JetPay Payment Services
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents.
The 'JetPay' party listed throughout this agreement will refer to the entity below.
JetPay, a Texas limited liability company whose address is:
3361 Boyington Drive,
Carrollton, TX 75006
In consideration of the mutual promises and covenants contained in this Merchant Agreement ("Agreement"), the parties agree as follows:
1. Parties. The parties to this Agreement are ("Bank", as marked and described below, with respect to Visa, MasterCard, and Discover Network Transactions), JetPay, a Texas limited liability company whose address is 3361 Boyington Drive, Suite 180, Carrollton, TX 75006 ("JetPay"), 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:
3. Merchant agrees to participate in program. Merchant agrees to participate in the card processing services program established by Bank and JetPay.
3.1. Contact with Merchant. If Merchant elects to receive messages from Bank, JetPay, and Card Associations regarding products, services and resources available to it, as indicated on the Merchant Application, Merchant agrees messages maybe sent by Bank, JetPay, and Card Associations to the phone numbers, facsimile numbers, or email addresses provided by Merchant. If a wireless number is provided, Merchant agrees communications may be sent via SMS or text in addition to automated calls. Merchant may opt out of receiving messages by contacting JetPay at email@example.com. Opting-out will not preclude you from receiving important transactional or relationship messages from Bank, JetPay, and Card Associations.
4. JETPAY to provide services to Merchant. During the term of this Agreement, subject to the terms and conditions of this Agreement, JetPay agrees to provide technical documentation and support in order to allow Merchant to accept and process Transactions. JetPay shall provide technical support and customer support for all Transactions, including, without limitation, Authorization, Settlement, Chargeback processing and reporting, twenty-four hours each day, seven days each week (Settlement in conjunction with non-bank holidays and weekends) during the term of this Agreement. JetPay agrees to provide Merchant with the Services on Schedule A as amended from time to time by JetPay, during the term of this Agreement, subject to the terms and conditions of this Agreement.
5. Independent Contractor. In the performance of its duties hereunder, JetPay shall be an independent contractor, and not an employee or agent of Bank.
6. Compliance with Card Association Operating Rules. The terms of the Card Association Operating Rules form a part of and are incorporated into the Merchant Agreement. Merchant agrees to comply with the Card Association Operating Rules, as the same may be amended from time to time. The Card Association Operating Rules may change with little or no advance notice to Merchant and Merchant will be bound by all such changes. In the event the provisions of this Merchant Agreement conflicts with the provisions of the Card Association Operating Rules, the Card Association Operating Rules for the particular Card would govern.
7. Term. This Agreement shall become effective when all parties sign the Merchant Application form to which this Agreement is attached 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 ninety (90) days prior to the end of the then-current term. Prior to termination and regardless of the circumstances for termination, Merchant grants JetPay a right of first refusal in connection with any proposal made to Merchant by any other merchant services provider to provide a product or service that is the same or substantially similar to any product or service offered by Bank or JetPay and which proposal Merchant wishes to accept. Merchant shall promptly notify JetPay, in writing, of any such proposal and if Merchant's fails to provide such notice, JetPay shall have the option to charge merchant for liquidated damages (LD), as specified in Section 37 of this Merchant Agreement. The notice from Merchant shall reasonably and sufficiently describe both the price and the non-price terms of the products and services to be offered pursuant to the proposal. Within thirty (30) days from the date JetPay received written notice from Merchant, JetPay may elect to exercise its right of first refusal by offering the same or substantially similar product or service on the same or more favorable price and non-price terms as that of the other merchant services provider and so notifying Merchant in writing. In the event JetPay fails to exercise its right of first refusal with respect to any such proposal, Merchant may accept that proposal, provided, however, that JetPay's failure to exercise its right of first refusal in any one instance shall not preclude or otherwise void or affect JetPay's right of first refusal with respect to any other proposal. All existing obligations, warranties, indemnities and agreements with respect to Transactions entered into before such termination shall remain in full force and effect, and Merchant shall remain liable for all obligations to Cardholders and Bank incurred while this Agreement was in effect.
8. 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 and JetPay("Operating Account"), through which fees, charges and credits due in accordance with this Agreement may be processed. Merchant irrevocably authorizes Bank or JetPay to debit all amounts Merchant owes Bank or JetPay hereunder from the Operating Account, whether maintained at Bank or another financial institution, at times deemed appropriate by Bank or JetPay, through the ACH Banking Network or by a manual debit of the Operating Account. Merchant waives any claims for loss or damage arising out of any such charges or debits to the Operating Account against any other financial institution where the Operating Account is maintained.
9. Reserve Account. Upon, or at any time after, execution of this Agreement, Bank or JetPay may establish a reserve account at Bank or any other financial institution designated by Bank or JetPay "Reserve Account", for all future indebtedness of Merchant to Bank or JetPay that may arise out of or relate to the obligations of Merchant under this Agreement, including, but not limited to, Card Association fees, Chargebacks and processing fees, in such amount as Bank or JetPay from time to time may determine in its sole discretion. Bank or JetPay may fund the Reserve Account by deduction from payments due Merchant or a charge against Merchant's Operating Account or against any of Merchant's accounts at Bank. The initial amount of the reserve account along with other terms and conditions is provided for in Schedule B. The Reserve Account will be maintained for a minimum of six months after the date on which this Agreement terminates or until such time as Bank or JetPay determines that the release of the funds to Merchant is prudent, in the best interest of Bank and JetPay, and commercially reasonable, and that Merchant's account with Bank and JetPay is fully resolved. Upon expiration of this six-month period, any balance remaining in the Reserve Account will be paid to Merchant. Bank or JetPay will inform Merchant in writing of any charges debited to the Reserve Account during this six-month period.
10. Fees. Merchant agrees and shall pay Bank and JetPay all fees specified on Schedule A, as amended by Bank or JetPay from time to time.
11. Billing. All amounts Merchant owes Bank or JetPay 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 or JetPay holds for or on behalf of Merchant.
12. Security Interest. As security for the performance by Merchant of all of its obligations under this Agreement, Merchant hereby grants to Bank and JetPay a security interest in the funds held in the Operating Account and in the Reserve Account. Merchant will execute and deliver to Bank and JetPay such documents, in form satisfactory to Bank and JetPay, as Bank and JetPay may reasonably request in order to perfect Bank's or JetPay's security interest in the Operating Account and Reserve Account, and will pay all costs and expenses of filing the same or of filing this Agreement in all public filing offices, where filing is deemed by Bank and JetPay to be necessary or desirable. Bank and JetPay is authorized to file financing statements relating to the Operating Account and the Reserve Account without Merchant's signature where authorized by law.
12.1. Account Monitoring. Merchant acknowledges that Bank or JetPay will monitor Merchant's daily credit card transaction activity. Merchant agrees that Bank or JetPay may upon reasonable grounds, divert the disbursement of Merchant's funds and/or temporarily suspend processing under this Agreement and/or terminate this Agreement, and Bank or JetPay shall provide Merchant with notice of such action. Reasonable grounds shall include, but not be limited to, the following: suspicious or unusual transaction activity; material variance in the nature of Merchant's business, type of product and/or service sold, average ticket size, monthly volume or swiped/keyed percentages, from such disclosures made by Merchant in this Agreement; Merchant does not authorize transactions; Bank or JetPay receives excessive retrieval requests against Merchant's prior activity; excessive chargebacks are debited against Merchant's prior activity. If the Merchant's funds are diverted by Bank or JetPay or Bank or JetPay has temporarily suspended processing under this Agreement, such diversion or suspension shall be for any reasonable period of time required by Bank or JetPay to fully investigate Merchant's account activity and resolve, to Bank or JetPay's sole satisfaction, the subject questionable, suspect or fraudulent transactions or activity of Merchant. Any funds diverted shall be maintained by Bank or JetPay in a non-interest bearing account at Bank or JetPay. Bank or JetPay shall have no liability for any losses, either direct or indirect, which Merchant may attribute to any diversion of funds, suspension of processing or termination of this Agreement by Bank or JetPay pursuant to this paragraph.
13. Power of Attorney. Merchant appoints Bank and JetPay, as its attorney-in-fact to execute such documents as is 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 or JetPay
14. Equipment. In processing Transactions, Merchant shall use only equipment or software programs provided or approved by the Authorization Center or JetPay ("equipment") and related equipment installed or approved by JetPay, and the following additional terms:
This appointment is coupled with an interest and shall be irrevocable as long as Merchant owes any amount to Bank or JETPAY.
15. Documenting Transactions. Merchant shall submit the following information to JetPay and Bank or their designee in connection with Transaction processing:
Merchant shall not submit a Transaction to Bank or JetPay (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. Merchant shall not transmit any Transaction to Bank that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder. Merchant is responsible for its employees' actions. 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.
16. Authorization for Transactions. Merchant shall obtain Authorization for Transactions as follows:
17. Prohibited Transactions. Merchant shall not do any of the following with respect to any Transaction: Merchant shall comply with all bylaws, rules, regulations, policies, and/or guidelines of the Card Associations and any Issuer whose Cards are used to process Transactions in accordance with this Agreement.
Merchant will pay all Card Association fines, fees, penalties and all other assessments or indebtedness levied by Card Associations and/or regulatory agencies to Bank, which are attributable, at the Bank's discretion, to Merchant's transaction processing or business.
18. Prohibition of Furnishing Account Information. Merchant shall not, without the Cardholder's consent, sell, purchase, provide or exchange Card account number information in the form of Transaction documents, carbon copies of imprinted Transaction documents, mailing lists, tapes, journal rolls or other media obtained by reason of a Card to any third party.
19. Daily Reconciliation of Transactions.
20. 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 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 Bank the excess. Merchant shall make no cash refunds on Transactions and shall handle all credit adjustments as provided in this Section 21. If no refund or return will be given, Cardholder must be advised in writing that the sale is a "final sale" and "no returns" are permitted at the time of the Transaction. Cardholder also must be advised 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. Merchant 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.
21. Chargebacks. The acceptance by Bank or JetPay of any Transaction processed in accordance with the terms of this Agreement shall be with full recourse to Merchant if Merchant disagrees with Bank's or JetPay's decision to charge back a Transaction, Merchant must so notify Bank and JetPay in writing within ten (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 JetPay, if JetPay has indemnified Bank, takes legal action against Merchant for any Chargebacks or any amounts due Bank or JetPay hereunder, Merchant shall pay the costs and attorneys' fees incurred by Bank and/or JetPay, whether suit is commenced or not.
22. Merchant Statement. At least once per month, Bank or JetPay shall provide Merchant with a statement (the "Merchant Statement"). All information appearing on the Merchant Statement shall be deemed accurate and affirmed by Merchant unless Merchant objects by written notice specifying the particular item in dispute within thirty (30) days of the date of the Merchant Statement.
23. Retention of Original Sales Information. Merchant shall retain the information required by Sections 16 and 17(a) for seven (7) years from the date of the Transaction. At the request of Bank, Merchant shall provide such information to Bank or JetPay, as directed by Bank or JetPay, within five (5) days of receipt of a request from Bank or JetPay. Failure to meet such timeframe or non-delivery of any item or delivery of an illegible copy of an item requested by an Issuer shall constitute a waiver by Merchant of any claims and may result in an irrevocable Chargeback for the full amount of the Transaction.
24. Recovery of Cards. Merchant will use its best efforts to reasonably and peaceably recover and retain any Card for which Merchant receives notification of cancellation, restrictions, theft or counterfeiting. This notice may be given: (i) electronically through the equipment; (ii) by the Authorization Center through any means; or (iii) by listing on any canceled Card or restricted Card list. Merchant shall also take reasonable steps to recover a Card which it has reasonable grounds to believe is counterfeit, fraudulent or stolen.
25. Customer Complaints. Merchant shall respond promptly to inquiries from Cardholders and shall resolve any disputes amicably. If unresolved disputes occur with a frequency unacceptable to Bank or JetPay, Bank and JetPay may terminate this Agreement. Bank and JetPay reserve the right to charge Merchant reasonable fees and reimbursement on an account of excessive Cardholder inquiries, refunds or Chargebacks. Merchant agrees to maintain the following information in writing with respect to each claim or defense asserted by a Cardholder for which Merchant has received notice:
Upon request, Merchant shall furnish Bank and JetPay with this information in writing within ten (10) days.
26. Confidentiality. . Merchant shall treat all information received in connection with this Agreement as confidential. Merchant shall prevent the disclosure of this information including JetPay Merchant Statements, Schedule A and/or B for review to any competitor of JetPay except for necessary disclosures to affected Cardholders, to Bank, to JetPay and to Issuers.
27. Associations' and Issuers' Requirements. Merchant shall comply with all bylaws, rules, regulations, policies and/or guidelines of the Card Associations and any Issuer whose Cards are used to process Transactions in accordance with this Agreement. Merchant will display prominently at its place of business Approved Card Associations emblems and other promotional material and literature provided by Bank and JetPay directly or through JetPay. Subject to the prior written consent of Bank and/or JetPay and upon such conditions as authorized by Bank or JetPay, Merchant may use Card service marks or design marks in its own advertisement and promotional materials.
28. Compliance with Applicable Law. Merchant represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses to sell any product or provide any service it intends to offer, and that it is in compliance with the Telephone Disclosure and Dispute Resolution Act and the regulations of the Federal Trade Commission and the Federal Communications Commission. Merchant shall comply with all present and future federal, state and local laws and regulations pertaining to Transactions, including, without limitation, the Federal Fair Credit Reporting Act, the Federal Truth-in-Lending Act, the Electronic Fund Transfers Act and the Federal Equal Credit Opportunity Act, as amended.
29. Taxes. . Each party hereto shall report its income and pay its own taxes to any applicable jurisdiction. If Bank or JetPay are required to pay any taxes, interests, fines or penalties owed by Merchant, said amount shall become immediately due and payable by Merchant to Bank or JetPay. If excise, sale or use taxes are imposed on the Transactions, Merchant shall be responsible for the collection and payment thereof. Bank or JetPay shall be entitled to recover of any of said taxes paid by it on behalf of Merchant from Merchant immediately after payment.
30. Limitation of Liability. . In addition to all other limitations on the liability of Bank and JetPay contained in this Agreement, neither Bank nor JetPay shall be liable to Merchant or Merchant's customers or any other person for any of the following:
At no time will JETPAY'S liability exceed the amount of fees collected or reasonably expected to be collected from merchant for this delay period.
NEITHER BANK NOR JETPAY SHALL BE LIABLE FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE SERVICES TO BE PERFORMED BY BANK OR JETPAY PURSUANT TO THIS AGREEMENT. MERCHANT ACKNOWLEDGES THAT BANK HAS PROVIDED NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY EQUIPMENT AND THAT BANK HAS NO LIABILITY WITH RESPECT TO ANY EQUIPMENT. BANK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES IT PROVIDES HEREUNDER. SHOULD THERE BE ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS RESULTING FROM BANK'S OR JETPAY'S PERFORMANCE OR FAILURE TO PERFORM OF ANY KIND, BANK'S AND JETPAY'S LIABILITY SHALL BE LIMITED TO CORRECTING SUCH ERRORS IF COMMERCIALLY REASONABLE OR SUPPLYING SUCH OMISSIONS IN THE WORK PRODUCT IN WHICH THEY HAVE OCCURRED.
31. Limitation on Damages. In no case shall Merchant be entitled to recover damages from JetPay or Bank that exceed the fees retained by Bank and JetPay pursuant to this Agreement during the Three month period immediately prior to the event giving rise to the claim for damages.
32. Indemnification. Merchant agrees to indemnify and hold Bank and JetPay harmless from any and all losses, claims, damages, liabilities and expenses, including attorneys' fees and costs (whether or not an attorney is an employee of Bank or Bank's affiliates, JetPay or affiliates of JetPay) arising out of any of the following:
33. Credit Investigation and Bank Auditing. Bank or JetPay may audit, from time to time, Merchant's compliance with the terms of this Agreement. Merchant shall provide all information requested by Bank and JetPay to complete the audit. Merchant authorizes parties contacted by Bank or JetPay to release the credit information requested by Bank or JetPay, and Merchant agrees to provide Bank and JetPay a separate authorization for release of credit information, if requested. Merchant shall deliver to Bank and JetPay such information as Bank or JetPay may reasonably request from time to time, including without limitation, financial statements and information pertaining to Merchant's financial condition. Such information shall be true, complete and accurate. [Without limiting the generality of the foregoing, Merchant shall provide to Bank and JetPay its balance sheet and income statements not less frequently than every three calendar months during the term of this Agreement.]
34. Termination of Agreement by Bank and JETPAY. Bank or JetPay may terminate this Agreement upon at least thirty (30) days' prior written notice to the other parties. In addition, Bank or JetPay may terminate this Agreement without notice to Merchant under any of the below listed circumstances. Any such notice of termination by Bank is effective upon mailing.
Bank or JetPay may selectively terminate one or more of Merchant's approved locations without terminating this entire Agreement. In the event of termination, all obligations of Merchant incurred or existing under this Agreement prior to termination shall survive the termination. Merchant's obligations with respect to any Transaction shall be deemed incurred and existing on the transaction date of such Transaction.
35. Termination of Agreement by Merchant. Merchant may terminate this Agreement upon at least thirty (30) days' prior written notice to the other parties if Bank or JetPay amends Schedule A pursuant to Section 39 to increase the rates, fees or charges Merchant pays hereunder, except for fees or rates that result from a pass through from a Card Association or from Government taxes.
36. Setoff. In addition to any other legal or equitable remedy available to it in accordance with this Agreement or by law, Bank and/or JetPay may set off any amounts due to Bank and/or JetPay under this Agreement against any property of Merchant in the possession or control of Bank or JetPay.
37. Exclusivity Merchant shall submit, on an annual basis, not less than one-hundred percent (100%) of Merchant's total Transactions to Bank, unless Bank or JetPay indicates to Merchant that it cannot or will not process that number of Transactions for Merchant. Additionally, Merchant shall provide to Bank and JetPay the name and address of each other entity that Merchant elects to use to process Transactions, and copies of monthly statements from each such entity, in order to allow Bank and JetPay to verify compliance by Merchant with the foregoing requirement. In the event Merchant fails to submit to Bank and JetPay at least one-hundred percent (100%) of the total number of Transactions processed for or on behalf of Merchant during any twelve-month period during the term of this Agreement, Merchant: (i) acknowledges and agrees that the actual damages sustained by Bank or JetPay as a result of such failure would be difficult, if not impossible, to calculate with precision; and (ii) agrees to pay JetPay, as liquidated damages for such failure, an amount calculated as follows: Five hundred fifty dollars ($550.00) or formula below, whichever is greater.
The obligations of Merchant under this Section 38 shall survive any termination or expiration of this Agreement.
38. Amendments to this Agreement. From time to time Bank or JetPay may amend this Agreement as follows:
39. Assignment. This Agreement may not be assigned by Merchant without the prior written consent of Bank and JetPay. Bank or JetPay may assign this Agreement without limitation. Assignment of this Agreement by Bank shall relieve Bank of any further obligations under this Agreement.
40. Financial Accommodations. Bank, JetPay and Merchant intend this Agreement to be construed as a contract to extend financial accommodations for the benefit of Merchant.
41. Waiver. To the extent that Merchant becomes a debtor under any chapter of title 11 of the United States Code and such event does not result in the termination of this Agreement, Merchant hereby unconditionally and absolutely waives any right or ability that Merchant may otherwise have had to oppose, defend against or otherwise challenge any motion filed by Bank or JetPay for relief from the automatic stay of 11 U.S.C. § 362(a) to enforce any of Bank's or JetPay's rights or claims under this Agreement.
42. Cooperation. In their dealings with one another, each party agrees to act reasonably, in good faith, and to fully cooperate with each other in order to facilitate and accomplish the transactions contemplated hereby. Merchant agrees to allow JetPay to use their name in proposals, brochures, banners, and press releases, which may be used to promote JetPay.
43. Entire Agreement. This Agreement, together with the Schedules attached hereto, supersedes any other agreement, whether written or oral, that may have been made or entered into by any party (or by any officer or officers of any party) relating to the matters covered herein and constitutes the entire agreement of the parties hereto.
44. Severability. If any provisions of this Agreement shall be held, or deemed to be, or shall in fact be, inoperative or unenforceable as applied in any particular situation, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses or sections herein contained shall not affect the remaining portions of this Agreement or any part hereof.
45. Notices. Except for notices provided by Bank or JetPay to Merchant on the Merchant Statement, all notices, requests, demands or other instruments which may or are required to be given by any party hereunder shall be in writing and each shall be deemed to have been properly given when (i) served personally on an officer of the party to whom such notice is to be given, (ii) upon expiration of a period of three (3) Business Days from and after the date of mailing thereof when mailed postage prepaid by registered or certified mail, requesting return receipt, or (iii) upon delivery by a nationally recognized overnight delivery service, addressed as follows:
If to BANK:
Address listed on Acquirer Discloser
With a Copy to:
If to JETPAY:
ATTN: Risk Manager
3361 Boyington Dr. Suite 180
Carrollton TX 75006
If to MERCHANT:
Address listed on Merchant Application
Any party may change the address to which subsequent notices are to be sent by notice to the others given as previously mentioned.
46. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to internal principles of conflict of laws, and federal law.
47. Captions. Captions in this Agreement are for convenience of reference only and are not to be considered as defining or limiting in any way the scope or intent of the provisions of this Agreement.
48. No Waiver. Any delay, waiver or omission by Bank or JetPay to exercise any right or power arising from any breach or default of the other party in any of the terms, provisions or covenants of this Agreement shall not be construed to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the other party. All remedies afforded by this Agreement for a breach hereof shall be cumulative.
49. Force Majeure. The parties shall be excused from performing any of their respective obligations under this Agreement which are prevented or delayed by any occurrence not within their respective control including but not limited to strikes or other labor matters, destruction of or damage to any building, natural disasters, accidents, riots or any regulation, rule, law, ordinance or order of any federal, state or local government authority.
50. ACH Processing. When requested by Merchant, JetPay will also provide ACH processing services at the rates specified in Schedule A. Merchant agrees that information supplied in this application may be used to establish a separate ACH account. If this service is requested, Merchant understands that a personal credit review may be deemed necessary and authorizes such an action. Merchant agrees that Bank and JetPay will deduct processing 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 Bank or JetPay the amount of any fees, charges or penalties assessed against Bank or JetPay. Merchant agrees to abide by all National Automated Clearing House Association (NACHA) rules and regulations governing ACH processing and use of their networks.
51. Honoring Cards.(a) Merchant will accept all valid Cards when properly presented by Cardholders in payment for goods or services, subject to American Express, Visa, MasterCard and/or Discover Network rules and/or regulations requiring Merchant to elect whether it will accept credit only, debit only or both debit and credit Cards. Merchant may not (i) indicate or imply that the Card Associations endorses any Merchant goods or services, (ii) refer to a Card Association in stating eligibility for Merchant's products, services or membership, or (iii) use any marks, symbols or logos owned by any Card Association for any purpose other than those permitted in the Card Association Operating Rules.
52. Important Merchant Responsibilities.