Commercial Entity Agreement For Wells Fargo

This Commercial Entity Agreement (“Agreement”) is provided to all users of the payment services (the “ShootProof Services”) of ShootProof, LLC that are required to enter into a Commercial Entity Agreement in accordance with the ShootProof Seller Agreement (the “Seller Agreement”) or the Card Organization Rules for the acceptance of card payments as a “Commercial Entity” (as such term is defined by the Card Organizations). As such an entity, the seller signing or electronically agreeing to the terms hereof (the “Merchant”) is entering into a separate legally binding contract with Wells Fargo Bank, N.A. and Wells Fargo Merchant Services, L.L.C. (collectively, “Member”) to govern the authorization, conveyance and settlement of Transactions utilizing the ShootProof Service. In this Agreement “we”, “us” and “our” refer to Member and “you” or “your” shall refer to the Merchant. Member shall be a third-party beneficiary of, and may enforce any provisions of, or cease providing card processing services under, the Seller Agreement.

By signing agreeing to this Agreement (by “click through” agreement or otherwise) you agree to the terms and conditions of this Agreement and any documents incorporated by reference, including the Card Organization Rules. Merchant further agrees that this Agreement forms a legally binding contract between Merchant and Member. Any rights not expressly granted herein are reserved by Member.

1. 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.

“Customer” is the person or entity to whom a Card is issued or who is otherwise authorized to use a Card.

“Card” is a credit, debit, prepaid, or gift card bearing the logo of a Card Organization.

“Card Organization” is Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC and each of their respective affiliates.

“Card Organization Rules” are the bylaws, rules, and regulations, as they exist from time to time, of the Card Organizations.

“Cardholder Data” is the Customer’s Card account number, expiration date, and CVV2.

“Security Standards” are all rules, regulations, standards or guidelines adopted or required by the Card Organizations or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Cardholder Data, 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, 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.

“Transaction” is a transaction conducted between a Customer and Merchant utilizing a Card in which consideration is exchanged between the Customer and Merchant.

2. Purpose of this Agreement.

By entering into this Agreement, Merchant is fulfilling the Card Organization Rules requiring a direct contractual relationship between the Member and Merchant, and Merchant is agreeing to comply with Card Organization Rules as they pertain to payments Merchant receives through the ShootProof Service.

3. Card Organization Rules.

You agree to comply with all requirements of this Agreement, applicable Card Organization Rules and such other procedures as ShootProof and/or Member may from time to time prescribe relating to your acceptance of Cards. Without limiting the generality of the foregoing, Merchant agrees to each of the following requirements and restrictions:

A. Bona Fide Transactions. You shall not submit any Transaction that is not a bona fide Transaction. A “bona fide” Transaction means a Transaction that is (i) between you and the Customer, (ii) for the sale of goods and/or services (or a refund for such a sale) that are your property or that you have the legal right to sell, (iii) submitted on behalf of you (and not on behalf of any third party), and (iv) legal, authorized by the Customer, non-fraudulent or otherwise damaging to the Card Organization(s), and is, to your knowledge, enforceable, collectible, and in full compliance with this Agreement, applicable law, or Card Organization Rules.

B. Split Transactions. You agree to submit a single Transaction for the full amount of each sale, except to the extent you and the Customer agree on a partial shipment of a product, or where the Transaction qualifies for delayed delivery or special order deposits (such as partial shipments based on inventory on hand), in which cases a sale may be split into multiple Transactions.

C. Minimum or Maximum/Surcharges; Taxes. You agree that you shall not set minimum or maximum Transaction amounts or impose surcharges as a condition of honoring Cards. You may not add tax to any Transaction unless so permitted by applicable law, and in such case, only if included in the Transaction amount and not collected separately.

D. Card Organization Marks. You are authorized to use the Card Organization’s logos or marks only on your promotional materials and website to indicate that such Card Organization cards are accepted as funding sources for ShootProof Transactions.

E. Cash Advances. You shall not disburse or advance any cash to a Customer (except as authorized by the Card Organization Rules) or to yourself or any of your representatives, agents, or employees in connection with a Transaction, nor shall you accept payment for effecting credits or issuing refunds to a Customer.

F. Discrimination. You agree that you shall not engage in any acceptance practice that discriminates against or discourages the use of any Card Organization relative to any other Card Organization.

G. Access to Cardholder Data. You acknowledge that you do not have access to Cardholder Data for payments received by you through the ShootProof Services. You agree you shall not request access to Cardholder Data from either ShootProof or any Customer making payment through the ShootProof Services. In the event that you receive Cardholder Data in connection with the ShootProof Services, you agree that (i) you will not use the Cardholder Data for any purpose that you know or should know to be fraudulent or in violation of any Card Organization Rules; (ii) you will not sell, purchase, provide or exchange in any manner or disclose Cardholder Data to anyone other than ShootProof, any Card Organization (as applicable), or in response to a government request; and (iii) you 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.

H. ShootProof Customer Identification. You agree to prominently and unequivocally inform Customers of your identity at all points of interaction. You must include the address of your permanent establishment on your website.

I. Chargebacks. You shall use all reasonable methods to resolve disputes with Customers. Should a chargeback dispute occur, you shall promptly comply with all requests for information from ShootProof. You shall not attempt to recharge a Customer for an item that has been charged back, 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 Organization Rules).

J. Refund Policy must be on Your Website. If you limit refund/exchange terms or other specific conditions for sales, your policy must be clearly provided to the Customers prior to the sale, 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 your refund or exchange terms does not completely eliminate your liability for a refund because consumer protection laws and Card Organization Rules frequently allow the cardholder to still dispute these items. If you allow a refund under your refund policy, you 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. You shall not accept any payment from a Customer as consideration for issuing a refund. You shall not accept any payment from a Customer as consideration for issuing a refund.

K. Recurring Transactions. For recurring Transactions, if any, permitted by the Seller Agreement, you 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 Member 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. You 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 Member or any Card Organization (via authorization code or otherwise) that the Card is not to be honored. You shall include in the Transaction data the electronic indicator that the Transaction is a recurring Transaction.

L. Compliance with Law; Privacy Policy Display. You will not access and/or utilize the ShootProof Services for illegal purposes and will not interfere or disrupt networks connected with the ShootProof Services. You agree to display your consumer privacy policy on its website as well as its security method for transmission of payment data.

M. Existing Debt. Transactions shall not represent the collection of a dishonored check or the collection, transfer or refinancing of any existing or prior debt or obligation. You shall not submit any Transaction which you know or should know to be unenforceable or uncollectable.

N. Installment Plans. Unless specifically approved in writing by Member in advance, you shall not accept Cards in connection with installment plans. If the Customer pays in installments or on a deferred payment plan, as previously approved by Member, a written or electronic record of the Transaction 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 Member for processing, shall be deemed to be a part of the original Transaction.

4. Authorizations.

You are required to obtain an authorization through the ShootProof Service, in accordance with this Agreement, for each Transaction. Member reserves the right to refuse to process any Transaction data presented by you unless it includes a proper authorization.

5. Payment Instructions.

You authorize and direct us to pay all amounts due from us to you hereunder to ShootProof, who shall serve as your agent for purposes of receiving the proceeds of credit and debit card funded processing services from us and shall be responsible for disbursing such amounts to you.

6. Term and Termination.

This Agreement is effective upon the date you agree to this Agreement (by electronically indicating acceptance or otherwise), and continues so long as you use the ShootProof Service or until terminated by you or Member. This Agreement will terminate automatically upon any termination or expiration of your Seller Agreement, provided that those terms which by their nature are intended to survive termination (including indemnification obligations and limitations of liability) shall survive. This Agreement may be terminated by Member at any time based on (i) your breach of any term, covenant, condition or agreement contained in this Agreement or the Seller Agreement; (ii) irregular Transactions by you, excessive chargebacks, or any other circumstances which, in Member’s discretion, may increase Member’s exposure, your chargebacks or otherwise present an unreasonable anticipated financial, reputational, or legal risk to Member; (iii) a case or other proceeding shall be commenced by or against you 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 you, or of all or any substantial part of your assets, domestic or foreign, 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 you (including, without limitation, an order for relief under the Bankruptcy Code) shall be entered; (iv) any Card Organization notifies Member that it is no longer willing to accept your Transaction data or requires Member to terminate or limit this Agreement; (v) you or any person owning or controlling your business is listed in one or more databases of terminated or high risk merchants maintained by the Card Organizations; (vi) you engage in conduct that creates or could tend to create harm or loss to the goodwill of any Card Organization, Member, or ShootProof, or which otherwise may impose undue risk of harm to any Card Organization, Member or ShootProof; or (vii) the termination of the payment processing relationship between ShootProof and Member.

7. Financial and Other Merchant Information.

Upon three (3) days’ written notice at any time, you agree to furnish to ShootProof and/or Member such financial statements and financial information as ShootProof and/or Member may request relating to you, your creditworthiness and/or your ability to fulfill your financial and other obligations under this Agreement. In addition, you agree to provide Member at least 30 days’ prior written notice of your intent to change current product lines or services, your trade name, or the manner in which you accept payment Instruments. If Member determines such a change is material to its relationship with you, Member may refuse to process Transaction data made subsequent to the change or terminate this Agreement. You further agree to provide Member with prompt written notice if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You will also provide Member with prompt written notice of (i) any adverse change in your financial condition; (ii) any planned or anticipated liquidation or substantial change the basic nature of your business; (iii) any transfer or sale of any substantial part (25% or more in value) of your total assets; or (iv) if you or your 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 you or your parent. You will also notify Member of any judgment, writ, warrant of attachment, execution or levy against any substantial part (25% or more in value) of your total assets not later than three (3) days after you obtain knowledge of any such judgment, writ, warrant of attachment, execution or levy.

8. Audit Rights.

With prior notice and during your normal business hours, Member’s duly authorized representatives may visit your business premises and may examine your books and records that pertain to Transactions or your compliance with this Agreement.

9. Application and Credit Check.

You represent and warrant that statements made on your Application for this Agreement are true as of the date of your agreement to be bound by this Agreement. By agreeing to this Agreement (by electronically agreeing to acceptance or otherwise) authorizes Member to perform any credit check deemed necessary with respect to you.

10. Indemnification.

You agree to indemnify and hold Member harmless from and against all losses, liabilities, damages and expense resulting from and/or arising out of: (i) any breach of any warranty, covenant or agreement or any misrepresentation by you under this Agreement; (ii) your or your employees’ negligence or willful misconduct, in connection with Card-funded ShootProof Transactions or otherwise arising from your provision of goods and services to the Customers paying for such goods; (iii) your use of the ShootProof Services; or (iv) any third party indemnifications Member is obligated to make as a result of your actions (including indemnification of any Card Organization or Card issuing bank).

Member agrees to indemnify and hold you harmless from and against all losses, liabilities, damages and expenses resulting from and/or arising out of: (i) any breach of any warranty, covenant, or agreement or any misrepresentation by each of us under this Agreement; or (ii) our or our employee’s gross negligence or willful misconduct in connection with this Agreement.

11. Warranty Disclaimer.

This Agreement is a service agreement. We disclaim all representations or warranties, express or implied, made to you or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise of any services or any goods provided incidental to the services provided under this Agreement to the extent permitted by law.

12. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL SHOOTPROOF BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR SHOOTPROOF ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY SHOOTPROOF IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

13. Governing Law; Arbitration.

Governing law with respect to this Agreement shall be California, U.S. Any dispute with respect to this Agreement between you and Wells Fargo Bank, N.A or you and Wells Fargo Merchant Services, L.L.C., including a dispute as to the validity or existence of this Agreement and/or this clause, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. Venue for any such arbitration shall be Santa Clara County, California.

14. Entire Agreement.

This Agreement represents the entire understanding between you and Member 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 you and ShootProof. You agree that in entering into this Agreement you have not relied on any statement of Member 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.

15. Assignment.

This Agreement may only be assigned by you in connection with a permitted assignment under this Agreement. You cannot assign or transfer your rights or delegate your responsibilities under this Agreement without the Member’s prior written consent. Failure to obtain our consent may result in a termination of this Agreement. The Member may assign their rights under this Agreement without your consent.

16. Amendment.

This Agreement may be amended at any time by Member 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 Organization Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Your agreement (by electronically agreeing to acceptance or otherwise) of this Agreement or continued submission of Transactions to us following such notice will be deemed to be your acceptance of such amendment.

17. Tax Matters.

Member and/or ShootProof are obligated to collect and report certain taxpayer information to the United States Internal Revenue Service (IRS). Therefore, upon request, you shall provide ShootProof and/or Member with the appropriate taxpayer information covered by IRS Form W-9 (or the appropriate versions of Form W-8, if applicable). Member or ShootProof may, in accordance with applicable law and from time to time during the term of this Agreement, request you to recertify your taxpayer information hereunder. Furthermore, you shall be responsible for any IRS penalties accruing based on your actions or inactions despite reasonable requests and/or notices from Member.

18. Waiver.

The failure of a party to assert any of its rights under this Agreement, including the right to terminate this Agreement in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of this Agreement in accordance with its terms.

19. Relationship between the Parties.

No agency, partnership, joint venture or employment relationship is created between you and Member by way of this Agreement. In the performance of their respective obligations hereunder, the parties are, and will be, independent contractors. Neither party will bind, or attempt to bind, the other party to any contract or the performance of any obligation, and neither party will represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.

20. Severability.

Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof will be prohibited by or determined to be invalid by a court of competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Member Bank Information: Member Bank, Wells Fargo Bank, N.A., is responsible for the credit and debit card processing services provided hereunder and may be contacted at: PO Box 6079, Concord, CA 94524 and 1-800-451-5817.

Association Disclosure; Member Bank Information: Member Bank, 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 Bank Responsibilities:
(a) Member Bank, and not ShootProof, is the entity approved to extend acceptance of Card Organization products directly to you.
(b) Member Bank must be a principal (signer) to this Agreement.
(c) Member Bank is responsible for educating you on pertinent Card Organization Rules with which you must comply; but this information may be provided to you by ShootProof.
(d) Subject to this Agreement, Member Bank is responsible for and must provide settlement funds to you.
(e) Member Bank is responsible for all funds held in reserve.

Important Merchant Responsibilities:
(a) Ensure compliance with Cardholder Data security and storage requirements.
(b) Maintain fraud and chargebacks below Card Organization thresholds.
(c) Review and understand the terms of this Agreement.
(d) Comply with Card Organization Rules.
(e) Retain a signed copy of this Disclosure Page.

Merchant Resources
(a) You may download “Visa Regulations” from Visa’s website at: http://usa.visa.com/merchants/operations/op_regulations.html
(b) You may download “MasterCard Rules” from MasterCard’s website at: http://www.mastercard.com/us/merchant/support/rules.html

The responsibilities above do not replace the terms of the Commercial Entity Agreement or Seller Agreement, and are provided to ensure the Merchant understands some important obligations of each party and that the Member Bank is the ultimate authority should the Merchant experience any problems.

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