Mcardit Merchant Agreement - Mcardit Verified Customer Payment Platform

Mcardit Merchant Agreement

This (“Agreement”) governs the relationship between you, the “Merchant” named on any Mcardit Agreement Application (“Application”) to which these Terms and Conditions are attached and Mcardit, LLC, a California company with its principal place of business at 26391 Crown Valley Parkway, Suite 240, Mission Viejo, CA 92691 (“Mcardit”). Merchant agrees to be bound by the terms of this Agreement as stated herein. Each of the individuals signing this Agreement and the Application represents and warrants that he or she has the full power and authority to bind the party (Merchant) identified above or below his or her name.

1.0 INTRODUCTION

1.1 PAYMENT CONDUIT

Mcardit is a non-card payment conduit that connects Merchants to their Customers (Mcardit Registered “User”) for the purpose of facilitating Automated Clearing House (ACH), Real Time Payment (RTP) or Fed Now, collectively “payments”. To accomplish this Mcardit sends notification to one of its integrated Third Party Processors (ITPP) or Integrated Financial Institutions (IFI) to debit or credit a User based upon a Merchant Originating an authorized transaction. Mcardit keeps track of each transaction within its platform ledger.

1.2 MERCHANT PLATFORM REGISTRATION

Mcardit requires each Merchant to successfully complete its platform registration. As part of the registration process Merchant must: (1) agree to Mcardit Schedule A Fees, (2) complete an online application, (3) agree to terms and conditions of the agreement, (4) execute the agreement and (5) be approved by an ITPP, IFI or introduce a TPP or FI to Mcardit which Mcardit subsequently agrees to integrate with.

1.3 MERCHANT PLATFORM ACCESS

Mcardit provides each Merchant with platform access via a distinct login to the primary Merchant contact, “the Administrator”. The Administrator is responsible for adding, deleting and maintaining authorized access within the Merchant Platform Account. The Administrator is responsible for the conduct of each sub-user.

1.4 PAYMENT PROCESSING

As a conduit, Mcardit facilitates payments between a User and Merchant. Mcardit connects Merchants to one its integrated Third Party Processors (ITPP) or Integrated Financial Institutions (IFI). The ITPP or IFI act as the Originating Depository Financial Institution (“ODFI”). The Merchant acts as the “Originator” of each transaction. The ITPP or IFI will debit funds (“Debit Entry”) for the purpose of collecting Payments from the accounts of the Merchant’s customers (“Receivers”) and/or credit funds (“Credit Entry”) for the purpose of paying the Merchant’s accounts receivable in accordance with the terms of this Agreement, the Operating Rules (“Rules”) of the National Automated Clearing House Association (“NACHA”), and applicable federal, state and local laws or regulations governing ACH transactions (collectively, “Regulations”).

1.5 MERCHANT BANK ACCOUNT AND AUTHORIZATION

Merchant shall, at all times, maintain an account at a bank that is a member of the Federal Reserve ACH System (“Account”). Merchant expressly authorizes Mcardit to notify the FI, ITPP or TPP of a Merchant Originated debit and/or credit the Account designated by Merchant according to the terms of this Agreement. Merchant further authorizes Mcardit to notify the FI, ITPP or TPP to process electronic funds transfers as a Third Party Processor through the Account designated by Merchant. Merchant represents and warrants that it shall, at all times, maintain a sufficient balance in the Account to cover all obligations owed to Mcardit, the FI, ITPP or TPP, including, but not limited to, all Entries originated by Merchant, returned Entries, chargebacks, fees, fines, and all other obligations owed to Mcardit, the FI, ITPP or TPP and Merchant authorizes Mcardit to debit its Account for all amounts owed to Mcardit, the FI, ITPP or TPP. Merchant shall bear all risk of loss, without warranty or recourse to Mcardit, the FI, ITPP or TPP for the amount of any transaction, or other amounts due Mcardit, the FI, ITPP or TPP (including Mcardit, the FI, ITPP or TPP actual costs and expenses) due to ACH returns of any kind, whether for customer chargebacks or unauthorized returns, insufficient funds, administrative or corporate returns, or any other type of returns. Merchant acknowledges and expressly agrees that this authorization applies with the same force and effect to any new bank account information for Merchant that Mcardit, the FI, ITPP or TPP obtains at a future date, regardless of the timing, reason or manner in which Mcardit obtains information about other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to Mcardit, the FI, ITPP or TPP or bank account(s) for Merchant that Mcardit, the FI, ITPP or TPP identifies through its own lawful research or investigation), and Merchant expressly agrees that Mcardit, the FI, ITPP or TPP may debit any such account held by, or on behalf of Merchant, in order to satisfy any of Merchant’s obligations to Mcardit, the FI, ITPP or TPP. Merchant shall provide new Account information to Mcardit, the FI, ITPP or TPP, in writing, at least 10 days prior to closing or changing the Account designated in this Agreement. This authorization shall survive the termination of this Agreement and shall continue in perpetuity until all of Merchant’s obligations to Mcardit, the FI, ITPP or TPP are paid in full, including, but not limited to, those obligations described in this Agreement.

1.6 CANCELLATION

Either party may cancel this Agreement with 60 days’ written notice to the other party, subject to the terms and limitations set forth in the TERM AND TERMINATION paragraph of this Agreement. Mcardit may also immediately cancel this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of Mcardit, the FI, ITPP or TPP’s ODFI or any regulatory agency, regardless of the reason for the request; (2) if Mcardit, the FI, ITPP or TPP, its ODFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Rules or Regulations and/or has initiated any unauthorized Entries; or (3) if Mcardit, the ITPP or IFI is unable to process transactions for Merchant for any reason that is out of Mcardit, the ITPP or IFI’s control or Mcardit, the ITPP or IFI no longer has the ability to process transactions for Merchant.

1.7 CONSUMER CREDIT INQUIRIES

A credit report may be made in connection with this Application and Agreement. Merchant and the individuals signing this Agreement on behalf of the Merchant, including any Guarantors, authorize Mcardit or any credit bureau or any credit reporting agency employed by Mcardit or any agents of Mcardit to investigate the references provided or any other statements or data obtained from the Merchant, or any of the above principals, for the purpose of this Application and Agreement. Merchant also authorizes Mcardit to obtain additional credit reports regarding Merchant on an annual basis, unless Mcardit in its sole and absolute discretion, determines that it is necessary for Mcardit to periodically obtain Merchant’s credit report on a more than annual basis, in which case Merchant authorizes Mcardit to obtain such additional credit reports. Notwithstanding anything in this paragraph, Merchant authorizes Mcardit to obtain a credit report regarding Merchant if Merchant requests increased processing amounts or parameters, or if Merchant originates sporadic transactional volume.

1.8 CONSUMER FINANCIAL TRANSACTIONAL DATA INQUIRIES

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2.0 MERCHANT RESPONSIBILITIES

2.1 AUTHORIZATION

Mcardit Merchants must obtain authorization from Receivers pursuant to the requirements of the Rules and applicable Regulations prior to debiting and/or crediting Receivers’ (Mcardit User) accounts. Authorization must be for a specific amount and frequency. Mcardit enables three (3) types of authorization:

a single (one-time) entry for [[date and amount]]
recurring entries (that recur at substantially regular intervals without my affirmative action to initiate future entries) [[interval and amount]]
subsequent entries (initiated under the terms of my standing authorization) that require my affirmative action to initiate those future entries

Merchants utilizing an external platform (shopping cart, POS or external billing platform) to maintain copies of the authorizations for a period of 2 years from the termination or revocation of the authorization.

2.2 AUTHENTICATION

Merchant agrees that Mcardit may adjust processing fees and/or add authentication services without prior notice if Merchant experiences a return rate outside the NACHA return thresholds, as determined by Mcardit in its sole and absolute discretion, or if Mcardit deems the authentication process Merchant subscribes to is not adequate for standards determined by Mcardit. Mcardit at its sole and absolute discretion will determine the standards of authentication and the rate of return acceptable for Merchant. Nothing herein limits the Merchant’s obligation to comply with the Rules and all applicable Regulations.

2.3 REPRESENTATIONS REGARDING AUTHORIZATION

Merchant represents and warrants with respect to all Entries originated by Merchant and processed on the Mcardit platform for Merchant that (1) each Receiver has authorized the debiting and or crediting of its account, (2) each Entry is for an amount agreed to by the Receiver, and (3) each Entry is in all other respects properly authorized. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify, and hold harmless Mcardit for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of, or involving any breach of these representations and warranties or unauthorized Entries. These representations and warranties by Merchant shall survive termination of the Agreement. Merchant acknowledges and agrees that, from time to time, another person or entity may submit or modify transactions on behalf of the Merchant, including, without limitation, owners, principals, employees, officers, accountants or other designated third parties. Such a person or entity is referred to herein as a “Merchant Administrator.” Merchant expressly agrees that the IFI or ITPP may also be considered Merchant Administrator. Merchant agrees that all actions of a Merchant Administrator will be deemed to be actions by Merchant under this Agreement, and Merchant accepts full responsibility and liability for any and all acts and/or omissions of a Merchant Administrator, including, but not limited to, acts of negligence (whether active, passive, or gross negligence) and intentional or fraudulent acts.

2.4 IDENTIFYING NUMBERS

Merchant understands and agrees that Mcardit may rely solely on identifying numbers provided by Merchant to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by Merchant. In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant shall defend, indemnify, and hold harmless Mcardit for any claims, losses, liabilities, costs, or expenses suffered or incurred (including attorneys’ fees and costs) as a result of an incorrect account or other identification.

2.5 REGULATORY COMPLIANCE

Merchant bears the final responsibility to ensure that Merchant’s policies and procedures meet the requirements of the ACH Rules and all applicable Regulations.

2.6 TAX NAME AND TAX ID

Merchant shall provide to Mcardit its correct and accurate tax filing name and tax identification number for the U.S. Internal Revenue Service (“IRS”). In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant bears all liability and agrees to defend, indemnify and hold harmless Mcardit including all of their directors, officers, employees and affiliates, from any and all claims, liabilities, losses, damages, fines, costs or other expenses (including attorneys’ fees and costs) suffered or incurred arising out of, relating to or involving in any way Merchant’s failure to provide an accurate tax filing name or tax identification number.

2.7 SALES TAX REPORTING OBLIGATIONS

Merchant acknowledges that it is solely responsible for sales tax filing, reporting and payment with each applicable jurisdiction for whom the Mcardit platform is used to process transactions under this Agreement.

2.8 RECORDKEEPING REQUIREMENTS

The Mcardit platform is a transactional ledger that provides a real-time and historical view of each transaction, but not meant to replace or stand in lieu of a Merchant record keeping requirements. Each Merchant shall keep all records of verifiable consumer authorizations for a period of two (2) years from the date an authorization is terminated or revoked. Merchant agrees to provide copies of such documents or records to Mcardit immediately upon written request from Mcardit.

2.9 NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFER

Merchant agrees to promptly and regularly review all Entries and other communication received from Mcardit and to immediately notify Mcardit if there are any discrepancies between Merchant’s records and those provided by Mcardit, the ITPP, IFI or Merchant’s bank, or with respect to any transfer not authorized by Merchant. If Merchant fails to notify Mcardit within 7 days of the date Mcardit emails, mails, or otherwise provides a statement of account or other report of activity to Merchant, then Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.

2.10 INDEMNITY

In addition to all other indemnity obligations contained elsewhere in this Agreement, Merchant agrees to defend, indemnify and hold harmless Mcardit including all of their directors, officers, employees and affiliates, from and against any and all claims, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of the representations and warranties made by Merchant in this Agreement, the failure of Merchant or a Merchant Administrator to comply with the terms of the Agreement, the failure of Merchant or a Merchant Administrator to comply with the Rules, or any and all other applicable laws or Regulations, or by reason of Mcardit providing the services set forth in this Agreement. This paragraph shall survive termination of the Agreement.

3.0 MCARDIT RESPONSIBILITIES

3.1 ACCEPTING TRANSACTIONS

Mcardit will only be responsible for sending notifications for processing Entries that have arrived at its premises in proper format and on a timely basis. Mcardit will advise Merchant of any applicable cut-off time. Merchant does not have the right to cancel or amend any entry after submission to the ACH, RTP or FedNow Networks.

3.2 ORIGINATING TRANSACTIONS

Mcardit will use the information provided by Merchant to notify the ITPP or IFI to originate Entries to the ACH, RTP or FedNow Network. Merchant acknowledges and agrees that Mcardit or its ITPP or IFI may reject Entries for any reason permitted or required by the Rules or applicable Regulations. Merchant also acknowledges and agrees that Entries or files may be rejected which exceed the threshold parameters identified and set for Merchant. Merchant also acknowledges and agrees that an Entry may be rejected if the Entry would cause Mcardit, its ITPP or IFI to violate any Federal Reserve or other regulatory risk control program, any other applicable Rule or Regulation, or ITPP or IFI’s agreement with its ODFI. At Merchant’s request, Mcardit will make reasonable efforts to reverse, modify, or delete an Entry, but will have no responsibility for the failure to comply with that request.

3.3 RETURNED ENTRIES AND NOCS

Mcardit, ITPP or IFI will apply returned Entries to Merchant’s Account when they are received. As described elsewhere in this Agreement, if Merchant does not have funds available in its designated Account sufficient to cover all returned Entries, Merchant acknowledges and agrees that Mcardit will notify ITPP or IFI to debit any other bank account identified by Merchant to Mcardit’s ITPP or IFI (regardless of the timing, method or reason Merchant identified such account to ITPP or IFI). Mcardit will create and make available to Merchant a report containing detailed information about returned Entries. If Merchant requests that the returned Entries be provided electronically, Mcardit’s ITPP or IFI may do so according to the Rules and Regulations regarding returned Entries. Merchant is solely responsible for all returned Entries.

3.4 SETTLEMENTS AND FINALITY

Merchant’s account will settle in accordance with the funding schedule set for Merchant. The standard settlement cycle date is the second business day from the effective Entry date. If any Entry is returned beyond the settlement date, Mcardit’s ITPP or IFI will, at their sole and absolute discretion, either apply the debit to the current day’s settlement, or debit the Merchant’s account for the amount of the returned Entry. If sufficient funds to cover returned Entries are not available in Merchant’s Account, Merchant shall immediately remit payment to Mcardit or it’s ITPP or IFI to fully cover the amount of all returned Entries. As described elsewhere in this Agreement, Merchant agrees that, to fully cover all returned Entries, Mcardit’s ITPP or IFI may also debit any other bank account for Merchant about which it has account information, regardless of the timing, reason or manner in which Mcardit’s ITPP or IFI obtained information about the other bank account(s) for Merchant (including, but not limited to, bank account(s) that Merchant identifies to Mcardit’s ITPP or IFI or bank account(s) for Merchant that Mcardit ITPP or IFI identifies through its own lawful research or investigation).

3.5 NO WARRANTY

Merchant acknowledges and agrees that neither Mcardit nor its ITPP or IFI has control over the conditions under which Merchant uses the payment processing system and does and cannot warrant the results obtained by such use. MCARDIT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR MCARDIT’S SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MCARDIT DOES NOT WARRANT THAT OPERATION OF THE PAYMENT PROCESSING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. MERCHANT ACKNOWLEDGES THAT THE PAYMENT PROCESSING SYSTEM IS PROVIDED FOR USE BY MERCHANT “AS IS.” MERCHANT FURTHER ACKNOWLEDGES THAT MCARDIT BEARS NO RESPONSIBILITY FOR THE MERCHANT WEB SITE(S). MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY MCARDIT THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO MERCHANT FOR THE AUTHORIZED TRANSACTION. MERCHANT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.

3.6 LIMITS OF LIABILITY

Mcardit will be responsible for the notification of transactions to its ITPP or IFI and posting of said transactions to the Merchant’s platform ledger in accordance with the terms of this Agreement and the Rules and applicable Regulations. Mcardit will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, banks, communication providers, common carriers, or clearing houses through which Entries may be passed and or originated. Mcardit is not responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, intervening negligent, criminal, or tortious acts of third parties who are not within Mcardit’s control or employ, legal constraints or other events beyond the control of Mcardit. Mcardit shall not be liable to Merchant for any delays in receipt or transmittal of funds or errors in credit or debit entries caused by third parties, including, without limitation, the Automated Clearing House, any depository financial institution, or any agent of Merchant.

4.0 ADDITIONAL TERMS AND CONDITIONS

4.1 FEES AND PAYMENT

Mcardit fees are reflected on Merchant’s Schedule A as of the date of Merchant’s signed acceptance. Notice of any changes to the existing fee structure as stated in this Agreement (including new or increased fees) will be made in writing to Merchant within 30 days of such changes or any new fees becoming effective. Merchant has the right to cancel the Agreement in writing at that time. Continued use of the services provided by Mcardit after notice of fee changes is provided to Merchant shall constitute Merchant’s agreement to any new or changed fees. In addition to the fees previously agreed upon by Merchant in the “MCARDIT Services Proposal,” Merchant shall pay the fees to Mcardit set forth below:

Return Fees: If Merchant returns a transaction initiated by Mcardit’s ITPP or IFI and the transaction is in accordance with this Agreement, Merchant will be charged a $35.00 return fee per occurrence. Mcardit or its ITPP or IFI, in their sole and absolute discretion, may suspend settlements for Merchant until payment for returned Entries or return fees is fully remedied.

Chargeback and High Return Rate Fees: If, at the time Merchant is billed for chargebacks, Merchant’s High Risk or Unauthorized Return Rate exceeds 0.5% using a NACHA approved method of calculation, a high-risk surcharge of $15.00 will be added to each chargeback received during that billing period and an additional 1.0% discount rate will be added to Merchant’s Account, to be charged retroactively for the previous 30 days.

Attorneys’ Fees: If Merchant becomes obligated to pay Mcardit’s attorneys’ fees pursuant to any provision in of this Agreement, such fees shall include in-house counsel fees at the rate of $400 per hour, as well as the actual hourly rate for outside counsel.

Payment: Mcardit reserves the right to charge its fees on a per transaction basis or aggregated basis or combination of the two. Mcardit will notify Merchant in writing of any changes to the method used to collect its fees. .Merchant agrees that Mcardit may collect any and all amounts due by Merchant, including, without limitation, all fees set forth in the Application and this Agreement, returned Entries, chargebacks, refunds or credits issued to Receivers, fines, damages or costs and expenses incurred by Mcardit to perform services for Merchant (including attorneys’ fees and costs to enforce any of Merchant’s obligations under this Agreement), by billing Merchant, debiting Merchant’s Account, debiting the Reserve Account or debiting any other bank account for Merchant about which Mcardit obtains account information. Merchant shall provide Mcardit the information necessary to collect all amounts owed by Merchant under this Agreement or the Rules or applicable Regulations. Merchant will be responsible for any and all attorneys’ fees and other costs and expenses Mcardit may incur in collecting any fees or other amounts Merchant owes to Mcardit.

4.2 VOLUME ANALYSIS

Mcardit and its ITPP or IFI will routinely analyze Merchant origination and return activity. Mcardit, ITPP or IFI shall have the right to modify approved volume, transactional or credit thresholds provided to Merchant.

4.3 CONFIDENTIALITY

Each party represents, warrants, and mutually agrees that all information concerning the other party which comes into its possession during the term of this Agreement shall be maintained as confidential and shall not be used or divulged to any other party except as necessary to permit the activities contemplated under this Agreement or as required by law. Notwithstanding the foregoing, it shall not be a breach of this Confidentiality provision for Mcardit to disclose Merchant’s confidential information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided Merchant has been given prior notice to the extent not prohibited or requested by the government agency or Court Order and Mcardit has sought all available safeguards against widespread dissemination prior to such disclosure.

4.4 GOVERNING LAW AND VENUE

This Agreement, all questions related to the Agreement’s validity, interpretation, performance, execution and inducement, and all claims related to, arising under, or involving in any way this Agreement, the services by Mcardit, or Merchant’s business relationship with Mcardit, or Merchant’s business relationship with Mcardit are governed by, and shall be construed under, the laws of the State of California without regard for the principles and conflicts of law. All such claims shall exclusively be adjudicated in a State or Federal Court located in Orange County, CA, which the parties agree has exclusive personal jurisdiction over them and is the proper venue. The parties waive any objections to personal jurisdiction or venue in Orange County, CA. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs (including expert witness fees and costs) incurred in the matter.

4.5 JURY TRIAL WAIVER

MCARDIT AND MERCHANT BOTH IRREVOCABLY WAIVE A TRIAL BY JURY UNDER BOTH STATE AND FEDERAL LAW IN ANY ACTION, LAWSUIT, OR DISPUTE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, MCARDIT’S SERVICES, OR THE TRANSACTIONS RELATING TO SUBJECT MATTER OF THIS AGREEMENT.

4.6 AGREEMENT MODIFICATION

Mcardit may modify the terms and conditions of this Agreement upon sixty (60) days’ written notice. Use of services after any such modification will evidence acceptance of the modification(s).

4.7 NOTICES

Each notice required by this Agreement shall be in writing and will be effective when sent unless notice is provided by First Class Mail, return receipt requested, which shall be effective when received. Notice may be provided by:

(1) To Merchant: (a) by First Class Mail, return receipt requested, at the Merchant’s business address listed in this Agreement or on the Mcardit Enrollment Form. (b) by facsimile at Merchant’s fax number currently on file. (c) by electronic mail at the Merchant’s email address currently on file. (d) by posting notice to the Merchant Portal, which shall be effective at the next Merchant login to the Merchant Portal.

(2) To Mcardit: (a) by First Class Mail, return receipt requested to 26391 Crown Valley Parkway, Suite 240, Mission Viejo, CA 92691 or (b) by email to support@mcardit.com with a copy to compliance@mcardit.com

4.8 TERM AND TERMINATION

This Agreement is effective from the date hereof and shall continue for a term of one (1) year. Thereafter, this Agreement shall be automatically renewed for consecutive one (1) year periods unless either party gives the other written notice of non-renewal at least 60 days prior to the expiration date of the current term. This Agreement may be terminated by Mcardit at any time with sixty (60) days’ written notice or as otherwise provided by the terms of this Agreement. If Merchant wants to terminate the Agreement before the initial one-year term or any renewal term has expired, Merchant shall give Mcardit sixty (60) days written notice of Merchant’s intent to terminate the Agreement. MCARDIT must approve the Merchant’s request for early termination in writing, which approval will not be unreasonably withheld. Notwithstanding Mcardit’s rights to cancel this Agreement as stated elsewhere in this Agreement, MCARDIT may also immediately terminate this Agreement and immediately suspend all processing for Merchant without providing advance written notice to Merchant: (1) upon the request of Mcardit’s ITPP or IFI or any regulatory agency (regardless of the reason for the request); (2) if Mcardit, its ITPP, IFI or any regulatory agency believes that Merchant has breached this Agreement, has breached any representations and warranties made in this Agreement, is violating or has previously violated any applicable Regulations or Rules and/or has initiated any unauthorized Entries; or (3) if Mcardit, its ITPP or IFI is unable to process transactions for Merchant for any reason that is out of Mcardit’s control or Mcardit no longer has the ability to process transactions for Merchant. Immediately upon termination of the Agreement, whether by expiration or otherwise and whether or not the Agreement was terminated for cause, Mcardit’s obligation to provide services under the Agreement shall cease, and any unpaid amounts due and owing by Merchant shall become immediately due and payable. Payment for any services rendered or any other obligation or liability owing at the time of termination shall not be affected by termination of this Agreement. At the time of termination, Mcardit’s ITPP or IFI may place all unsettled funds due to be settled into a Reserve Account to be released in accordance with the RESERVE BALANCE paragraph of this Agreement.

4.9 DAMAGE WAIVER

Mcardit will not be liable to Merchant for any special, consequential, indirect, or punitive damages whether or not: (1) any claim for these damages is based on tort or contract law, or (2) either party knew or should have known the likelihood of these damages in any situation. Mcardit makes no representations or warranties other than those expressly made in this Agreement.

4.10 RESERVE ACCOUNT

Mcardit’s ITPP or IFI may require a Merchant Reserve Account. The conditions of each Merchant Reserve Account reside solely with Mcardit’s ITPP or IFI. Merchant agrees to absolve Mcardit from any and all Merchant Reserve Account responsibility.

4.11 FUNDING POLICY

Merchant acknowledges and agrees that funding for each origination will be set by Mcardit’s ITPP or IFIat their sole and absolute discretion. Unless expressly agreed to in writing the amount disbursed will be the origination amount less returned items and any reserve amount as required. Mcardit’s ITPP and IFI reserve the right to change the funding schedule, average balance requirements or reserve requirements at its sole and absolute discretion for any Merchant regardless of SEC type.

4.12 AUDIT REQUIREMENTS

Mcardit and its ITPP or IFI shall have the right to audit Merchant concerning its compliance with the Rules and applicable Regulations.

4.13 CUSTOMER SERVICE

Merchant agrees to maintain, support and staff a customer service line with a U.S. domiciled telephone number during normal U.S. business hours. If Merchant fails to maintain a working customer service telephone line, then Mcardit will, at its sole discretion, process customer services call on behalf of Merchant at a charge of $5.00 per inbound/outbound call and $5.00 per refund processed.

4.14 NON-SOLICITATION

Merchant agrees that, without Mcardit’s prior written consent, it will not, for a period of (1) year from the date this agreement is terminated, directly or indirectly solicit for employment, or employ any person who is now employed by Mcardit.

4.15 ENTIRE AGREEMENT

This Agreement makes up the entire Agreement between the parties concerning Mcardit services and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions whether oral or written of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement. There are no third-party beneficiaries of this Agreement.

4.16 SEVERABILITY

In the event any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, only that provision shall be severed from this Agreement and the remaining provisions shall continue in force, provided that each Party preserves the substantial benefits of the bargain contemplated in this Agreement.

4.17 INTERPRETATION; WAIVER

Any waiver by a party of a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. The parties agree that, should any provision or term of this Agreement require interpretation or construction, this Agreement will be interpreted or construed without any presumption that the provisions of this Agreement are to be construed against the party that prepared this Agreement.

4.18 ASSIGNMENT

Mcardit shall have the right to assign this Agreement, including its rights and performance obligations under the Agreement, to any corporation or other entity which Mcardit may hereafter merge or consolidate, or to which Mcardit may transfer all or substantially all of its assets provided such corporation or other entity assumes all of Mcardit’s obligations hereunder. Upon assignees or transferee’s assumption of Mcardit’s obligations pursuant to this Agreement, Mcardit shall have no further liability to Merchant and Merchant shall look solely to any assignee or transferee for performance of any and all obligations arising under or related to this Agreement.

4.19 EXECUTION IN COUNTERPARTS’ COPIES

This Agreement, including all Exhibits and Addendums thereto (which are incorporated as part hereof) may be executed in the original or by facsimile or e-mail in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and photocopies of this Agreement shall be considered originals for all purposes, including, but not limited to, any court or arbitration proceedings. Merchant acknowledges that they may not receive a countersigned Agreement, exhibits or addendums from Mcardit unless such countersigned Agreement is requested by Merchant in writing. Acceptance of all terms and conditions is upon Mcardit’s receipt of the agreement executed by Merchant.

4.20 BINDING CONTRACT

This Agreement shall be binding on both parties only upon execution by an authorized representative of Mcardit.

5.0 PERSONAL GUARANTY

To endure and in consideration of Mcardit’s acceptance of the Merchant Application and this Agreement, the undersigned absolutely and unconditionally guarantees to Mcardit full and prompt payment and performance when due of each any every condition and obligation of Merchant under this Application and Agreement, including all exhibits and amendments thereto. The undersigned guarantor(s) further acknowledges and agrees to pay all expenses of collection on this guaranty, including reasonable attorneys’ fees incurred by reason of the default of the Merchant or the default of the guarantor(s). The undersigned guarantor(s) waives prior demand on Merchant. Mcardit shall not be required to first proceed against Merchant to enforce any other remedy before proceeding against the undersigned personal guarantor(s). This is a continuing and irrevocable guaranty which shall not be discharged or affected by the death of the undersigned, shall bind heirs, administrators, representatives and assigns and may be enforced by or for the benefit of any other successor of Mcardit. The term of this personal guaranty shall be for the duration of the Agreement, and any other addendum or amendment thereto, and shall guarantee all obligations which may arise or accrue during the term thereof although enforcement may be sought subsequent to any termination.

6.0 MERCHANT ORIGINATOR ACKNOWLEDGMENT

Merchant assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to abide by the terms and conditions of Mcardit’s ITPP or IFI as per their respective Merchant Agreements.

Mcardit, LLC
26391 Crown Valley Parkway, Suite 240
Mission Viejo, CA 92691

e. support@mcardit.com

v1.1 updated September 1, 2023