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HomeMy WebLinkAboutCommerical Entity Agreement - Square Inc.�NTER-OFFICE MEMORANDUM Department of Innovation & Technology City of South Bend 227 W Jefferson Blvd TO: Board of Public Works, Linda Martin, Sandra Kennedy, Clara McDaniels CC: Rahman Johnson, Michael Schmidt, Ben Dougherty, Jen Hockenhull, Dan O'Connor FROM: Jeff Weaver SUBJECT: Square, Inc. ais a New Vendor DATE: 7/13/2018 Linda and Members of the Board We are submitting for review and approval for a new vendor, Square, Inc. Square is a financial services, merchant services aggregator, and mobile payment company based in San Francisco, California. The company markets several software and hardware payments products, including Square Contactless and Chip Reader, Square Stand, Square Register and Square Magstripe Reader, and has expanded into small business services such as Square Capital, a financing program, Cash App,, a person - to -person payments service, Appointments, Gift Cards/eGift Cards, Invoices, Virtual Terminal, Marketing, Loyalty, Employee Management, and Square Payroll. Thie City of South Bend has identified Square Inc. as the most practical vendor to act as the City's point of sale (POS) merchant software and hardware vendor. The City currently has over 150 Apple iPad mobile devices deployed that can utilize Square's hardware and applications. Square is the recommended POS software anid hardware vendor by Apple due to its ease of use, encryption and security, deployment, and management of the online account. Square is one of the largest POS vendors, with millions of customers both domestically and internationally. Utilizing Square technology will give any City department with a mobile device the ability to set up an account, under the direction of City Finance, and begin taking credit card sales. This will benefit City entities such as pools and the East Race, where cash is currently only accepted. Additional benefits include the ability to set up donation accounts and sell event tickets. Thank you for your consideration in this matter, Jeffrey M. Weaver, LISP Commercial Entity Ageeiiietit fiffps: Hsqu at-eup , coin/legal/cea E-Sign Consent Licenses Additional Point of Sale Terms of Service HIPAA Business Associate Agreement Government Additional Cash `reruns of Service Casli Card Terms of Service Cash LDDA Terms Additional Virtual Currency Terms of Service Hardware Policies and Warranty Notices Coinniercial.Entity Agreement Developer Terms of Service Additional PaVroll 'Ternis of Service Square Installments Seller Terms of Service Commercial Entity Agreement jPlop jjgChase Wells Fargo Commercial Entity Agreement with JPMorgan Chase This Commercial Entity Agreement (this "Agreement") is provided to all users of the Square, Inc. ("Square") mobile application, card reader devices, and payments service (collectively, the "Square Service") for the acceptance of card payments that are "Conanercial Entities" as defined by Visa, Inc. and MasterCard International, Inc, (collectively, the "Card Brands"). As such an entity, the seller signing or electronically agreeing to the terms hereof ("Seller" or "you") is entering into this Agreement with JPMorgan Chase Bank, N.A. (the "Member"), and Paymentech, LLC ("Payi-nentech"), to govern the authorization, conveyance and settlement of Transactions utilizing the Square Service. By entering into this Agreement Seller is fulfilling the Card Brand Rules requiring a direct contractual relationship between the Member and Seller, and Seller is agreeing to comply with Card Brand Rules as they pertain to payments Seller receives through the Square Service. Paymentceh shall be a third -party beneficiary of, and may enforce any provisions of, or cease providing card processing services under, the Seller Agreement ("Seller Agreement"). 1. Card Brand Rules And Acceptance Requirements. Seller agrees to comply with all Card Brand Rules as may be applicable to Seller and in effect from time to time, and such other procedures as Square and/or Paymentecb may from time to time prescribe relating to Seller's acceptance of Cards. Without limiting the generality of the foregoing, Seller agrees, to each of the following requirements and restrictions: (a) Ilona Fide Transactions. 2 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement littps: //squarcup. coin/legal/cea Seller shall not submit any Transaction that is not a bona fide Transaction. A "bona fide" Transaction means a Transaction that is (i) between the Seller and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Seller's property or that Seller has the legal right to sell, (iii) submitted on behalf of Seller (and not on behalf of any third party), and (iv) legal, authorized by the Customer, non - fraudulent or otherwise damaging to the Card Brand(s), and is, to the Seller's knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, or Card Brand Rules. (b) Mini►nu►n/Maxintum Thresholds For Card Acceptance; Surcharges. Except as expressly permitted by law, Seller shall not (i) set a dollar amount above or below which Seller refuses to honor Cards or (ii) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Seller under this Agreement) in connection with or as a condition of the use or acceptance of a Card. (c) Split Transactions. Seller agrees to submit a single Transaction for the full amount of each sale. Seller shall not split a single Transaction into two or more Transactions, except to allow for partial payment by prepaid of gift Card. (d) Taxes. Seller shall not add any tax or surcharge to Transactions, unless applicable law expressly allows or requires the Seller to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount shall be included in the Transaction amount and shall not be collected separately. (c) Use or Card Account Numbers. Seller shall not request or use Card Information for any purpose except as payment for its goods or services of to provide a refund for goods or services previously sold, unless required by the Card Brand Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Square, any Card Brand, or in response to a govermnent request; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate in a forensic investigation if so required. (t) Existing Debt. Seller shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. Seller shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer's consent. Seller shall not submit any Transaction which it knows or should know to be unenforceable or uncollectable. (g) Time of Payment. At the time Seller accepts a Card for any goods or services, the goods shall have been provided or slipped or the services actually rendered to the Customer, except as specifically stated otherwise in Seller's Application 3 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https://,squareup.com/legal/cea (or otherwise approved in writing by Paymentech in advance). (1►) Cash Advances. Seller shall not disburse or advance any cash to a Customer (except as authorized by the Card Brand Rules) or to itself or any of its representatives, agents, or employees in connection with a Transaction, nor shall Seller accept payment for effecting credits or issuing refunds to a Customer. (i) Discrimination. Unless permitted by the Card Brand Rules, Seller shall not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand. 6) Refunds/Credits. Any Transaction submitted to Paymentech to credit a Customer's Card account represents a refund for a prior Transaction submitted to Paymentech using the same Card. (k) Installment Plans. Unless specifically stated in its Application or otherwise approved in writing by Paymentech in advance, Seller shall not accept Cards in connection with installment plans. If the Customer pays in instalhnents or on a deferred payment plan, as previously approved by Paymentech, a Transaction Data record has been prepared separately for each installment transaction or deferred payment on the dates the Customer agreed to be charged. All installments and deferred payments, whether or not they have been submitted to Paymentech for processing, shall be deemed to be a part of the original Transaction. (1) Recurring'I�•ansactlons. For recurring Transactions, if any, permitted by the Seller Agreement, Seller must (i) obtain the Customer's consent to periodically charge the Customer on a recurring basis for the goods or services purchased; (ii) retain this permission for the duration of the recurring services and provide it upon request to Paymentech or the issuing bank of the Customer's Card; and (iii) retain written documentation specifying the frequency of the recurring charge, and the duration of time during which such charges may be made, and the amount or range of amounts that may be charged. Seller shall not submit any recurring transaction after receiving: (i) a cancellation notice from the Customer (so long as such notice was timely provided three (3) or more days prior to the transaction date); or (ii) notice from Paymentech or any Card Brand (via authorization code or otherwise) that the Card is not to be honored. Seller shall include in its Transaction Data the electronic indicator that the Transaction is a recurring Transaction. (►n) Seller Identification. Seller agrees to prominently and unequivocally inform the Customer of the identity of the Seller at all points of interaction. (n) Visa and MasterCard Marks. 4 of 23 7/13/201 S, 10:16 AM Commercial Entity Agreement https: //squareup.com/I egal/cea Seller is authorized to use the Visa and MasterCard logos or marks only on Seller's promotional materials and website to indicate that Visa and MasterCard cards are accepted as funding sources for Square Transactions. (o) Chargebacks, Seller shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Seller shall promptly comply with all requests for information from Square. Seller shall not attempt to recharge a Customer for an item that has beenn charged back to the Customer, even with the Customer's consent. You shall have full liability for the amount of any and all successful Chargebaeks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules). 2. Authorizations Required For All Transactions. Seller is required to obtain an authorization through the Square Service, in accordance with this Agreement, for each Transaction. Paymentech reserves the right to refuse to process any Transaction Data presented by Seller unless it includes a proper authorization. 3. Refunds. Seller is required to maintain a refund policy if Seller limits refund/exchange terms or other specific conditions for Card Transactions, Seller's policy must be clearly provided to the Customer prior to the sale and as part of the sale confirmation process. Proper disclosure would include wording that is prominently displayed and states "NO REFUND, EXCHANGE ONLY" or something substantially similar and includes any special terms. Qualifying Seller's refund or exchange terms does not completely eliminate Seller's liability for a refund because consurner protection laws and Card Brand Rules frequently allow the Customer to still dispute these items. If, under Seller's refund policy, Seller allows a refund, Seller shall implement such refund within three (3) days of approving the Customer's request for such refund. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise. Seller shall not accept any payment from a Customer as consideration for issuing a refund. 4. Term And Termination. This Agreement is effective upon the date Seller agrees to it (by electronically indicating acceptance hereof or othelwvise) and continues so long as Seller uses the Square Service or until terminated by Seller or Paymentech. This Agreement will terminate automatically upon any termination or expiration of your Seller Agreement. This Agreement may be terminated by Paymentech at any time based on a breach of any of Seller's obligations under this Agreement or the Seller Agreement, or based on the termination of the payment processing relationship between Square and Paymentech. In addition and without limiting the generality of the foregoing, Paymentech may terminate this Agreement at any time upon written notice to Seller as a result of any of the following events: (a) irregular Transactions by Seller, excessive Chargebacks, or any other circumstances which., in Paymentech's discretion, may increase Paymentech's or Member's exposure for Seller's Chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to Payrentech; (b) Seller fails in any material respect in performance or observance of any terns, covenant, condition, or agreement contained in this Agreement or the Seller Agreement, including, without limitation, the funding or establishing of any reserve account which Square may require; (c) a case or other 5 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https:Hsquareup.com/l egal/cea proceeding shall be commenced by or against Seller in any court of competent jurisdiction seeking relief under the Bankruptcy Code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator, or the like of Seller, or of all or any substantial part of the assets, domestic or foreign, of Seller, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive days, or an order granting the relief requested in such case or proceeding against Seller (including, without limitation, an order for relief under the Bankruptey Code) shall be entered; (d) any Card Brand notifies Paymentech or Member that it is no longer willing to accept Seller's Transaction Data or requires Paymentech or Member to terminate or limit this Agreement; (e) Seller or any person owning or controlling Seller's business is listed in one or more databases of terminated or high risk Sellers maintained by the Card Brands; or (f) Seller engages in conduct that creates or could tend to create harm or loss to the goodwill of any Card Brand, Paymentech, or Square, or which otherwise may impose undue risk of harm to any Card Brand, Paymentech or Square. Notwithstanding any termination of this Agreement, those terms which by their nature are intended to survive termination (including without limitation, indemnification obligations and limitations of liability) shall survive. Termination does not affect either party's respective rights and obligations under this Agreement as to Transaction Data submitted before termination. 5. Indemnity. Paymentech agrees to indemnify and hold Seller harmless from and against all losses, liabilities, damages and expenses: (a) resulting from any breach of any warranty, covenant, or agreement or any misrepresentation by each of us under this Agreement; or (b) arising from our or our employee's gross negligence or willful misconduct in connection with this Agreement, Seller agrees to indemnify and hold Paymentech harmless from and against all losses, liabilities, damages and expense: (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Seller under this Agreement; (b) arising out of Seller's or its employees' negligence or willful misconduct in connection with Transactions or otherwise arising from Seller's provision of goods and services to Customers; (c) arising out of Seller's use of the Square Service; of (d) arising out of any third party indemnifications Paymentech is obligated to make, or liabilities or other obligations Paymentech may incur, as a result of Seller's actions (including indemnifications of or liabilities to, any Card Brand or Card -issuing bank). 6. Information About Seller's Business. 6.1 Additional Financial Information. Upon three (3) days' written notice at any time, Seller agrees to furnish to Square and/or Paymentech such financial statements and financial information as Square and/or Paymentech may request relating to Seller, Seller's creditworthiness and/or Seller's ability to fulfill its financial and other obligations under this Agreement. 6.2 Audit Rights. With prior notice and during Seller's normal business hours, Paymentech's duly authorized representatives may visit Seller's business premises and may examine Seller's books and records that pertain to Seller's Transactions or Seller's compliance with this Agreement. 6 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https://squareup.com/legal/cea 6.3 Other Information. Seller agrees to provide Paymentech at least 30 days' prior written notice of its intent to change current product lines or services, Seller's trade name, or the manner in which Seller accepts payment Instruments. If Paymentech determines such a change is material to its relationship with Seller, Paymentech may refuse to process Transaction Data made subsequent to the change or terminate this Agreement. Seller agrees to provide Paymentech with prompt written notice if Seller is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Seller's signature on this Agreement authorizes Paymentech to perform any credit check deemed necessary with respect to Seiler. Seller will also provide Paymentech with prompt written notice of (i) any adverse change in Seller's financial condition, (ii) any planned or anticipated liquidation or substantial change the basic nature of Seller's business, (iii) any transfer or sale of any substantial part (25% or more in value) of Seller's total assets, or (iv) if Seller or Seller's parent is not a corporation whose shares are listed on a national securities exchange or on the over-the-counter market, any change in the control or ownership of Seller or Seller's parent. Seller will also notify Paymentech of any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of Seller's total assets not later than three (3) days after Seller obtains knowledge of any such judgment, writ, warrant of attachinent, execution or levy. 7. Disclaimer; Limitation Of Damages. We will, at our own expense, correct any Transaction Data to the extent that such errors have been caused by us or by malfunctions of our processing systems. Under no circumstances will Paymentech's financial responsibility for our failure of performance under this Agreement exceed the total fees paid to us under this Agreement (net of Card Brand fees, third party fees, interchange, assessments, penalties and fines) for the six (6) months prior to the time the liability arose. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO SELLER'S FAILURE TO COMPLY WITH THE SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT, ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES TO WHICH THE UNIFORM COMMERCIAL CODE DOES NOT APPLY, AND PAYMENTECH AND MEMBER HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO SELLER OR ANY OTHER PERSON REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES, 8. Miscellaneous. 8.1 Application and Credit Check. Seller represents and warrants that statements made on its Application for this Agreement are true as of the date of its execution of this Agreement. Seller's signature on this Agreement authorizes Paymentech to perform any credit check deemed necessary with respect to Seller, 8.2 Section Headings. 7 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https:Hsquat-cup.com/legal/cea The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement. 8.3 Assignment. Paymentech may assign this Agreement to an entity qualified under Card Brand Rules to perform its obligations under this Agreement. Seller cannot assign or transfer your rights or delegate its responsibilities under this Agreement without Paymentech's prior written consent. Failure to obtain our consent may result in a termination of this Agreement. Any permitted assignee or successor entity must provide such additional information and execute such additional documentation or take any further actions as Paymentech may request in order to ensure continued processing of Transactions under this Agreement. 8.4 Parties. This Agreement binds Seller and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns. 8.5 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement. 8.6 Waivers. No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. 8.7 Entire Agreement. This Agreement represents the entire understanding between Seller and Paymentech with respect to the matters contained herein and supersedes any prior agreements between the parties. For purposes of clarity, this Agreement does not supersede the Seller Agreement between Seller and Square. Seller agrees that in entering into this Agreement it has not relied on any statement of Paymentech or its representatives. The parties acknowledge and agree (i) that this Agreement applies only to Transaction Data generated within the United States; and (ii) that this is a contract for commercial services. 8.8 Notices. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing. 8.9 Governing Law; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without 8 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement littps: //squareu p.coni/legal/cea reference to conflict of law provisions. Any action, proceeding, arbitration heating or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in Dallas County, Dallas, Texas. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) SELLER IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH, MEMBER, OR RELATED THIRD PARTIES; (ii) SELLER IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST PAYMENTECH, MEMBER OR RELATED THIRD PARTIES; (iii) SELLER IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST PAYMENTECH, MEMBER AND/OR RELATED THIRD PARTIES. Any claim, dispute, or controversy (`Claim') by either Seller, Paymentech or Member against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association ("AAA"). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Seller, Paymentech's or Member's negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non -class, non -representative) basis only, and the arbitrator may award relief only on an individual (non -class, non -representative) basis. Seller and Paymentech will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Seller and Paymentech and/or Member. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class -wide or class action basis. The prohibition against class action contained in this Section shall be non -severable from the remainder of this Section. If either party prevails in the arbitration of any Claim against the other, the non -prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction, Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § § 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either patty to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, SELLER AND PAYMENTECH MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. 8.10 Force Majeure. 9 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https://squareup.com /legal/cea Neither party will be liable for delays in processing or other nonperformance caused by such events as tires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, wax, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 8.10 will affect or excuse your liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services. 8.11 Amendment. This Agreement may be amended at any time by Paymentech upon 30 days notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Brand Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment. 8.12 Tax Matters. Paymentech and/or Square are obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, upon request, Seller shall provide Square and/or Paymentech with the appropriate taxpayer information covered by Internal Revenue Service (IRS) Form W 9 (or the appropriate versions of Form W-8, if applicable). Paymentech or Square may, in accordance with applicable law and from time to time during the term of this Agreement, request Seller to recertify its taxpayer information hereunder. Furthermore, Seller shall be responsible for any IRS penalties accruing based on the actions or inactions of Seller despite reasonable requests and/or notices from Paymentech. 9. Definitions. "Application" is a statement of your financial condition, a description of the characteristics of your business or organization, and related information you have previously or concurrently submitted to us, including credit and financial information, to induce us to enter into this Agreement with you and that has induced us to process your Transactions under the terms and conditions of this Agreement. "Card" is an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts. "Card Brand" is any payment method provider whose payment method is accepted by Paymentech for processing, including, but not limited to, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Card Brand also includes the Payment Card Industry Security Standards Council. "Card Brand Rules" are the bylaws, rules, and regulations, as they exist fi-orn time to time, of the Caxd Brands. "Card Information" is information related to a Customer or the Customer's Card, that is obtained by Seller from the Customer's Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the customer's zip code when provided as part of an address verification 10 of 23 7/1312018, 10:16 AM Commercial Entity Agreement littps://squat-eup.com/legal/cea system). Without limiting the foregoing, such information tnay include a the Card account number and expiration date, the Customer's name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon. "Chargeback" is a reversal of a Transaction you previously presented to Paymentech pursuant to Card Brand Rules. "Customer" is the person or entity to whom a Card is issued or who is otherwise authorized to use a Card. "Member" is .IPMorgan Chase Bank, N.A. or other entity providing sponsorship to Payinentech as required by all applicable Card Brand. Member is a principal party to this Agreement and your acceptance of Card Brand products is extended by the Member. "Paymentech", "we", "our", and "us" is Paymentech, LLC, a Delaware limited liability company, having its principal office at 14221 Dallas Parkway, Dallas, Texas 75254. "Security Standards" are all rules, regulations, standards or guidelines adopted or required by the Card Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards ("PCI DSS"), Visa's Cardholder Information Security Program ("CISP"), Discover's Information Security & Compliance Program, American Express's Data Security Operating Policy, MasterCard's Site Data Protection Program ("SDP"), Visa's Payment Application Best Practices ("PABP"), the Payment Card Industry's Payment Application Data Security Standard ("PA DSS"), MasterCard's POS "Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time. "Seller", "you", and "your" is the Seller identified in the Application. "Transaction" is a transaction conducted between a Customer and Seller utilizing a Card in which consideration is exchanged between the Customer and Seller. "Transaction Data" is the written or electronic record of a Transaction, including but not limited to an authorization code or settlement record. Commercial Entity Agreement With Wells Fargo This Commercial Entity Agreement (this "Agreement") is provided to all users of the Square, Inc. ("Square") mobile application, card reader devices, and payments service (collectively, the "Square Service") for the acceptance of card payments that are "Commercial Entities" as defined by Visa, Inc. and MasterCard International, Inc. (collectively, the "Card Brands"), As such an entity, the seller signing or electronically agreeing to the terms hereof ("Seller" or "you") is entering into this Agreement with Wells Fargo Bank, N.A. (the "Member"), and Wells Fargo Merchant Services, L.L.C. ("WFMS"), to govern the authorization, conveyance and settlement of Transactions utilizing the Square Service. By entering into this Agreement Seller is fulfilling the Card Brand Rules requiring a direct contractual relationship between the Member and Seller, and Seller is agreeing to comply with Card Brand Rules as they pertain to payments Seller receives through the Square Service. Wl~MS shall be a third -parry beneficiary of, and may enforce any provisions of, or cease providing card processing services under, the Seller Agreement ("Seller Agreement"). Square is a registered Payment Facilitator of Wells Fargo Bank, N.A., Concord, California. I I of 23 7/13/2018, 10: I6 AM Commercial Entity Agreement https://squareup.com/legal/cea 1. Card Brand Rules And Acceptance Requirements. Seller agrees to comply with all Card Brand Rules as may be applicable to Seller and in effect from time to time, and such other procedures as Square and/or WFMS may from time to time prescribe relating to Seller's acceptance of Cards. Without limiting the generality of the foregoing, Seller agrees to each of the following requirements and restrictions: (a) Bona Fide Transactions. Seller shall not submit any Transaction that is not a bona fide Transaction. A "bona fide" Transaction means a Transaction that is (i) between the Seller and its Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are Seller's property or that Seller has the legal right to sell, (iii) submitted on behalf of Seller (and not on behalf of any third party), and (iv) legal, authorized by the Customer, non - fraudulent or otherwise damaging to the Card Brand(s), and is, to the Seller's knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, or Card Brand Rules. (b) MinimumlMaximuui Thresholds For Card Acceptance; Surcharges. Except as expressly permitted by law, Seller shall not (i) set a dollar amount above or below which Seller refuses to honor Cards or (ii) impose or require the Customer to pay any fee or charge (including, without limitation, any surcharge or finance charge or any of the fees payable by Seller under this Agreement) in connection with or as a condition of the use or acceptance of a Card. (c) Split Transactions. Seller agrees to submit a single Transaction for the full amount of each sale. Seller shall not split a single Transaction into two or more Transactions, except to allow for partial payment by prepaid or gift Card. (d) Taxes. Seller shall not add any tax or surcharge to Transactions, unless applicable law expressly allows or requires the Seller to impose such tax or surcharge. If any tax or surcharge amount is allowed, such amount shall be included in the Transaction amount and shall not be collected separately. (c) Use of Card Account Numbers. Seller shall not request or use Card Information for any purpose except as payment for its goods or services or to provide a refund for goods or services previously sold, unless required by the Card Brand Rules. Seller agrees that (i) it will not use the Card Information for any purpose that it knows or should know to be fraudulent or in violation of any Card Brand Rules; (ii) it will not sell, purchase, provide or exchange in any manner or disclose Card Information to anyone other than Square, any Card Brand, or in response to a government request; and (iii) it will be compliant with the Security Standards, including the Payment Card Industry Data Security Standards (PCI DSS) and will cooperate in a forensic investigation if so required. (f) Existing Debt. 12 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https://squarcup.com/legal/cea Seller shall not submit a Transaction for any purpose other than a current Transaction. Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. Seller shall not attempt to recharge a Customer for an item that has been the subject of a Chargeback by the Customer, even with the Customer's consent. Seller shall not submit any Transaction which it knows or should know to be unenforceable or uncollectable. (g)Time of Payment. At the time Seller accepts a Card for any goods or services, the goods shall have been provided or shipped or the services actually rendered to the Customer, except as specifically stated otherwise in Seller's Application (or otherwise approved in writing by WFMS in advance). (h) Cash Advances. Seller shall not disburse or advance any cash to a Customer (except as authorized by the Card Brand Rules) or to itself or any of its representatives, agents, or employees in connection with a Transaction, nor shall Seller accept payment for effecting credits or issuing refunds to a Customer. (i) Discrimination. Unless permitted by the Card Brand Rules, Seller shall not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand. 0) Refunds/Credits. Any Transaction submitted to WFMS to credit a Customer's Card account represents a refund for a prior Transaction submitted to WFMS using the same Card. (k) Installment Plans. Unless specifically stated in its Application or otherwise approved in writing by WFMS in advance, Seller shall not accept Cards in connection with installment plans. If the Customer pays in installments or on a deferred paynhent plan, as previously approved by WFMS, a Transaction. Data record has been prepared separately for each installment transaction or deferred payment on the dates the Customer agreed to be charged. All installments and deferred payments, whether or not they have been submitted to WFMS for processing, shall be deemed to be a part of the original Transaction. (1) Recurring Transactions. For recurring Transactions, if any, permitted by the Seller Agreement, Seller must (i) obtain the Customer's consent to periodically charge the Customer on a recurring basis for the goods or services purchased; (ii) retain this permission for the duration of the recurring services and provide it upon request to WFMS or the issuing bank of the Customer's Card; and (iii) retain written documentation specifying the frequency of the recurring charge, and the duration of time during which such charges may be made, and the amount or range of amounts that may be charged. Seller shall not submit any recurring transaction after receiving: (i) a cancellation notice fiom the Customer (so long as such notice was timely provided three (3) or more days prior to the transaction date); or (ii) notice from WFMS or any Card Brand (via authorization code or 13 of 23 7/13/2018, 10:.16 AM Commercial Entity Agreement https://squareup.com/legal/cea otherwise) that the Card is not to be honored. Seller shall include in its Transaction Data the electronic indicator that the Transaction is a recurring Transaction. (►n) Seller Identification. Seller agrees to prominently and unequivocally inform the Customer of the identity of the Seller at all points of interaction. . (n) Visa and MasterCard 1llarks. Seller is authorized to use the Visa and MasterCard logos or marks only on Seller's promotional materials and website to indicate that Visa and MasterCard cards are accepted as funding sources for Square Transactions. (o) Chargebacks. Seller shall use all reasonable methods to resolve disputes with the Customer. Should a Chargeback dispute occur, Seller shall promptly comply with all requests for information from Square. Seller shall not attempt to recharge a Customer for an item that has been charged back to the Customer, even with the Customer's consent. You shall have full liability for the amount of any and all successful Chargebacks (and may have conditional liability for such Chargebacks prior to their final adjudication pursuant to the Card Brand Rules). 2. Authorizations Required For All Transactions. Seller is required to obtain an authorization through the Square Service, in accordance with this Agreement, for each Transaction. WFMS reserves the right to refuse to process any Transaction Data presented by Seller unless it includes a proper authorization. 3. Refunds. Seller is required to maintain a refund policy if Seller limits refund/exchange terms or other specific conditions for Card Transactions, Seller's policy must be clearly provided to the Customer prior to the sale and as part of the sale confirmation process. Proper disclosure would include wording that is prominently displayed and states "NO REFUND, EXCHANGE ONLY" or something substantially similar and includes any special terms. Qualifying Seller's refund or exchange terns does not completely eliminate Seller's liability for a refund because consumer protection laws and Card Brand Rules frequently allow the Customer to still dispute these items. If, under Seller's refund policy, Seller allows a refund, Seller shall implement such refund within three (3) days of approving the Customer's request for such refund. The amount of a refund cannot exceed the amount shown as the total on the original Transaction Data except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise, Seller shall not accept any payment from a Customer as consideration for issuing a refund. 4. Term And Termination. This Agreement is effective upon the date Seller agrees to it (by electronically indicating acceptance hereof or otherwise) and continues so long as Seller uses the Square Service or until terminated by Seller or WFMS. This Agreement will terminate automatically upon any termination or expiration of your Seller Agreement. 14 of23 7/13/2018, 10:16 AM Commercial Entity Agreement lit(ps.,Hsquai-eup.com/legal/cea This Agreement may be terminated by WFMS at any time based on a breach of any of Seller's obligations under this Agreement or the Seller Agreement, or based on the termination of the payment processing relationship between Square and WFMS. In addition and without limiting the generality of the foregoing, WFMS may terminate this Agreement at any time upon written notice to Seller as a result of any of the following events: (a) irregular Transactions by Seller, excessive Chargebacks, or any other circumstances which, in WFMS's discretion, may increase WFMS's or Member's exposure for Seller's Chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to WFMS; (b) Seller fails in any material respect in performance or observance of any term, covenant, condition, or agreement contained in this Agreement or the Seller Agreement, including, without limitation, the funding or establishing of any reserve account which Square may require; (c) a case or other proceeding shall be commenced by or against Seller in any court of competent jurisdiction seeking relief under the Bankruptcy Code or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up, or adjustment of debts, the appointment of a trustee, receiver, custodian, liquidator, or the like of Seller, or of all or any substantial part of the assets, domestic or foreign, of Seller, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive days, or an order granting the relief requested in such case or proceeding against Seller (including, without limitation, an order for relief under the Bankruptcy Code) shall be entered; (d) any Card Brand notifies WFMS or Member that it is no longer willing to accept Seller's Transaction Data or requires WFMS or Member to terminate or limit this Agreement; (e) Seller or any person owning or controlling Seller's business is listed in one or more databases of terminated or high risk Sellers maintained by the Card Brands; or (f) Seller engages in conduct that creates or could tend to create harm or loss to the goodwill of any Card Brand, WFMS, or Square, or which otherwise may impose undue risk of harm to any Card Brand, WFMS or Square. Notwithstanding any termination of this Agreement, those terms which by their nature are intended to survive termination. (including without limitation, indemnification obligations and limitations of liability) shall survive. Termination does not affect either party's respective rights and obligations under this Agreement as to Transaction Data submitted before termination. S. Indemnity Seller agrees to indemnify and hold WFMS harmless from and against all Iosses, liabilities, damages and expense: (a) resulting from any breach of any warranty, covenant or agreement or any misrepresentation by Seller under this Agreement; (b) arising out of Seller's or its employees' negligence or willful misconduct in connection with Transactions or otherwise arising from Seller's provision of goods and services to Customers; (c) arising out of Seller's use of the Square Service; of (d) arising out of any third party indemnifications WFMS is obligated to make, or liabilities or other obligations WFMS may incur, as a result of Seller's actions (including indemnifications of or liabilities to, any Card Brand or Card -issuing bank). 6. Information About Seller's Business. 6.1 Additional Financial Information. Upon three (3) days' written notice at any time, Seller agrees to furnish to Square and/or WFMS such financial statements and financial information as Square and/or WFMS may request relating to Seller, Seller's creditworthiness and/or Seller's ability to fulfill its financial and other obligations under this Agreement. 6.2 Audit Rights. 15 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement https://squareup. cony/legal/cea With prior notice and during Seller's normal business hours, WFMS's duly authorized representatives may visit Seller's business premises and may examine Seller's books and records that pertain to Seller's Transactions or Seller's compliance with this Agreement. 6.3 Other information. Seller agrees to provide WFMS at least 30 days' prior written notice of its intent to change current product lines or services, SeIler's trade name, or. the manner in which Seller accepts payment Instruments. If WFMS determines such a change is material to its relationship with Seller, WFMS may refuse to process Transaction Data made subsequent to the change or terminate this Agreement, Seller agrees to provide WFMS with prompt written notice if Seller is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Seller's signature on this Agreement authorizes WFMS to perform any credit check deemed necessary with respect to Seller. Seller will also provide WFMS with prompt written notice of (i) any adverse change in Seller's financial condition, (ii) any planned or anticipated liquidation or substantial change the basic nature of Seller's business, (iii) any transfer or sale of any substantial part (25% or more in value) of Seller's total assets, or (iv) if Seller or Seller's parent is not a corporation whose shares are listed on a national securities exchange or on the over-the-counter market, any change in the control or ownership of Seller or Seller's parent. Seller will also notify WFMS of any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of Seller's total assets not later than three (3) days after Seller obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy. 7. Disclaimer; Limitation Of Damages. We will, at our own expense, correct any Transaction Data to the extent that such errors have been caused by us or by malfunctions of our processing systems. Under no circumstances will WFMS's financial responsibility for our failure of performance under this Agreement exceed the total fees paid to us under this Agreement (net of Card Brand fees, third party fees, interchange, assessments, penalties and fines) for the six (6) months prior to the time the liability arose. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, AND EXCEPT WITH RESPECT TO SELLER'S FAILURE TO COMPLY WITH THE SECURITY STANDARDS, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY LOSS, THEFT, DISAPPEARANCE, OR DAMAGE TO DATA TRANSMITTED ELECTRONICALLY IN CONNECTION WITH THIS AGREEMENT. ALL PARTIES ACIfNOWLEDGE THAT THIS IS AN AGREEMENT FOR SERVICES TO WHICH THE UNIFORM COMMERCIAL CODE DOES NOT APPLY, AND WFMS AND MEMBER HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO SELLER OR ANY OTHER PERSON REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES. 8. Miscellaneous. 8.1 Application and Credit Check. Seller represents and warrants that statements made on its Application for this Agreement are true as of the 16 of 23 7/13/2019, 10:I6 AM Commercial Entity Agreetnent littps://squarcup.coiii/legal/cea date of its execution of this Agreement. Seller's signature on this Agreement authorizes WFMS to perform any credit check deemed necessary with respect to Seller. 8.2 Section Headings. The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement. 8.3 Assignment. WFMS may assign this Agreement to an entity qualified under Card Brand Rules to perform its obligations under this Agreement. Seller cannot assign or transfer your rights or delegate its responsibilities under this Agreement without WFMS's prior written consent. Failure to obtain our consent may result in a termination of this Agreement. Any permitted assignee or successor entity nrust provide such additional information and execute such additional documentation or take any further actions as WFMS may request in order to ensure continued processing of Transactions under this Agreement. 8.4 Parties. This Agreement binds Seller and its respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns. 8.5 Severability. Should any provision of this Agreement be determined to be invalid or unenforecable under any law, rule, or regulation, including any Card Brand Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement. 8.5 Waivers. No term or condition of this Agreement may be waived except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. 8.7 Entire Agreement. This Agreement represents the entire understanding between Seller and WFMS with respect to the matters contained herein and supersedes any prior agreements between the parties. For purposes of clarity, this Agreement does not supersede the Seller Agreement between Seller and Square. Seller agrees that in entering into this Agreement it has not relied on any statement of WFMS or its representatives. The parties acknowledge and agree (i) that this Agreement applies only to Transaction Data generated within the United States; and (ii) that this is a contract for commercial services. 8.8 Notices. Except as otherwise provided in this Agreement, all notices must be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed), to the addresses set forth 17 of 23 7/13/2018, 10:16 AM Commercial Entity Agreement littps: //squareup.coiii /legal/cea below or to such other address as either party may from time to time specify to the other party in writing. 8.9 Governing Law; Waiver of Jury `Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in San Francisco County, California. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION AND THAT (i) SELLER IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST WFMS, MEMBER, OR RELATED THIRD PARTIES; (ii) SELLER IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST WFMS, MEMBER OR RELATED THIRD PARTIES; (iii) SELLER IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST WFMS, MEMBER AND/OR RELATED THIRD PARTIES. Any claim, dispute, or controversy (`Claim') by either Seller, WFMS or Member against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to this Agreement or to the relationship formed between the parties as a result of this Agreement, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association ("AAA"). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Seller, WFMS's or Member's negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non -class, non -representative) basis only, and the arbitrator may award relief only on an individual (non -class, non-represcntative) basis. Seller and WFMS will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Seller and WFMS and/or Member. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class -wide or class action basis. The prohibition against class action contained in this Section shall be non -severable from the remainder of this Section. If either party prevails in the arbitration of any Claim against the other, the non - prevailing party will reimburse the prevailing party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys' fees incurred by the prevailing party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-900-778-7879. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either party to the other. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, SELLER AND WFMS MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS), 18 of 23 7/13/2018, 10:16 AM Commercial Entity Agreemetit https://squarcup.com/legal/cea BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. 8.10 Forcc Majeure. Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecornmunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperfor nance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section 7.10 will affect or excuse your liabilities and obligations for Chargebacks, refunds, or unfulfilled products and services. 8.11 Amendment. This Agreement may be amended at any time by WFMS upon 30 days notice to you. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Brand Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your electronic signature or continued submission of Transactions to us following such, notice will be deemed to be your acceptance of such amendment, 8.12 Tape Matters. WFMS and/or Square are obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, upon request, Seller shall provide Square and/or WFMS with the appropriate taxpayer information covered by Internal Revenue Service (IRS) Form. W-9 (or the appropriate versions of Form. W 8, if applicable). WFMS or Square may, in accordance with applicable law and from time to time during the terns of this Agreement, request Seller to recertify its taxpayer information hereunder. Furthermore, Seller shall be responsible for any IRS penalties accruing based on the actions or inactions of Seller despite reasonable requests and/or notices from WFMS. 9. Definitions. "Application" is a statement of your financial condition, a description of the characteristics of your business or organization, and related information you have previously or concurrently submitted to us, including credit and financial information, to induce us to enter into this Agreement with you and that has induced us to process your Transactions under the terms and conditions of this Agreement, "Card" is an account, or evidence of an account, authorized and established between a Customer and a Card Brand, or representatives or members of a Card Brand that you accept from Customers as payment for a good or service. Cards include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts. "Card Brand" is any payment method provider whose payment method is accepted by WFMS for processing, including, but not Iithhited to, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and other credit and debit card providers, debit network providers, gift card and other stored value and loyalty program providers. Card Brand also includes the Payment Card Industry Security Standards Council. "Card Brand Rules" are the bylaws, rules, and regulations, as they exist from time to time, of the Card 19 of23 7/13/2018, 10:16 AM Commercial Entity Agreement https://squareup.com/legal/cea Brands. Card Information" is information related to a Customer or the Customer's Card, that is obtained by Seller from the Customer's Card, or from the Customer in connection with his or her use of a Card (for example a security code, a PIN number, or the customer's zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Card account number and expiration date, the Customer's name or date of birth, PIN data, security code data (such as CVV2 and CVC2) and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically or otherwise stored thereon. "Chargeback" is a reversal of a Transaction you previously presented to WFMS pursuant to Card Brand Rules. "Customer" is the person or entity to whom a Card is issued or who is otherwise authorized to use a Card. "Member" is Wells Fargo, N.A. or other entity providing sponsorship to WFMS as required by all applicable Card Brand. Member is a principal party to this Agreement and your acceptance of Card Brand products is extended by the Member. "WFMS", "we", "our", and "us" is Wells Fargo Merchant Services, L.L.C., a Delaware limited liability company, having its principal office at 420 Montgomery Street, San Francisco, California 94104. "Security Standards" are all rules, regulations, standards or guidelines adopted or required by the Card Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Card Information, including but not limited to the Payment Card Industry Data Security Standards ("PCI DSS"), Visa's Cardholder Information Security Program ("CISP"), Discover's Information Security & Compliance Program, American Express's Data Security Operating Policy, MasterCard's Site Data Protection Program ("SDP"), Visa's Payment Application Best Practices ("PABP"), the Payment Card Industry's Payment Application Data Security Standard ("PA DSS"), MasterCard's POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time. "Seller", "you", and "your" is the Seller identified in the Application. Transaction" is a transaction conducted between a Customer and Seller utilizing a Card in which consideration is exchanged between the Customer and Seller. "Transaction Data" is the written or electronic record of a Transaction, including but not limited to an authorization code or settlement record. Association Disclosure; Member Bank Information: Member, Wells Fargo Bank, N.A., may be contacted by mail at: PO Box 6079, Concord, CA 94524; and by phone at 1-800-451-5817. Important Member trankResponsibibties: (a) Member, and not Square, is the entity approved to extend acceptance of Association products directly to you. (b) Member must be a principal (signer) to this Agreement. (c) Member is responsible for educating you on pertinent Visa and MasterCard Rules with which you must 20 of 23 7/13/2018, 10:16 AM CoilinlercW Etitity Agreement littl)s://squai-eup.cotii/legal/cea comply; but this information may be provided to you by Square. (d) Subject to this Agreement, Member is responsible for and must provide settlement funds to you. (e) Member is responsible for all settlement funds prior to funding you (or your agent), I in Portant seller Responsibilities: (a) Ensure compliance with cardholder data security and storage requirements. (b) Maintain fraud and chargebacks below Association thresholds, (c) Review and understand the terms of this Agreement, (d) Comply with Visa and MasterCard rules, Software Products • fit 11jents • Point of Sale • Dashboard • A�nal 'tics • Deposits • -Invoices • Virtual Terininal. • G i ft Cards • eComynerce • A.., ointments • PAY Lo 11 • L'Am kvcMg-n craaent • Location Managc:!Iigit • Inventory • Customer j-, �pla g eqLeL • Feedback • CLIsto.aier Director • AMINLqf Le�ftflace • jLeK�Jojjer AP js _ • Caviar • a s I i �A) L) Hardware Products • Reader for • Reader for egitactle. s and chip • Starld a She istcr° 0 Pr 0 Slola 21 of 23 7/13/2018, 10:16 AM BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM 7\13\2018 Jeff Weaver Department Public Works _BP W Date '7/24/2018 Phone Extension 9587_____ Legal X Attorney Name Kennedy/McDaniels Controller review is required for all Contracts $5,000.00 or more Controller Z and greater than one year in length per the City Purchasing Policy Purchasing Z L Agreement N Contract H Proposal LI Addendum F-1 Professional Services El Amendment n Bid Opening El Bid Award Req. to Advertise El Title Sheet ❑ Quote Opening ❑ Quote Award Chg Order No. ❑ C/0 & PCA No. ❑ PCA El Ease./Encroach. F-1 Traffic Control ❑I Resolution n Other- F1 Claim Company or Vendor Name New Vendor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of SauareUo Yes ❑ If Yes, Approved by Purchasing ❑ No MBE Completed E-Verify Form Attached F-1 WBE Square Point of Sales for iPads i n/a n/a n/a Contract to do business COSB would like to use Square as POS for mobile devices, be,ginning with VPA locations. increase $ Decrease $ Previous Amount Current Percent of Change: New Amount Total Percent of Change: Time Extension. Copy Original M n F-1 F] R 11 Jeff Weaver Dispersal After Approval