchase with a credit Card (all Transaction credits shall be issued to the same credit Card account number used in the sale);
(v) Require a Cardholder to complete a postcard or similar device that includes the Cardholder’s account number, Card expiration date, signature or any other Card account data in plain view when mailed;
(w) Accept a Card for the purchase of Scrip (as defined by applicable VISA regulations), except to the extent specifically permitted by Applicable Law;
(x) Accept any payment directly from a Cardholder for previous Card charges incurred and processed by Merchant;
(y) Require, through an increase in price or otherwise, any Cardholder to pay any surcharge in connection with any Transaction or to pay any part of any charge imposed on Merchant by Bank except, in either case, as expressly permitted by, and under terms and conditions that comply in full with, Applicable Law;
(z) Provide cash to a Visa cardholder unless Merchant is either (i) participating in Visa Cash–Back Services or (ii) a hotel or cruise line;
(aa) Cause any Cardholder to waive its right to dispute a Transaction;
(bb) Request the Card Verification Value 2 data (as defined by Visa) on any paper order form;
(cc) Request a Cardholder account number for any purpose that is not related to payment for goods or services; or
(dd) Add any tax to Transactions, unless applicable law expressly requires that a merchant be permitted to impose a tax, and only if such tax is included in the Transaction amount and not collected separately..
12. Prohibition of Furnishing Account Information; Use of Third Parties. Merchant shall not, without the Cardholder’s consent, sell, purchase, provide or exchange any Card information in the form of Transaction documents, carbon copies of imprinted Transaction documents, mailing lists, tapes, journal rolls or other media obtained through the use of a Card to any third party. Merchant may use third parties that do not have a direct agreement with Bank as Merchant’s agent for the direct delivery of Transactions for clearing and settlement if:
(a) Merchant advises Bank that it will use a third–party processor in this capacity, identifying the third party so selected by Merchant;
(b) Merchant agrees that Bank will reimburse Merchant only for the Visa Transactions delivered by that third–party processor to VisaNet; and
(c) Merchant assumes responsibility for any failure by its third–party processor to comply with Applicable Law.
Merchant shall notify Bank of the identity of any third party performing services to Merchant in connection with which such third party has access to any Card information.
13. Daily Reconciliation of Transactions.
(a) Electronically Transmitted Transactions. Bank shall control and disburse all Transaction–related settlement funds to Merchant. Transactions with respect to which Bank receives payment from or through the Associations will be settled on a daily basis, and, except as otherwise expressly provided or permitted pursuant to the terms of this Agreement, Bank shall deliver payment to Merchant in connection with such Transactions by effecting a credit to the Operating Account equal to the reconciled and paid summary Transaction total of all of Merchant’s total paid summary Transactions since the previous credit. Notwithstanding the foregoing, Bank may, in its sole discretion, effect a credit to the Operating Account in connection with any Transaction prior to the point in time Bank receives payment in connection therewith from or through the Associations. In either case, Bank may, if necessary or appropriate, reduce any credit made to the Operating Account by, and/or Bank may require that Merchant pay to Bank an amount equal to: (i) the sum of all Cardholder charges denied, refused or charged back; (ii) all refunds processed on account of Cardholders during said time period; (iii) the amounts, fees and charges, including (but not limited to) Chargebacks, Merchant owes Bank hereunder or under any other agreement entered into between Bank and Merchant; (iv) all taxes, penalties, charges, fees and other items incurred by Bank that are reimbursable pursuant to this Agreement; (v) all applicable rates, fees and charges described on Schedule A; (vi) any amount Bank previously credited to the Operating Account that Bank determines, in good faith, was incorrectly so credited; and (vii) any amount Bank determines, in its sole discretion, represents unacceptable risk to the relevant Cardholder or Bank. Any application of funds associated with the settlement of Transactions that differs from the foregoing must be agreed to, in writing, by Bank and Merchant and may not, in any respect, violate Applicable Law.
(b) Reconciliation of Transactions. Merchant shall reconcile each settled Transaction within fifteen (15) days after the date on which such Transaction is submitted to Bank for payment, and shall notify Bank and ISO immediately of any discrepancies or errors Merchant notes as a result of such reconciliation. Neither Bank nor ISO shall have any responsibility or liability for Transaction–related errors or omissions that are brought to their attention more than thirty (30) days after the date on which the Transaction to which such error or omission relates is first presented to Bank for settlement.
(c) Provisional Credit. Any credits to the Operating Account are provisional only and subject to revocation by Bank until such time that the Transaction is final and no longer subject to Chargeback by the Issuer, Cardholder or Associations. Bank may withhold payment for a Transaction to Merchant, for any reason, until such time as the Transaction has been verified as legitimate by the relevant Issuer, or Bank receives adequate supporting documentation from Merchant to authenticate the Transaction and mitigate Chargeback risk.
14. Adjustments and Returns. Merchant will maintain a fair exchange and return policy and make adjustments with respect to goods and services sold and/or leased to its customers whenever appropriate. If Merchant limits its acceptance of returned merchandise, or if Merchant is an Electronic Commerce Merchant, Merchant will ensure that its return policy are clearly set forth on the Transaction receipt or on Merchant’s website, as required by Applicable Law. If goods are returned, or services are terminated or canceled, or any price is adjusted, Merchant will prepare and transmit a credit or return Transaction, either electronically or by paper, for the amount of the adjustment as a deduction from the total amount of Transactions transmitted that day. If the amount of credit or return Transactions exceeds the amount of sales Transactions, Merchant shall pay the excess to Bank. Merchant shall make no cash refunds on credit Transactions and shall handle all credit adjustments as provided in this Section 14. If no refund or return will be given, Merchant must advise Cardholder in writing, at the time of the Transaction, that the sale is a “final sale” and “no returns” are permitted. Merchant must advise Cardholder in writing of any policy of Merchant that provides for no–cash refunds and in–store credit only. Merchant shall follow Association reservation/no–show policies, and shall notify Cardholders in writing of this policy on all advance reservations. Merchant also shall notify Cardholders at the time of the reservation of the exact number of days required for reservation deposit refunds.
15. Chargebacks. The acceptance by Bank of any Transaction processed in accordance with the terms of this Agreement shall be without recourse to Merchant, except for:
(i) Full Recourse Transactions; (ii) as otherwise indicated in this Agreement; and (iii) under any of the following circumstances:
(a) No specific prior Authorization for the Transaction was obtained from the Authorization Center, the approval number does not appear in the electronic transmittal that is maintained by Bank, or the Transaction was submitted to the Bank or ISO thirty (30) days or more after the date on which the goods and/or services to which the Transaction relates were
purchased or leased by the relevant Cardholder;
(b) The Transaction was based on a pre–authorization form, the Card on which the Authorization was based was canceled and Merchant was so notified prior to the Transaction;
(c) The Card giving rise to the Transaction was canceled and prior to, or at the time of, the Transaction, and Merchant received notice of the cancellation through the electronic
terminal, in writing or otherwise;
(d) The Card expired prior to the date of the Transaction or the date of the Transaction was prior to the validation date, if any, indicated on the Card;
(e) The Transaction information required by this Agreement was not submitted to Bank, or the procedures required by this Agreement to be followed in connection with processing a Transaction were not followed;
(f) Bank or Issuer receives a complaint from or on behalf of a Cardholder stating that there is an unresolved dispute or defense to a charge (whether or not valid) between Merchant and Cardholder;
(g) The Cardholder makes a written complaint to Bank or Issuer that the Cardholder did not make or authorize the Transaction;
(h) A setoff or counterclaim of any kind exists in favor of any Cardholder against Merchant that may be asserted in defense of an action to enforce payment against the Cardholder in the Transaction;
(i) The Transaction was made at or by a merchant other than Merchant;
(j) The Transaction otherwise violates the terms of this Agreement or any Applicable Law;
(k) A Transaction is charged back by an Issuer; or
(l) Any representation or warranty made by Merchant in connection with the Transaction is false or inaccurate in any respect.
In any such case, Bank shall not be obligated to accept a Transaction for credit to the Operating Account. If Bank has credited the Operating Account or Reserve Account for such a Transaction, Bank may return the Transaction to the Merchant, and Merchant shall pay Bank the amount of the Transaction. Merchant agrees that it is solely responsible for all Chargebacks, and that Bank, without prior notice to Merchant, may: (i) charge the amount of the Transaction to the Operating Account or Reserve Account; (ii) recoup the amount of the Transaction by adjustment of the credits due to Merchant; and/or (iii) set off the amount of the Transaction against any account or property Bank holds for or on behalf of Merchant. If Merchant disagrees with Bank’s decision to charge back a Transaction, Merchant must so notify Bank in writing within 10 days of the Chargeback, and provide documentation that the dispute has been resolved to Cardholder’s satisfaction or proof that a credit has been issued. Without limiting the generality of any other provision of this Agreement, if Bank or ISO, if ISO has indemnified Bank, takes legal action against Merchant for any Chargebacks or any amounts due Bank or ISO hereunder, Merchant shall pay the costs and attorneys’ fees incurred by Bank and/or ISO, whether suit is commenced or not.
In addition to any other remedy available to Bank, upon the occurrence of a Monthly Chargeback Violation, Merchant must pay to Bank a fee that is calculated as follows (where X in the table below is the Transaction Chargeback Ratio for the relevant calendar month and Y is the number of Chargebacks processed during the relevant calendar month):
Y 1.0% ≤X≤ 1.5% 1.5%
Ascentium Capital Agreement
This Equipment Lease Agreement (“Agreement”) is being entered into by and between Ascentium Capital LLC and the Lessee identified in the signature panel of this Agreement. In this Agreement, the words “Lessor” “we”, “our” and “us” refer to Ascentium Capital LLC and its successors and assigns and the words “Lessee” “you” and “your” refer to Lessee and its successors and permitted assigns. Lessee hereby authorizes us or our designees, to withdraw any amounts including any and all taxes, fees and charges, now due or hereinafter imposed, owed by Lessee in conjunction with this Agreement by initiating debit entries to Lessee's account at the bank named above, or such other bank as the Lessee may from time to time use (hereinafter “Bank”), in which case Lessee shall deliver prior written notice thereof and such other information regarding the other bank account as Lessor may request. In the event of default of Lessee’s obligations hereunder, Lessee authorizes debit of its account for the full amount due under this Agreement. Further, Lessee authorizes Bank to accept and to charge any debit entries initiated by Lessor to Lessee’s account. Any incorrect charge will be corrected upon notification to us, by either a credit or debit to Lessee’s account. In the event that Lessor withdraws funds erroneously from Lessee’s account, Lessee authorizes Lessor to credit Lessee’s account for any such amount. The authorizations in this paragraph are to remain in full force and effect until Lessor and Bank have received written notice from Lessee of its termination in such time and in such manner as to afford Lessor and Bank a reasonable opportunity to act. Lessee acknowledges that if Lessee revokes such authorization during the term of the Lease in violation hereof, Lessee shall be in default under this Agreement without the requirement of any prior notice from Lessor as a precondition for such default.
1. Equipment. We agree to lease to you, and you agree to lease from us the equipment listed above on this Agreement or such other comparable equipment we provide you (the “Equipment”), according to the terms and conditions of this Agreement.
2. Effective Date, Term and Interim Rent. (a) This Agreement becomes effective on the date any piece of Equipment is delivered to you (the “Delivery Date”). This Agreement remains in effect until all of your obligations and all of our obligations under it have been satisfied. (b) This Agreement (i) has a lease term (the “Lease Term”) which begins on a date designated by us after receipt of all required documentation in a form satisfactory to us(the “Commencement Date”) and continues for the number of months indicated on the Agreement and (ii) may have one or more renewal terms(“Renewal Term”). The Lease Term, any Renewal Term (if any) and the Interim Term below are collectively referred to as the “Term”. (c) You agree to pay an interim lease payment in the amount of one-thirtieth (1/30th) of the monthly lease charge for each day from and including the Delivery Date to but excluding the Commencement Date (the “Interim Term”). (d) IN ADDITION TO ENTERING INTO THIS AGREEMENT, YOU MAY BE ENTERING INTO AN AGREEMENT (A “MERCHANT AGREEMENT”) WITH A THIRD-PARTY SERVICE PROVIDER FOR MERCHANT PROCESSING SERVICES. THIS AGREEMENT IS SEPARATE AND DISTINCT FROM THE MERCHANT AGREEMENT. WE ARE NOT AN AGENT OF SUCH SERVICE PROVIDER, NOR IS SUCH SERVICE PROVIDER AN AGENT FOR US. UPON TERMINATION OF YOUR MERCHANT AGREEMENT, YOU ACKNOWLEDGE THAT YOU MAY NOTBE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE LEASED UNDER THIS AGREEMENT WITH ANOTHER SERVICE PROVIDER. YOU ACKNOWLEDGE THAT WE DID NOT MANUFACTURE THE EQUIPMENT NOR DID WE SELECT IT FOR YOU. WE ARE LEASING THE EQUIPMENT AND/OR SOFTWARE TO YOU UNDER THIS AGREEMENT “AS IS, WHERE IS” AND WITH ALLFAULTS. ALL WARRANTIES EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON ARE HEREBY DISCLAIMED INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, QUIET ENJOYMENT, OR INFRINGEMENT. THIS AGREEMENT IS NON-CANCELABLE FOR THE FULL TERM INDICATED. YOUR OBLIGATION TO PAY ALL PAYMENTS AND OTHER AMOUNTS, AND TO PERFORM YOUR OTHER OBLIGATIONS, UNDER THIS AGREEMENT IS ABSOLUTE AND UNCONDITIONAL AND WILL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF, DEFENSE, OR COUNTERCLAIM FOR ANY REASON WHATSOEVER, INCLUDING ANY DEFECT IN THE EQUIPMENT AND/OR SOFTWARE, THE TERMINATION OF THE MERCHANT AGREEMENT OR THE FAILURE OF ANY PARTY TO PROVIDE SERVICES RELATED TO THE EQUIPMENT AND/OR THE SOFTWARE TO YOU.
3. Site Preparation. The Equipment will be delivered to a site designated by you. You will prepare the installation site(s) for the Equipment, including but not limited to the power supply circuits and phone, or other communication lines, in conformance with the manufacturer’s and our specifications and will make the site(s) available to us by the confirmed shipping date.
4. Payment of Amounts Due. (a) The first monthly lease charge, together with the interim lease payment for the Interim Term, is due and payable on the Commencement Date and all subsequent monthly payments are due on the same day of each successive month thereafter of the Term for each piece of Equipment. You agree to pay all assessed costs for delivery and installation of Equipment. (b) In addition to the monthly lease charge, you shall pay, or reimburse us for, amounts equal to any taxes or assessments on or arising out of this Agreement or the Equipment, and related supplies or any services, use or activities hereunder, including without limitation, state and local sales, use, property, privilege and excise tax, exclusive, however, of taxes based on our net income. An annual tax handling charge of $50 will be assessed to cover administrative costs. (c) Your lease payments will be due despite dissatisfaction with the Equipment for any reason. (d) Whenever any payment is not made by you in full when due, you shall pay us as a late charge, an amount equal to ten percent of the amount due but no less than $10.00, but in no event more than the maximum amount permitted by law. You shall also pay to us an administrative charge of $10.00 for any debit we attempt to make against your bank account that is rejected, but in no event more than the maximum amount permitted by law. (e) In the event your account is placed into collections for past due amounts due under this Agreement, you agree to pay us a collection expense charge of $25.00 for each payment requiring a collection effort, but in no event more than the maximum amount permitted by law. Whenever Lessor must generate an invoice on a past due account a charge of $15.00 for each monthly invoice shall be added to the balance. ACMF_ST_20191209
5. Use and Return of Equipment; Insurance. (a) You shall cause the Equipment to be operated by competent and qualified personnel in accordance with any operating instructions furnished by the manufacturer. You shall maintain the Equipment in good operating condition and protect it from deterioration, normal wear and tear excepted. (b) You shall not permit any physical alteration or modification of the Equipment, or change the installation site of the Equipment, without our prior written consent. (c) You shall not create, incur, assume or allow to exist any liens or encumbrances on, or part with possession of, or sublease, the Equipment without our prior written consent. (d) You shall comply with all governmental laws, rules and regulations relating to the use of the Equipment. You are also responsible for obtaining all permits required to operate the Equipment at your facility. (e) We or our representatives may, at any time, enter your premises for purposes of inspecting, examining or repairing the Equipment. (f) The Equipment shall remain our personal property and shall not under any circumstances be considered as a fixture affixed to your real estate. You shall permit us to affix suitable labels or stencils to the Equipment evidencing our ownership. (g) You are responsible for any loss damage or destruction of the Equipment. During the Term, you will, at your expense, procure and maintain comprehensive general liability and casualty insurance acceptable to us on the Equipment. Each insurance policy will name us as additional insured and loss payee. A property damage surcharge of $4.95 per terminal or $6.95 per tablet per month will be charged until such time you provide to us a certificate of insurance evidencing that such coverage is in effect. The property damage surcharge will cover in part our administrative costs, credit risk and other costs, and may include a profit. Our imposition of a property damage surcharge shall not relieve you of your obligations under this Section. The loss, destruction, theft or damage of or to the Equipment shall not relieve you from your obligation to pay the full purchase price or total monthly lease charges hereunder.
6. Title to Equipment. We at all times during the Term shall retain title to the Equipment. You agree to execute and deliver to us any statement or instrument that we may request to confirm or evidence our ownership of the Equipment, and you irrevocably appoint us as your attorney-in-fact to execute and file the same in your name and on your behalf. You hereby grant us a first priority security interest on the Equipment as of the date of this Agreement to secure your obligations to us under this Agreement, and you authorize us to file on your behalf such documentation as we may feel advisable to evidence or perfect such security interest.
7. Return or Purchase of Equipment at End of Term. Upon the completion of the Lease Term or any extension thereof and provided no default has occurred and is continuing you will have the option to (a) return the Equipment to us; (b) purchase the Equipment from us for its then fair market value, calculated as a percentage of the aggregate monthly lease payments in accordance with the following: If the Lease Term is forty-eight (48) months or more, the purchase option as a percentage of the aggregate monthly lease charges shall be ten percent (10%). If the Lease Term is thirty-six (36) to forty- seven (47) months, the purchase option as a percentage of the aggregate monthly lease payments shall be fifteen percent (15%). If the Lease Term is twenty-four (24) to thirty-five (35) months, the purchase option as a percentage of the aggregate monthly lease payments shall be twenty percent (20%); or (c) after the final monthly lease payment has been received by us, the Agreement will revert to a month by month rental at the existing monthly lease charge. If you do not want to continue to lease the Equipment, then you will be obligated to provide us with 60 -day written notice prior to the conclusion of the then current Term to terminate and return the Equipment to us. An upgrade of the leased equipment shall generate a $50 administrative charge. You agree that all equipment returns shall be to 365 W. Passaic Street, Ste. 225, Rochelle Park, NJ, 07662, and be done in a manner that can be tracked and shall have the Lease Number referenced on the return packaging. You understand and agree that equipment returned with excessive wear and tear will possibly result in you being charged the then fair market value of the equipment, or a fee to cover the excess wear and tear. When returning your equipment make sure activation lock is disabled, and all password removed and reset to original factoring setting. Failure to do so would result in you being charged the then fair market value of the equipment. 8. Limitation on Liability. We are not liable for any loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment, including any damage or injury to persons or property caused by the Equipment. We are not liable for the use or maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any interruption of service or loss of use of the Equipment or resulting loss of business. Our liability arising out of or in any way connected with this Agreement shall not exceed the aggregate lease amount paid to us for the particular Equipment involved. In no event shall we be liable for any indirect, incidental, special or consequential damages. The remedies available to you under this Agreement are your sole and exclusive remedies.
9. Non-Consumer Finance Lease. (a) You agree that it is the intent of both parties that this lease qualify as a statutory finance lease under Article 2A of the Uniform Commercial Code (“UCC”) and, to the extent permitted by applicable law, you waive any right you may have under Sections 2A-303 and 2A-508 through 2A-522 of the UCC. (b) You agree that you will only use the Equipment for commercial purposes and will not use the Equipment for any personal family or household purposes. As such, you agree that neither you nor any guarantor is a “consumer” with respect to this Agreement, and that this Agreement shall not be construed as a consumer transaction or as a “consumer lease”.
10. Indemnification. You shall indemnify and hold us and our affiliates, and our and their respective managers, employees and agents harmless from and against any and all losses, liabilities, damages and expenses, (including attorneys’ fees) resulting from (a) the selection, delivery, operation, use, condition, maintenance liens against, or return of the Equipment or (b) any breach by you of any of your obligations under this Agreement.
11. Default; Remedies. (a) If any debit of your bank account initiated by us is rejected when due, or if you otherwise fail to pay us any amounts due hereunder when due, or if you default in any respect in the performance or observance of any obligation or provision of this Agreement, any such event shall be a default hereunder. (b) Upon the occurrence of any default, we may at our option, without notice, (i) terminate this Agreement, repossess the Equipment and proceed in any lawful manner against you for collection of all charges that have accrued and are due and payable; accelerate and declare immediately due and payable all monthly lease charges for the remainder of the Term together with the fair market value of the Equipment (as determined by us), not as a penalty but as liquidated damages for our loss of the bargain. Upon any such termination for default, we may proceed in any lawful manner to obtain satisfaction of the amounts owed to us and, if applicable, our recovery of the Equipment, including entering onto your premises to recover the Equipment. In any case, you shall also pay us our costs of collection, court costs and reasonable attorneys’ fees, as well as applicable shipping, repair and refurbishing costs of recovered Equipment. You agree that we shall be entitled to recover any amounts due to us under this Agreement by charging your bank account or any other funds of yours that come into our possession or control, or within the possession or control of our affiliates, alliances or joint ventures, or by setting off amounts that you owe to us against any amounts we may owe to you, in any case without notifying you prior to doing so. Without limiting the foregoing, you agree that we are entitled to recover amounts owed to us under this Agreement by obtaining directly from any third- party service provider with which you have entered into a Merchant Agreement any funds held or available as settlement or security for payment under the terms of the Merchant Agreement, including funds available under the “Reserve Account; Security Interest” section of the Merchant Agreement, if applicable.
12. Assignment. You may not assign or transfer this Agreement or any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent. For purposes of this Agreement, any transfer of voting control of you or your parent shall be considered an assignment or transfer hereof. We may assign or transfer this Agreement and our rights and obligations hereunder, in whole or in part, to any third party without your consent. If we agree, in our sole discretion, to allow an assignment or transfer of this Agreement by you, you will be assessed a transfer and assumption fee of $150. This Agreement shall be binding upon, an inure to the benefit of, successors and permitted assigns of the parties hereto.
13. Lease Guaranty. All indebtedness that exists now or arises after the execution of this Agreement between you and any guarantor is hereby subordinated to all of your present and future obligations, and those of your guarantor, to us, and no payment shall be made or accepted on such indebtedness due to you from a guarantor until the obligations due to us are paid and satisfied in full.
14. Governing Law; Venue; Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT APPLYING ITS CONFLICTS OF LAWS PRINCIPLES). YOU CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN NEW JERSEY IN ACTION OR PROCEEDING RELATING TO THIS AGREEMENT. YOU WAIVE ANY OBJECTION BASED UPON IMPROPER VENUE AND/OR FORUM NON CONVENIENS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO A JURY TRIAL IN ANY SUCH ACTION OR PROCEEDING. If any part of this Agreement is not enforceable, the remaining provisions will remain valid and enforceable. Only the copy of this Agreement marked as the “sole original” or similar language by us or our designee is the chattel paper original of this Agreement. We may acknowledge our acceptance of this Agreement in a subsequent communication signed by us.
15. Notices. All notices other than routine administrative communications must be in writing, and sent to you at your address set forth above or to us at 23970 Highway 59 North, Kingwood, Texas, 77339 (or such other address as a party may by written notice designate to the other) and shall be deemed to have been given if sent by mail or courier, upon the earlier of two business days after mailing or when actually received or, in the case of courier, when delivered. The customer service toll free number is 855-727-1210. You agree that by providing us with an email address or a telephone number for a cellular or wireless device, you expressly consent to receiving communications including voice and text messages from us at that number or email address, and this express consent applies to each such email address or telephone number that you provide to us now or in the future. ACMF_ST_20191209
16. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to its subject matter, supersedes any previous agreements and understandings and can be changed only by a written agreement signed by all parties. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. A facsimile or other copy of this Agreement shall be the equivalent of an original for all purposes. You agree this document may be signed electronically pursuant to the Electronic Signatures in Global and National Commerce Act and other applicable law.
Undersigned, on behalf of the Lessee with due authorization, agrees to all terms and conditions contained in this Equipment Lease Agreement. Lessee authorizes Ascentium Capital LLC or its agents, to request and obtain information relevant to the Application and this Agreement from all sources including, but not limited to, business and consumer reports from credit reporting agencies. If the Application is approved, each of the undersigned authorizes us to obtain subsequent updates from all sources in connection with the maintenance, updating, renewal or extension of the Agreement. Each of the undersigned furthermore agrees, on behalf of the Lessee, that all references, including banks and consumer reporting agencies, may release any and all business credit financial information to us. THIS IS A NON-CANCELABLE LEASE FOR THE FULL TERM INDICATED HEREIN.