Last Updated: 4.26.2022
This Sub-Merchant Agreement (“Agreement”), including the Application, and all appendices, exhibits, schedules and other documents incorporated herein by reference, constitutes a binding agreement between Retriever Medical Dental Payments, LLC, d/b/a Rectangle Health (“Rectangle”) and the person or entity set forth in the Application (“Sub-Merchant”). Capitalized terms used in this Agreement not otherwise defined herein are defined in Appendix A – Glossary. The Sub-Merchant agrees to be bound by the terms and conditions of the Agreement, as may be updated from time to time, as evidenced either by submitting the Application (for example, by clicking “Submit Application”) or by the transmission of a Transaction receipt or other evidence of a Transaction. Each party agrees that the electronic signatures and equivalent indications of acceptance by the parties executing this Agreement are intended to authenticate this Agreement on behalf of each respective signing party, and have the same force and effect as manual signatures. This Agreement will be binding on Rectangle and becomes effective upon Rectangle’s approval of the Application and issuance of an Account to Sub-Merchant (“Effective Date”).
Rectangle is sponsored by Bank to participate in a program affiliated with the Card Brands which enables holders of Cards to purchase goods and services from Rectangle’s business customers. Rectangle will facilitate the processing of Sub-Merchant’s Card Transactions and any other transactions as decided by Rectangle that are originated in accordance with the Operating Regulations, as provided herein and otherwise as Rectangle, in its sole discretion, deems appropriate. Services relate solely to the facilitation of Transactions between Customers and the Sub-Merchant pursuant to this Agreement. Sub-Merchant agrees that Sub-Merchant, and not Rectangle, will be responsible for resolving any issues, problems, or disputes with Customers and Cardholders. Sub-Merchant further agrees that Rectangle may refuse to process any or all of Sub-Merchant’s Transactions in Rectangle’s reasonable discretion. Rectangle reserves the right to monitor Sub-Merchant’s use of the Services and its Customers to determine compliance with this Agreement and the Operating Regulations. Rectangle reserves the right, at its sole discretion, without prior consent of Sub-Merchant, to make reasonable changes to the Services or implement risk management controls deemed necessary by Rectangle or its suppliers to manage risk. Sub-Merchant will comply with all such changes. As a condition to receive the Services, Sub-Merchant agrees to fully comply with all of the terms and obligations in Rectangle’s written guidelines, policies, rules, regulations and procedures that may be published by Rectangle from time to time related to the use of the Services.
For the Term of this Agreement and provided that Sub-Merchant is not in breach of this Agreement, Sub-Merchant will be granted an Account accessible through the Services. Rectangle and Bank reserve the right to enter into other agreements pertaining to the Services with other persons and/or entities, including, without limitation, other merchants. Sub-Merchant agrees that Rectangle is the exclusive provider of Services to Sub-Merchant for all of its locations and Sub-Merchant will not enter into any other agreement for Services with another provider during the Term of this Agreement. The Account will include a record of Sub-Merchant’s Transactions and associated Fees. Rectangle will provide Sub-Merchant with credentials for access to the Account. Sub-Merchant may not disclose such codes or permit any third party to use them other than Third Party Servicers pursuant to a binding written agreement with Sub-Merchant. Except as required to deliver or receive the Services or as otherwise required by law, Rectangle will not grant any third-party access to the Account.
Sub-Merchant represents and warrants that: (i) it nor any of its principals, managers, directors or Affiliates appear on the U.S. Department of the Treasury, Office of Foreign Assets Control, Specially Designated Nationals List, (ii) neither it, nor any of its Affiliates have been previously terminated for cause by Rectangle or any of its Affiliates or by any other payment processor, and (iii) Sub-Merchant is both domiciled in and a resident of the United States.
Sub-Merchant will not use Services to assist in any illegal activity or any Prohibited Activity. For the avoidance of doubt, Sub-Merchant must not submit any Transaction that is illegal, or that Sub-Merchant knows or should have known to be illegal, fraudulent, or not authorized by the Cardholder, or that it knows or should have known to be authorized by a Customer or Cardholder colluding with the Sub-Merchant for a fraudulent purpose. Sub-Merchant may not use Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control. Without any limitations on any other Prohibited Activity, Sub-Merchant hereby affirms that no payments whatsoever for firearms or ammunition or any parts or accessories that could modify the performance or action of any actual firearms will be made through the Account.
Sub-Merchant may not itself or through any other Person: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble, in any way, any portion of the Services and/or Content made accessible by Rectangle including any information, pictures, videos, text, graphics, software programs used by Rectangle in connection with the Services and Content, or publicly display, reproduce, create derivative works from, perform, distribute, or otherwise use such Content, other than as permitted by Rectangle in writing, (ii) make any use of the Content and/or Services on any other website or networked computer environment for any purpose, or replicate or copy the Content without Rectangle’s prior written consent, (iii) interfere with or violate any other services or user’s right to privacy or other rights, or harvest or collect personally identifiable information about users of the Services without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine, (iv) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, (v) transmit or otherwise make available in connection with the Services any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component, (vi) interfere with or disrupt the operation of the Services, or the servers or networks that host the Services or make them available, or violate any requirements, procedures, policies, or regulations of such servers or networks, (vii) sell, license, or exploit for any commercial purposes any use of or access to the Services other than expressly permitted by Rectangle in writing, (viii) forward any data generated from the Services without the prior written consent of Rectangle, (ix) sub-license any or all of the Services to any third party, or (x) transfer or assign the Account password, even temporarily, to a third party.
On sign-up and throughout the Term of this Agreement, Sub-Merchant will supply, through the Application and by such other means as Rectangle may require, information concerning the Sub-Merchant, its Guarantor (if required by Rectangle) and principals. Sub-Merchant will immediately notify Rectangle of any changes in such information. Sub-Merchant must provide Rectangle with the current address of each location, all “doing business as” (DBA) names used by Sub-Merchant, and a complete description of the Products provided by Sub-Merchant. Sub-Merchant may not use the Services in connection with any goods or services provided other than the Products and the Products provided by Sub-Merchant cannot be changed without Rectangle’s prior written consent. Sub-Merchant represents that all information supplied to Rectangle in connection with its Sub-Merchant Application, in any other request for services, or in response to any inquiry by Rectangle, is complete, accurate, and not misleading.
Sub-Merchant authorizes Rectangle to research the background of Sub-Merchant and its beneficial owners (including any person that owns or controls 25% or more of the company’s equity or voting rights, or that exercises managerial control over the company), including but not limited to credit background checks, banking relationships, and financial history. Sub-Merchant agrees to provide Rectangle with thirty (30) days’ prior written notice of Sub-Merchant’s intent to change its business form or entity in any manner (e.g., a change from a limited liability company to a corporation), of Sub-Merchant’s intent to sell or otherwise transfer 25% or more of its stock, assets, or voting power to another entity, and/or of any change in Sub-Merchant’s business or operations which would cause any information provided by Sub-Merchant to Rectangle to be incorrect, incomplete, or misleading, or which would have a material effect on Sub-Merchant. Sub-Merchant authorizes Rectangle to share any information relating to Sub-Merchant to with the Bank, Processor, and/or Card Brands as it deems necessary or as required by the Operating Regulations. In the event of a change of business, Rectangle reserves the right to terminate this Agreement with notice to Sub-Merchant, or Rectangle may require additional reserve or impose other conditions on Sub-Merchant or its proposed assignee in Rectangle’s sole discretion, including but not limited to cash collateral, letters of credit, guarantors, additional underwriting, or any condition required by the Operating Regulations or the Card Brands. Federal Regulations enacted pursuant to the USA Patriot Act and other applicable laws require financial institutions to verify the identity of every person who seeks to open an account with a financial institution. Sub-Merchant will provide documentary verification as requested from time to time by Rectangle in a manner acceptable to Rectangle. Rectangle, Processor, and Bank reserve the right to verify Sub-Merchant’s identity through other non-documentary methods as deemed appropriate in their sole discretion. Rectangle, Processor, and Bank may retain a copy of any document it obtains to verify Sub-Merchant’s identity.
Sub-Merchant will elect on the Application whether to accept all Cards (“Full Acceptance”) or not accept all Cards (“Limited Acceptance”) from Customers for payment. For all Cards issued by U.S. Issuers, Sun-Merchant must honor all cards without discrimination within the Card types accepted in accordance with this Agreement. Sub-Merchant must maintain a policy that does not discriminate among Customers seeking to make purchase with a Card. If Sub-Merchant elects Limited Acceptance on the Application, Sub-Merchants acknowledges and agrees that it elects to accept only certain Visa/Mastercard card types as indicated on the Application or via later notification to Rectangle in writing pursuant to the procedure described below. Sub-Merchant further acknowledges and agrees that Rectangle has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to Limited Acceptance and that Rectangle’s obligations do not include policing card types at the point of sale. As a Limited Acceptance Sub-Merchant, Sub-Merchant will be solely responsible for the implementation of its decision for Limited Acceptance. Sub-Merchant will be solely responsible for policing, at the point of sale, the card type(s) of transactions it submits for processing. Should Sub-Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Rectangle may process that transaction and Sub-Merchant will pay the applicable fees, charges, and assessments associated with that transaction. The Sub-Merchant Application or applicable fee schedule distinguishes any card acceptance-related fees and pricing methodology associated with each limited acceptance category.
A Full Acceptance Sub-Merchant will accept all valid Cards unless Sub-Merchant provides thirty (30) days written notice to Rectangle requesting limited acceptance and stating Sub-Merchant’s election of Card types. Limited acceptance is not applicable to non-US issued Cards and is in all instances subject to the Operating Regulations. Sub-Merchant will prominently display Card signage provided by Rectangle in its place(s) of business and the type of signage displayed will be in accordance with the Cards accepted by Sub-Merchant.
Sub-Merchant is solely responsible for its Product and all customer service issues related to the Product including pricing, order fulfillment, order cancellation by Sub-Merchant or the Customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with Sub-Merchant personnel, policies, or processes. Sub-Merchant must ensure that the Cardholder understands that Sub-Merchant is responsible for the Transaction, including delivery of the Products or provision of the services that are the subject of the Transaction, and for customer service and dispute resolution. Sub-Merchant will post its customer service telephone number along with clear terms and conditions with respect to the Product on its website. Each Transaction submitted or processed under this Agreement will represent a payment by a Customer to Sub-Merchant. Rectangle and Bank make no representation or guarantee with respect to Customer funds availability, that a Transaction will be authorized or processed, or that a Transaction will not later result in a chargeback, reversal Return or Reversal. If Sub-Merchant is a non-profit organization, it will retain sole and exclusive responsibility for classifying itself and its Transactions, issuing any required reports and receipts, and making any required tax or other filings. If Sub-Merchant offers any loyalty program to Customers through the Services or otherwise, Sub-Merchant is solely responsible for any and all offerings made available to Customers in connection with such loyalty program and is solely responsible for ensuring the accuracy and legality of the offers and content for such loyalty program provided to Customers.
Rectangle is not liable for Third Party Servicers or their services even if the Site contains links to them or the Services are integrated with them. The inclusion of any link or integration to a Third Party Servicer does not imply an approval, endorsement, or recommendation by Rectangle. Sub-Merchant agrees that Sub-Merchant accesses any such website at Sub-Merchant’s own risk.
Upon written or verbal notice at any time, Sub-Merchant agrees to furnish to Rectangle its recent and/or historical financial statements and other financial information. From time to time, Rectangle may request financial information concerning Sub-Merchant, its owners, Guarantors (if any) and principals, and Sub-Merchant agrees to furnish the information in a timely manner. Further, Sub-Merchant agrees to provide Rectangle with prompt written notice of any adverse change in Sub-Merchant’s financial condition including: any planned or anticipated liquidation; any significant change in the nature of Sub-Merchant’s business; and any material judgment, writ, warrant of attachment, levy or adverse decision against Sub-Merchant affecting its financial condition. The information obtained will not be provided to any parties other than to designated authorized representatives of Rectangle.
Sub-Merchant will pay the fees, expenses and all other amounts set forth in this Agreement including, but not limited to, the transaction fees, monthly fees, discount rates, and other product fees set forth on the Sub-Merchant Application. In addition, Sub-Merchant is liable for all expenses including without limitation attorneys’ fees and amounts attributable to time spent by Rectangle staff that Rectangle incurs in responding to legal process from third parties related to a claim against or investigation of Sub-Merchant. Rectangle may change or add fees and/or charges upon notice to Sub-Merchant in accordance with Rectangle’s standard operating procedure, and such fees and/or charges will be immediately payable by Sub-Merchant when assessed by Rectangle. Sub-Merchant acknowledges and agrees that this section will not be intended or construed to permit Sub-Merchant to terminate the Agreement as a result of a change or increase in fees from third parties and/or in pass through fees as referenced in this Agreement or the Sub-Merchant Application, and that pass through fees, which include without limitation interchange dues or assessments imposed by the Card Brands, will not constitute fee increases by Sub-Merchant and will be immediately payable. Notwithstanding any other provision of this Agreement, Sub-Merchant is responsible for all Liability Assessments and other charges imposed or assessed to Sub-Merchant, Rectangle, and/or Bank in connection with this Agreement or any Transactions submitted by Sub-Merchant or through Sub-Merchant’s Account.
Sub-Merchant will not submit Transactions hereunder unless they are submitted in the correct manner, including the Sub-Merchant being in possession of Transaction receipts and not submitting Transactions until they are complete, (i.e., the goods or services are shipped/provided) and the Transaction is in the correct currency and within the correct time limit, as applicable. Sub-Merchant may set a minimum Card Transaction amount to accept that provides access to a credit account, under the following conditions: (i) the minimum Card Transaction amount does not differentiate between card issuers, (ii) the minimum Card Transaction amount does not differentiate between Card Brands, and (iii) the minimum Card Transaction amount does not exceed $10.00 (or any higher amount established by the Federal Reserve by regulation). Sub-Merchant may only set a maximum Card Transaction amount under the following conditions: (a) the Customer (i) is a department, agency, or instrumentality of the U.S. Government, or (ii) is a corporation owned or controlled by the U.S. Government, or (iii) is a Customer whose primary business is reflected by one of the following MCCs: (x) MCC 8220 – Colleges, Universities, Professional Schools, Junior Colleges, (y) MCC8244 – Schools, Business and Secretarial, or (z) MCC 8249 – Schools, Trade and Vocational, and (b) the maximum Card Transaction amount does not differentiate between card issuers, and (c) the maximum Card Transaction amount does not differentiate between Card Brands. For U.S. transactions, Sub-Merchant will be permitted to use any terminal processing services of any Card Brand to deliver Visa transactions captured at the point of transaction directly to Visa for clearing and settlement. Sub-Merchant agrees to be bound by and must comply with the Operating Regulations and all applicable law. In the event of any inconsistency or conflict between any provision of this Agreement and the Operating Regulations, the Operating Regulations will govern. The Operating Regulations are incorporated by reference herein and are deemed to have the same force and effect as if set forth in full. Should any of the Operating Regulations not be publicly available or otherwise made available to Sub-Merchant, such unavailability will not alter or limit Sub-Merchant’s obligation to comply with the Operating Regulations. Notwithstanding Rectangle’s assistance in understanding the Operating Regulations, Sub-Merchant expressly acknowledges and agrees that it is assuming the risk of Sub-Merchant’s compliance with all provisions of the Operating Regulations, regardless of whether Sub-Merchant has possession of those provisions.
If Sub-Merchant has been accepted to participate in the American Express OptBlue Program to accept American Express Cards, Sub-Merchant is also bound by the terms in Schedule 1 – Amex Acceptance and Brand Requirements located here: http://amex-acceptance-and-brand-requirement/.
Settlement funds in connection with Transactions are not insured by Rectangle, Processor, Bank, the Card Brands or any third party. Sub-Merchant must establish and designate in its Application a depository account at a financial institution of Sub-Merchant’s choice prior to processing any payments. Such depository account will be used in connection with this Agreement for deposits from Card Transactions (“Settlement Account”). The Settlement Account must match Sub-Merchant’s legal entity name or registered DBA name. Sub-Merchant must provide Rectangle with complete and accurate information regarding the Settlement Account including the name and address of the financial institution, routing number and account number. Sub-Merchant is responsible to ensure that all such information provided on its Application with respect to the Settlement Account is accurate and correct. Sub-Merchant authorizes Rectangle to share the Settlement Account information with Bank. Sub-Merchant must notify Rectangle immediately in writing upon any change to the Settlement Account. Each Account must be linked to at least one verified Settlement Account.
Unless otherwise indicated, Rectangle’s role is limited to issuing payment instructions to Bank, and all settlement activity and other handling of processed Transaction funds into the Settlement Account will be performed by Bank, not Rectangle. If Bank cannot transfer the funds to the Settlement Account due to inaccurate or obsolete bank account information entered by the Sub-Merchant, or for any other reason, Rectangle may refund the funds to the Customer or escheat them as provided below. Neither Bank, Rectangle nor the Customer will have any liability to Sub-Merchant for funds so refunded. Deposits to the Settlement Account will be limited or delayed based on Sub-Merchant’s perceived risk and history with Rectangle as determined by the sole and absolute discretion of Rectangle or Bank and Rectangle may debit the Settlement Account or any Sub-Merchant bank account(s) for any reason permitted in this Agreement. Neither Bank nor Rectangle is liable for any amounts directed to an account that has been designated as the Settlement Account by any purported representative of Sub-Merchant. If required by Rectangle, Bank or any financial institution where the Settlement Account is maintained, Sub-Merchant agrees to sign any documents required to authorize the deposits and withdrawals, including without limitation, ACH transactions.
Sub-Merchant authorizes Rectangle to instruct Bank to deposit the settlement amounts due to Sub-Merchant (namely, the Transaction amounts minus Fees and any other amounts due under this Agreement or the Direct Agreement, if applicable) to the Settlement Account. Unless otherwise agreed in writing by Rectangle, Transaction settlement will be made by Bank via ACH to the Settlement Account. Rectangle will not take possession of Sub-Merchant’s funds at any time. Sub-Merchant acknowledges and agrees that its settlement funds may be held in a depository account (including a pooled account) held at Bank for the benefit of Sub-Merchant (or Rectangle’s sub-merchants generally) before such funds are settled to the Settlement Account.
If Rectangle and Sub-Merchant mutually agree for Rectangle to receive and disburse settlement funds from Bank on behalf of Sub-Merchant or Rectangle is otherwise deemed to be involved in the settlement flow, Sub-Merchant agrees that it has irrevocably authorized Rectangle as its agent for the limited purpose of receiving and disbursing settlement funds on its behalf. Subject to the terms of this Agreement, any such payments received by Rectangle will be deemed payment to the Sub-Merchant at the time received by Rectangle. Sub-Merchant may not seek recourse against the Customer (including Cardholders) or the Customer’s financial source in the event Rectangle does not settle the funds to Sub-Merchant in accordance with this Agreement with respect to any Transaction; Sub-Merchant’s recourse for such event is solely against Rectangle. Sub-Merchant will not withhold any Products from the Customer for Rectangle’s failure to settle the Customer’s funds to Sub-Merchant in connection with any Transaction.
Subject to this Agreement, Sub-Merchant also authorizes Bank to debit or credit the Settlement Account or any payment card or other payment method on file with Rectangle. Sub-Merchant authorizes Rectangle and Bank to initiate electronic ACH debit and credit entries to the Settlement Account and to initiate adjustments for any Transactions credited or debited in error. Sub-Merchant’s authorization will remain in full force and effect for the duration of this Agreement and for two hundred seventy (270) days after the termination of this Agreement (“Trailing Period”) for trailing liabilities. Sub-Merchant must always maintain the Settlement Account with sufficient cleared funds to meet its obligations under this Agreement throughout the Term of this Agreement and the Trailing Period. In the event Sub-Merchant desires to change the Settlement Account or change the financial instruction where the Settlement Account is held, Sub-Merchant must give Rectangle thirty (30) days’ prior written notice of any such change, and Rectangle will use reasonable commercial efforts to affect such change with Bank; however, such change will not be effective until the date on which Rectangle and Bank makes such change on their systems. In no event will Rectangle or Bank have any liability for any amounts directed to a Settlement Account that has been designated by any purported representative of sub-Merchant at any time during the Term of this Agreement, regardless of any change of account.
Where deemed necessary or appropriate by Bank or Rectangle, Bank will create a Reserve in order to protect Bank and Rectangle from actual or potential liabilities arising out of or in connection with this Agreement. The Reserve will be in an amount determined by Rectangle in its sole and absolute discretion to cover anticipated chargebacks, returns, Liability Assessments, unshipped Product and/or unfulfilled services, reversals, returns, or other amounts owing by Sub-Merchant hereunder, or credit risk based on Sub-Merchant processing history. The amount of funds held in the Reserve may be raised, reduced, or removed at any time by Bank or Rectangle upon notice to Sub-Merchant. Where the Reserve is not adequately funded, Sub-Merchant will pay all amounts requested by Rectangle for the Reserve within one (1) business day of a request for such amounts and Bank and Rectangle may build the Reserve by off-sets from Transaction settlements or by debiting any bank account of the Sub-Merchant (including the Settlement Account) by ACH. All reserve funds will be maintained in an account owned by Bank and held at Bank and will remain in such account (unless withdrawn by Rectangle or Bank in accordance with this Agreement) until each of the following has occurred: (i) this Agreement has been terminated, and (ii) Sub-Merchant has paid in full all amounts owing or that could ever be owed under this Agreement, including, without limitation, all outstanding/uncollected amounts and potential chargebacks and Liability Assessments. In no event will Sub-Merchant be entitled to a return of any sums remaining in the reserve account before the end of the Trailing Period.
Sub-Merchant grants Rectangle a security interest in and lien on any and all funds held in any Reserve and the Settlement Account (“Secured Assets”), and also authorizes Rectangle and Bank to make any withdrawals or debits from the Reserve or Settlement Account, without prior notice to Sub-Merchant, to collect amounts that Sub-Merchant owes Rectangle or Bank under this Agreement, including without limitation, for any reversals of deposits or transfers. Sub-Merchant will execute any additional documentation required for Rectangle to perfect Rectangle’s security interest in any funds in the Reserve and Settlement Account. Sub-Merchant hereby authorizes Rectangle to prepare all documents or to take other actions reasonably necessary to perfect its security interest or lien in the Reserve or Settlement Account or any substitute account therefor. Sub-Merchant acknowledges that Rectangle may file a Uniform Commercial Code, UCC-1 Financing Statement or any other financing statement or document against the Secured Assets, and Sub-Merchant agrees to execute such financing statements or other documents to evidence Rectangle’s security interest. The security interest and lien granted herein survives the termination of this Agreement until all amounts due are determined and paid in full; however, it does not apply to any funds for which the grant of a security interest would be prohibited by law. Sub-Merchant irrevocably assigns to Rectangle all rights and legal interests to any interest or other earnings that accrue or are attributable to the Reserve and Settlement Account. Sub-Merchant may not take any action to encumber the Secured Assets.
The Card Brands have implemented standards and programs to protect Customer Data and Sub-Merchant agrees to comply with all such programs, including but not limited to Visa’s Cardholder Information Security Program (CISP), Mastercard’s Site Data Protection Program (SDP), PCI-DSS, or other security program as required by each Card Brand (collectively, “Security Requirements”) and have the ability to demonstrate such compliance. Sub-Merchant will not request, use, disclose, sell, purchase, provide, or exchange Cardholder name, address, account number or other information to any third party other than to Rectangle, Processor, and Bank or a Card Brand for the purpose of completing a sales Transaction unless specifically permitted by the Security Requirements and/or other Operating Regulations, or in response to a valid government demand. Sub-Merchant must notify Rectangle of any service provider or other third party that will have access to Cardholder data. Sub-Merchant will be solely responsible for the security, quality, accuracy, and adequacy of all transactions and information supplied hereunder, and will establish and maintain adequate audit controls to monitor the security, quality, maintenance, and delivery of such data. Without limiting the generality of the foregoing, Sub-Merchant warrants to Rectangle that it has implemented and will maintain secure systems for storing and processing information and for transmitting information to Rectangle. Sub-Merchant will ensure that it at all times complies with all Security Requirements and adopts procedures sufficient to prevent unauthorized access or disclosure of Rectangle’s confidential information, Customer Data (including but not limited to account details and Card numbers), Card transaction information, any credentials issued to Sub-Merchant, or any personally identifiable information. In addition to Sub-Merchant fully complying with Security Requirements, Sub-Merchant will, at Sub-Merchant’s sole expense, within thirty days of the first day of the Initial Term and on an annual basis thereafter (or more frequently if required by Rectangle), obtain from an independent third party acceptable to Rectangle a certification of PCI compliance and submit a copy of such certification to Rectangle. Rectangle’s acceptance of such PCI certification does not constitute a representation or warranty that Sub-Merchant is PCI compliant, nor does it relieve Sub-Merchant of any of its obligations or liabilities related to PCI compliance or data security under this Agreement, applicable law, or otherwise. Neither Rectangle nor Bank will have any liability whatsoever for the security or availability of any communications used in connection with the Services provided hereunder. Sub-Merchant acknowledges that Rectangle is responsible only for the security of its own proprietary systems, and not for the systems of any third party, including, without limitation, any Merchant Supplier. Sub-Merchant will notify Rectangle immediately if Sub-Merchant becomes aware of or suspects a Data Incident (including at a Merchant Supplier) and comply with all applicable laws regarding the Data Incident at Sub-Merchant’s sole cost and expense. Sub-Merchant agrees to fully cooperate with Rectangle and any Card Brand with respect to any investigation and/or additional requirements related to any actual or suspected Data Incident. Sub-Merchant will preserve and provide to Rectangle or its designated agents or representatives copies of all records in connection with any Data Incident, and will fully cooperate with any forensic investigators or other third parties engaged in connection with the identification and remediation of such Data Incident.
Sub-Merchant will use only PCI DSS compliant Merchant Suppliers in connection with the storage, processing, or transmission of Customer Data and will be exclusively liable for any security breaches of its systems or the systems of its Merchant Suppliers or any other PCI DSS violations or violations of other applicable laws or the Operating Regulations. Sub-Merchant has exclusive responsibility for security of Customer Data and other information on Sub-Merchant systems or those under its control, including those of its Merchant Suppliers. Sub-Merchant is aware of and will comply with and will require all Merchant Suppliers to comply with all Operating Regulations in connection with Sub-Merchant collection, security, and dissemination of any personal, financial, or transaction information. Sub-Merchant bears all risk and responsibility for conducting Sub-Merchant’s own due diligence regarding the fitness of any Merchant Supplier for a particular purpose and for determining the extent of such Merchant Supplier’s compliance with the Operating Regulations. Without limitation, Sub-Merchant will maintain policies and procedures to reduce the risk of loss from Transactions that may pose significant fraud, regulatory, or legal risk, or may cause reputational damage to Rectangle or any third party. Sub-Merchant will maintain adequate security in accordance with industry standards to prevent a breach of Customer Data. Sub-Merchant expressly consents for Rectangle, Processor, Bank and all third parties that assist in the delivery of the Services to collect, use, store and disclose Rectangle information, including that provided in the Application, information concerning Customers, Transactions and the business of the Sub-Merchant in order to supply the Services, generate reports, to reduce fraud, provide customer support, create and share aggregated data concerning the Services and assess the risk associated with the Sub-Merchant. Card Brands will have the right to use Sub-Merchant’s name, address, and internet addresses and Sub-Merchant authorizes Rectangle to provide any Card Brand with any of Sub-Merchant’s information requested by the Card Brand. Sub-Merchant expressly agrees that neither Rectangle, Processor or Bank will be liable to Sub-Merchant or any third party for any actions or inactions of any Merchant Supplier used by Sub-Merchant, even if Rectangle, Processor, or Bank introduced or recommended such Merchant Supplier.
Our fees are exclusive of any applicable taxes, except as expressly stated to the contrary. Sub-Merchant has the exclusive responsibility to calculate, charge, collect and remit state and other taxes applicable to Product sales. Rectangle may send documents to Sub-Merchant and the Internal Revenue Service or other tax authority for Transactions processed using the Services. Rectangle may have tax reporting responsibilities in connection with the Services such as an Internal Revenue Service report on Form 1099-K. Sub-Merchant acknowledges that Rectangle will report the total amount of payments received by Sub-Merchant in connection with the Services each calendar year as required by the taxing authorities.
Sub-Merchant agrees to process returns of and provide refunds and adjustments for Products in accordance with this Agreement and the Operating Regulations. The Operating Regulations require that Sub-Merchant will: (i) maintain a fair return, cancellation, or adjustment policy, (ii) disclose Sub-Merchant return or cancellation policy to Customers at the time of purchase, (iii) not give cash refunds to a Customer in connection with a payment card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a payment card sale refund. Sub-Merchant’s refund policies must be the same for all payment methods and should specifically include a requirement for prompt payment of refunds in order to limit chargeback risk.
The amount of a Card Transaction may be charged back to Sub-Merchant for a variety of reasons under the Operating Regulations. Sub-Merchant is and will be responsible and liable for all Card transactions, chargebacks, reversals, disputes, and refunds in connection with Transactions, and Sub-Merchant hereby guarantees such Card transactions, chargebacks, reversals, disputes, and refunds with respect to all Transactions in accordance with this Agreement. Sub-Merchant will immediately pay Rectangle the amount of all chargeback and related Fees, fines, or Liability Assessments assessed by the Bank, Processor, the Card Brands or any other third party. If Sub-Merchant does not have sufficient funds in its bank account(s) (including the Settlement Account) to pay such amounts, Rectangle can instruct bank to offset the amounts from other Transaction amounts owing to Sub-Merchant hereunder, debit the amount by ACH from the Sub-Merchant’s bank account(s) (including the Settlement Account) or require Sub-Merchant to make immediate payment thereof. If Rectangle determines that Sub-Merchant is incurring an excessive number of chargebacks, returns or reversals, Rectangle or the Bank may establish controls or conditions governing Sub-Merchant’s Account, including without limitation, by: (i) assessing additional Fees, (ii) creating a Reserve in an amount reasonably determined by Rectangle, (iii) delaying payment, and (iv) terminating this Agreement or suspending the Services or closing the Account. Sub-Merchant will assist in the investigation of any and all chargebacks and other actual or potential Transaction disputes and will timely provide such information to Rectangle as Rectangle may request.
If amounts are owed by Sub-Merchant to Rectangle under this Agreement, Rectangle has the right to immediately, without prior consent or notice, offset or debit such amounts from funds: (i) deposited by Sub-Merchant, (ii) due to Sub-Merchant under this Agreement, (iii) held in the Reserve, or (iv) available in Sub-Merchant bank account(s) (including the Settlement Account), or other payment instrument registered with the Bank. Sub-Merchant’s failure to pay in full amounts that Sub-Merchant owes Rectangle on demand will be a material breach of this Agreement. Sub-Merchant will be liable for Rectangle’s costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1.5%) per month or the highest rate permitted by applicable law. Sub-Merchant hereby expressly agrees that all communication in relation to delinquent Accounts will be made as permitted under this Agreement. Such communication may be made by Rectangle or by anyone on its behalf, including but not limited to a third-party collection agent.
If there is no activity in an Account for the time period set forth in the applicable unclaimed property laws, and Sub-Merchant has a credit, Rectangle may notify Sub-Merchant by sending an email to Sub-Merchant’s registered email address. Rectangle may also attempt to notify Sub-Merchant by U.S. mail. Rectangle will give Sub-Merchant the option of keeping the Account open, withdrawing the funds, or requesting a check. If Sub-Merchant does not respond to Rectangle notice within the time period specified in the notice, Rectangle may close the Account and Rectangle will escheat Sub-Merchant funds in accordance with applicable law.
Sub-Merchant will have exclusive responsibility for: (i) compiling and retaining permanent records of all Transactions and other data, and (ii) reconciling all Transaction information that is associated with Sub-Merchant’s Account. If Sub-Merchant believes that there is an error associated with Sub-Merchant’s Account, Sub-Merchant must notify Rectangle in writing within sixty (60) days after the suspected error occurred. Sub-Merchant’s failure to notify Rectangle within such time period will result in Rectangle not being responsible for investigating or effecting any requested adjustments as a result of any error.
Sub-Merchant authorizes Rectangle or its respective agents to engage in any investigation of Sub-Merchant’s finances, activities, and operations that Rectangle reasonably determines necessary to underwrite Sub-Merchant and confirm Sub-Merchant’s eligibility for and use of the Services. Sub-Merchant agrees to cooperate in any such investigation and to provide Rectangle or its respective agents with any information required to complete such an investigation. Sub-Merchant authorizes Rectangle or its respective agents to make any background, identity verification, or credit inquiry that Rectangle deems necessary and authorizes any consumer reporting agency to compile information to answer such inquiries and furnish that information to Rectangle or its respective agents. If applicable, Sub-Merchant agrees to assist Rectangle or its respective agents obtain any necessary authorizations for any background, credit, or other check or report on Sub-Merchant’s owners, officers, guarantors, directors, or other principals. Rectangle may terminate this Agreement or suspend or delay the provision of Services if the information received in any investigation is unsatisfactory in Rectangle’s sole discretion.
Rectangle or any Card Brand may also audit Sub-Merchant’s compliance with the terms of this Agreement from time to time. Sub-Merchant agrees to cooperate with any such audit. Sub-Merchant must provide all information requested by Rectangle or the Card Brand necessary to complete the audit within the time period set forth in such request. Upon Rectangle’s or the Card Brand’s request, Sub-Merchant must provide all of its books and records, including financial statements for Sub-Merchant and personal financial statements for all guarantors. Sub-Merchant authorizes Rectangle or the Card Brands, as applicable, to make on-site visits to any and all of the Sub-Merchant’s locations with regard to all information necessary or pertinent to the Services. Sub-Merchant authorizes Rectangle and the Card Brands to share any information they collect or receive from or about Sub-Merchant with Processor and Bank. The cost of the audit will be at Rectangle’s sole expect unless the audit is: (a) required under the Operating Regulations or applicable law, (b) required or requested by a Card Brand, Bank, or regulatory agency, or (c) the result of Rectangle’s reasonable belief that Sub-Merchant is acting in violation of this Agreement or the Operating Regulations; in all such cases, the audit will be at Sub-Merchant’s sole expense.
This Agreement becomes effective on the Effective Date. The initial term of the Agreement is three (3) years commencing on the Effective Date (“Initial Term”). Except as hereafter provided, unless either party gives written notice to the other party at least ninety (90) days prior to the expiration of any term of its intent not to renew, or the Agreement is terminated as otherwise permitted under this Agreement, the Agreement will automatically renew for additional successive two (2) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”). Notwithstanding anything to the contrary contained in this Agreement, a Card Brand may immediately terminate (or cause Rectangle to immediately terminate), limit the terms of, or enforce this Agreement at any time and Rectangle’s termination of this Agreement in accordance with such instruction will be without penalty or liability under this Agreement. Rectangle will immediately terminate this Agreement if any Card Brand de-registers Rectangle. If Bank ceases to be a member of any of the Card Brands for any reason, or if Bank no longer has a license to use a Card Brand’s Marks, then Bank will cease processing with respect to that Card Brand’s transactions.
Rectangle may also immediately terminate this Agreement if: (i) Sub-Merchant breaches this Agreement, (ii) Sub-Merchant has chargebacks or disputes in excess of the Card Brand monitoring guidelines or other risk parameters in Rectangle’s sole discretion, (iii) Sub-Merchant appears on the Association Terminated Merchant File or similar list, (iv) any commission of any fraudulent or illegal activity by Sub-Merchant or its owners, officers or directors, (v) any action by Sub-Merchant that is reasonably anticipated Rectangle to be injurious to Rectangle, Bank, Processor or the Card Brands, (vi) if the Federal Trade Commission (FTC) or any other governmental or regulatory agency initiates an investigation, action or proceeding against Sub-Merchant or its owners, officers or directors, (vii) Bank requires Rectangle to terminate this Agreement, (viii) Sub-Merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, a receiver is appointed for Sub-Merchant, or Sub-Merchant makes an assignment for the benefit of creditors, or admits its inability to pay its debts as they become due, (ix) Sub-Merchant fails to pay or reimburse the fees, expenses charges, or other amounts due under Agreement when they become due, (x) Sub-Merchant violates the Operating Regulations or applicable law, (xi) Rectangle reasonably believes that there has been a material deterioration in Sub-Merchant’s financial condition, (xii) Sub-Merchant is no longer in good standing with any Card Brand, (xiii) Sub-Merchant ceases to do business as a going concern, or there is a change in ownership of Sub-Merchant which changes the identity of any person or entity having, directly or indirectly, more than 25% of either the legal or beneficial ownership of Sub-Merchant without Rectangle’s prior written consent; (xiv) Sub-Merchant ceases to be in compliance with Rectangle’s underwriting or risk guidelines for any reason, including without limitation due to any change in Sub-Merchant’s business or operations or any change to Rectangle’s underwriting guidelines, or (xv) Sub-Merchant is otherwise in default of any terms or conditions of this Agreement whether by reason of its own action or inaction or that of another, and fails to cure such default within thirty (30) days of Rectangle’s notice of default if such default is capable of being cured. In addition to, and not in limitation of the foregoing, Rectangle may refuse to provide the Services in the event it has not been paid for the Services as provided herein.
On any termination of this Agreement, Sub-Merchant will immediately cease using the Services and the Account. Rectangle will have the right to delete all Account information on any termination hereof, but it also has the right to retain copies in its ordinary course. Rectangle and Bank will not have any liability to Sub-Merchant resulting from a termination of this Agreement. Upon termination of this Agreement, any pending Transactions will be cancelled. Any funds that the Bank is holding in custody for Sub-Merchant at the time of closure (other than in the Reserve), less any applicable Fees and other liabilities of Sub-Merchant, will be paid out to Sub-Merchant according to Sub-Merchant’s payment schedule. Bank may also withhold such funds pending investigation of Sub-Merchant’s Transactions or potential liabilities hereunder. The funds in the Reserve will be returned, if any amount is due to Sub-Merchant in accordance with Section 13. Upon termination for any reason, Sub-Merchant will remain liable for any and all Fees or costs accrued prior to or following termination and any other amounts owed by Sub-Merchant to Rectangle, Bank, or Card Brands. All obligations of Sub-Merchant incurred or existing under this Agreement as of the date of termination will survive such termination.
Upon termination of this Agreement, if Sub-Merchant requests assistance from Rectangle with moving to a new payments provider, Sub-Merchant agrees to pay Rectangle for its then-current fees associated with such deconversion services as provided by Rectangle; provided, however, in no event is Rectangle obligated to provide deconversion services to Sub-Merchant.
Sub-Merchant may use the trademarks and service marks of Rectangle and the Card Brands (“Marks”) as provided by the Operating Regulations and subject to the sole discretion and approval of Rectangle. Upon termination of this Agreement, Sub-Merchant agrees that it will no longer use the Marks or anything similar to the Marks. Rectangle reserves all rights not expressly granted to Sub-Merchant in this Agreement. Rectangle owns the title, copyright and other worldwide intellectual property rights in the Services and Platform and all copies of the Services and Platform. This Agreement does not grant Sub-Merchant any rights to Rectangle’s intellectual property, trademarks or service marks, nor may Sub-Merchant remove, obscure, or alter any of Rectangle’s trademarks or service marks included in the Services. All comments and suggestions concerning the Services or Platform provided to Rectangle will be the property of Rectangle and Sub-Merchant will not have any rights therein. Sub-Merchant acknowledges that (i) it will not acquire any right, title, or interest in or to the Marks of any Card Brand, (ii) the Card Brands are the sole and exclusive owners of their Marks, (iii) Sub-Merchant will not contest the ownership of any Card Brand’s Marks, and (iv) that any Card Brand may prohibit Sub-Merchant from using their Marks (and in such case, Sub-Merchant will immediately comply with such prohibition). Sub-Merchant will not assign to any third party any of the rights to use the Marks of any Card Brand.
Sub-Merchant will indemnify, defend, and hold harmless Rectangle, and its directors, officers, employees, affiliates agents, principals, successors, and assigns (each an “Indemnitee” and collectively, “Indemnitees”) from and against all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by any Indemnitee resulting from or arising out of: (i) the Services in this Agreement, (ii) Sub-Merchant’s processing activities, (iii) the business of Sub-Merchant or its Customers, (iv) any sales Transaction acquired by Rectangle or Bank, (v) Sub-Merchant’s negligence, willful misconduct, breach of this Agreement or any noncompliance with any applicable law, the Operating Regulations, or any other rules or regulations promulgated by or in conjunction with the Card Brands, (vi) any issue, problems, or disputes between Sub-Merchant and any Customer, Cardholder, Merchant Supplier or Third Party Servicer, (vii) any information provided by Sub-Merchant on which Rectangle relied in determining to grant, extend, or continue Services that was inaccurate, misrepresented or fraudulent, (viii) any Data Incident, any infiltration, hack, breach, or violation of the processing system of Sub-Merchant, Merchant Supplier or any other third party processor or system, or (ix) by reason of any breach or nonperformance of any provision of this Agreement on the part of the Sub-Merchant, or its employees, agents, or customers. In addition, Sub-Merchant will indemnify and hold Rectangle and Bank harmless from and against any liability arising on account of or in relation to the failure by Sub-Merchant to obtain consent and/or authorization from Customers related to their Transactions. Sub-Merchant assumes full responsibility for the use of its Account and the access credentials thereto and will indemnify Rectangle for any and all claims, losses or other liabilities arising therefrom. Sub-Merchant will also indemnify and hold harmless Rectangle, Processor, Bank and their respective shareholders, directors, officers, and employees harmless from any and all claims, losses or other liabilities arising from or in relation to Sub-Merchant’s relationship with its Customer or any Product, including any and all costs associated with the legal defense related to such claims. The indemnification obligations under this Agreement survive termination of this Agreement.
Sub-Merchant represents to Rectangle and Bank that: (i) Sub-Merchant is eligible to register and use the Services and has the authority and capacity to enter into and perform under this Agreement, (ii) the name identified by Sub-Merchant when Sub-Merchant registered is Sub-Merchant name or business name under which Sub-Merchant sells the Products, (iii) each Transaction submitted or originated by Sub-Merchant will represent a bona fide sale by Sub-Merchant, (iv) any Transactions submitted by Sub-Merchant will accurately describe the Product sold and delivered to a Customer, (v) Sub-Merchant will fulfill all of Sub-Merchant’s obligations to each Customer for which Sub-Merchant submits a Transaction and will resolve any consumer dispute or complaint directly with the Customer, (vi) Sub-Merchant and all Transactions initiated by Sub-Merchant will comply with all applicable laws, regulations, and the Operating Regulations, including the ownership and use of Card Brand Marks, (vii) except in the ordinary course of business, no Transaction submitted by Sub-Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Sub-Merchant entity, (viii) Sub-Merchant will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Services, and (ix) Sub-Merchant is responsible and liable to Rectangle and Bank for the acts and omissions of Sub-Merchant’s officers, directors, employees, agents, and other representatives in connection with the Services.
THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. USE OF THE SERVICES IS AT SUB-MERCHANT’S OWN RISK. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, RECTANGLE AND BANK DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUB-MERCHANT ACKNOWLEDGES THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND SUB-MERCHANT ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
WITHOUT LIMITING THE FOREGOING, RECTANGLE IS NOT LIABLE FOR LOST PROFITS, LOST BUSINESS, OR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (WHETHER OR NOT ARISING OUT OF CIRCUMSTANCES KNOWN OR FORESEEABLE BY RECTANGLE) SUFFERED BY SUB-MERCHANT, ITS CUSTOMERS (INCLUDING CARDHOLDERS) OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER. IN NO EVENT IS RECTANGLE LIABLE FOR ANY DAMAGES OR LOSSES (INCLUDING LIABILITY ASSESSMENTS) THAT ARE WHOLLY OR PARTIALLY CAUSED BY THE SUB-MERCHANT, OR ITS EMPLOYEES, AGENTS, OR MERCHANT SUPPLIERS. IN ADDITION, IN NO EVENT IS RECTANGLE LIABLE FOR ANY DAMAGES OR LOSSES THAT ARE WHOLLY OR PARTIALLY CAUSED BY RECTANGLE OR ITS EMPLOYEES, AGENTS OR MERCHANT SUPPLIER OR THAT SHOULD HAVE BEEN REPORTED TO RECTANGLE PURSUANT TO THIS AGREEMENT, OR THAT FIRST OCCURRED, WHETHER OR NOT DISCOVERED BY SUB-MERCHANT, MORE THAN THIRTY (30) DAYS PRIOR TO RECTANGLE’S RECEIPT OF WRITTEN NOTICE FROM SUB-MERCHANT.
RECTANGLE’S LIABILITY RELATED TO OR ARISING OUT OF THIS AGREEMENT WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) ACTUAL MONETARY DAMAGES INCURRED BY SUB-MERCHANT OR (B) FEES PAID TO AND RETAINED BY RECTANGLE FOR THE PARTICULAR SERVICES IN QUESTION FOR THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH RECTANGLE RECEIVED A WRITTEN NOTICE FROM MERCHANT DETAILING RECTANGLE’S ALLEGED MATERIAL NONPERFORMANCE UNDER THIS AGREEMENT. RECTANGLE WILL NOT BE DEEMED TO BE IN DEFAULT UNDER THIS AGREEMENT OR LIABLE FOR ANY DELAY OR LOSS IN THE PERFORMANCE, FAILURE TO PERFORM, OR INTERRUPTION OF ANY SERVICES RESULTING, DIRECTLY OR INDIRECTLY, FROM A FORCE MAJEURE EVENT.
ANY RESTRICTION ON RECTANGLE’S LIABILITY UNDER THIS AGREEMENT WILL APPLY IN THE SAME MANNER TO PROCESSOR AND BANK. IN THE EVENT MERCHANT HAS ANY CLAIM AGAINST BANK ARISING IN CONNECTION WITH THE SERVICES, RIGHTS, AND/OR OBLIGATIONS DEFINED THIS AGREEMENT, SUB-MERCHANT WILL PROCEED AGAINST RECTANGLE (SUBJECT TO THE LIMITATIONS AND RESTRICTIONS HEREIN), AND NOT AGAINST BANK OR PROCESSOR, UNLESS OTHERWISE SPECIFICALLY SET FORTH IN THE OPERATING REGULATIONS. THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
Certain Card Brands may require that Sub-Merchant enter into a direct contractual relationship with the Bank if certain criteria is met. Such criteria may be modified the Card Brands from time-to-time. Sub-Merchant must immediately notify Rectangle if it has, or in Sub-Merchant’s reasonable opinion will have greater than $1,000,000 in annual Card sales volume processed with any one Card Brand. If required by the Card Brands, the Operating Regulations or Bank, Sub-Merchant will automatically become party to a direct processing agreement with Bank (“Direct Agreement”). The Direct Agreement, if applicable, is incorporated herein by reference. Rectangle may, at its option, also be a party to the Direct Agreement. The Direct Agreement will be independently enforceable by Bank. If any provisions in this Agreement conflicts with the Direct Agreement, the Direct Agreement will control as between Bank and Sub-Merchant and this Agreement will control as between Sub-Merchant and Rectangle. Sub-Merchant is solely responsible for monitoring its processing volume and upon meeting such Card Brand criteria or threshold, Sub-Merchant’s continued use of the Services will be deemed Sub-Merchant’s consent to be bound by the terms of the Direct Agreement. In the event of any inconsistency or conflict between any provision of this Agreement or the Direct Agreement and the Operating Regulations, the Operating Regulations will govern.
Unless otherwise required by law, Sub-Merchant will, and will cause its Affiliates to, hold in strict confidence at all times following the Effective Date all Rectangle, Bank and Processor Confidential Information, and neither Sub-Merchant nor any of its Affiliates will use such Confidential Information for any purpose other than for the performance of Sub-Merchant’s duties and obligations hereunder. Sub-Merchant agrees to treat Confidential Information with the same degree of care and security as it treats its most confidential information, but in no circumstance less than a reasonable degree of care.
If Sub-Merchant breaches, or threatens to breach, any of the provisions of this section, in addition to any other rights Rectangle may have, including a claim for damages, Rectangle will have the right to have the provisions of this section specifically enforced, and Sub-Merchant’s breach or threatened breach enjoined, by any court of competent jurisdiction, without presentment of a bond (such requirement being expressly waived by Sub-Merchant), it being agreed that any breach or threatened breach of this section would cause irreparable harm to Rectangle in that money damages would not provide an adequate remedy. This Section survives termination of this Agreement.
This Agreement is governed by, and construed and enforced in accordance with, the laws of the State of York without regard to conflicts of law provisions. The parties consent and submit to service of process, personal jurisdiction, and venue in the state and federal courts in Westchester, State of New York, and select such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this Agreement, and/or pertaining in any way to the relationship between Sub-Merchant and Rectangle. SUB-MERCHANT AND RECTANGLE WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED UNDER THIS AGREEMENT.
UNLESS OTHERWISE REQUIRED BY LAW, NO CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF FORM, WILL BE BROUGHT BY SUB-MERCHANT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. ANY CLAIMS NOT BROUGHT BY SUB-MERCHANT WITHIN SUCH TIME PERIOD SHALL BE WAIVED AND BARRED.
Except as provided in this Agreement, this Agreement including any addendum or schedule or exhibit hereto may only be modified or amended by an instrument in writing signed by Sub-Merchant and Rectangle. Notwithstanding the foregoing, Rectangle may modify this Agreement upon thirty (30) days prior written notice to Sub-Merchant (including electronically via email or online through one of Rectangle’s standard communication channels). In addition, Sub-Merchant agrees that Rectangle may amend this Agreement immediately upon notice to Sub-Merchant in accordance with Rectangle’s standard operating procedures if such amendment is required: (i) in order to comply with applicable law, Operating Regulations, or other Card Brand requirements, (ii) by Bank, (iii) by Rectangle’s Third Party Servicer; (iv) or to pass through charges from third parties, including but not limited to Processor, Bank, Card Brands, or Third Party Servicers. Sub-Merchant’s continued use of the Services after the effective date of any such amendment or modification shall constitute Sub-Merchant’s acceptance of and agreement to such modifications. Any changes, additions, stipulations, or deletions, including lining out, by Sub-Merchant, except where indicated by a space to be filled in on the Application (e.g., the space for Sub-Merchant’s name and address), will not be deemed to be agreed to or binding upon Rectangle unless agreed to in writing in the form of an amendment signed by Sub-Merchant and Rectangle.
The relationships of the parties to this Agreement will be solely that of independent contractors, and nothing contained in this Agreement will be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties will be construed to make them joint ventures or partners with each other. Neither party will do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors. Sub-Merchant is responsible for ensuring compliance of its employees, agents, contractors, third party providers, and affiliates with the terms of this Agreement. Further, Sub-Merchant expressly acknowledges and agrees that it is assuming the risk of its employees, agents, contractors, third party providers, and affiliates compliance with all provisions of the Operating Regulations, regardless of whether Sub-Merchant and/or its employees, contractors, third party providers, and affiliates have possession of those provisions. Both Mastercard and Visa make excerpts of their respective Operating Regulations available on their internet sites.
If an individual executes this Agreement on behalf of Sub-Merchant as a guarantor following a request by Rectangle, then such individual personally guarantees performance by the Sub-Merchant hereunder, will be deemed to be a Guarantor for all purposes, and will be joint and severally liable with Sub-Merchant for all liabilities of the Sub-Merchant hereunder. This is a guaranty of payment and not of collection, and Rectangle may seek recourse or receive payment from Guarantor prior to: (i) taking steps to collect amounts owed from Sub-Merchant; (ii) taking steps to enforce, accept, or perfect Rectangle’s interest in any collateral (including but not limited to amounts in the Reserve or Settlement Account), or (iii) in any other respect exercise any diligence in collecting or attempting to collect the amount by any means. Guarantor’s liability must be absolute and unconditional, and must not be discharged for any reason other than the final and full payment to Rectangle of all amounts due under this Agreement. Guarantor jointly and severally agrees to pay all of Rectangle’s costs incurred in enforcement of or collection under this guaranty, including without limitation reasonable attorney’s fees and expenses. This guaranty is freely and voluntarily given, and Guarantor recognizes that Rectangle would not enter into this Agreement without such guaranty if so requested by Rectangle. Guarantor understands and agrees that this guaranty is subject to the exclusive choice of law and venue requirements as those set forth in this Agreement and agree not to bring any action in any other venue. Guarantor waives, to the fullest extent possible under law, the defense of forum non conviens. Guarantor agrees that notice may be provided to by personal delivery or sending notification to Sub-Merchant in accordance with the notice provisions of this Agreement. If any portion of this guaranty is determined to be invalid, illegal, or unenforceable, such provision will remain enforceable to the fullest extent permitted by law and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. This personal guaranty will survive termination of this Agreement.
The Sub-Merchant may not assign or otherwise transfer any or all of its rights or obligations under this Agreement (including by operation of law or through a change of control or reorganization) without Rectangle’s prior written consent, and any assignment without such prior written consent will be null and void. Rectangle and Bank may assign any of their rights or obligations hereunder to a third party upon providing electronic notice to Sub-Merchant through the Account.
No failure, delay of forbearance of either party in exercising any power or right hereunder will in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or nonperformance by either party of any terms of conditions hereof. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and the unenforceable provision will be enforced to the maximum extent permissible under law. Nothing in this Agreement will be construed or be deemed to create any rights or remedies in or for the benefit of any third party. All schedules attached to this Agreement are hereby made a part of this Agreement for all purposes. This Agreement represents the entire understanding between the parties hereto with respect to the matters contained herein and supersedes all prior oral or written agreements, understandings or communications between them with regard to such subject matter. The Agreement may be executed in two (2) or more counterparts, each of which are deemed an original, but all of which together constitute one and the same instrument. Each party may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies. If this Agreement is presented electronically, by clicking “I Accept” or “Agree” or by checking the box designating acceptance of this Agreement, such action will constitute a legally binding signature to this Agreement on behalf of the person or entity set forth on the Application. If an entity is set forth on the Application, or if the person accepting this Agreement is different than the person listed on the Application, the person accepting this Agreement represents and warrants that they have all requisite authority and approval to legally bind the person or entity set forth on the Application. By signing this Agreement, electronically or otherwise, the signor and Sub-Merchant represent and warrant to Rectangle that all information provided on or in connection with the Application is true, complete, and not misleading.
Sub-Merchant acknowledges that Rectangle will receive and handle Data in connection with Rectangle’s performance under this Agreement, whether received directly from Sub-Merchant or through the Platform. Sub-Merchant further acknowledges, agrees, and consents to Rectangle’s right to receive, access, process, transmit, store, and create derivative works of the Data: (i) as reasonably required for Rectangle to perform its respective obligations hereunder, (ii) to monitor and report fraud or other unlawful or suspicious activities by Cardholders, Customers, or any third party, (iii) to develop and improve Rectangle’s products and services, (iv) as required to comply with court order, government investigation, industry self-regulatory guidelines, or other legal requirements and operations of applicable law, and (v) in furtherance of its other business operations and commercial purposes. Furthermore, Sub-Merchant permits Rectangle to share Data with the Card Brands, Processor, and Bank, and each of the foregoing may use the same without restriction for marketing, analysis, transactions or relationship communication, and any other lawful business purpose. Separate from and in addition to any other representation or warranty herein contained, Sub-Merchant represents and warrants that: (a) it possesses all necessary rights, authorizations, licenses, and consents to provide Data to Rectangle (and for Rectangle to subsequently use and access such Data) as set forth herein, including without limitation such authorizations and consents required under applicable laws and regulations governing data privacy, information security, and consumer protection, and (b) the Data does not infringe, misappropriate, or otherwise violate the personal or proprietary rights of any third party.
Notwithstanding any other provision of this Agreement, neither party will be liable for any failure, inability to perform, or delay in performance under this Agreement, if such failure, inability, or delay be due to acts of God, war, civil commotion, governmental action, fire, explosion, strikes, other industrial disturbances, equipment malfunction that is beyond its reasonable control, or any other cause that is beyond its reasonable control (each a “Force Majeure Event”). The party experiencing the Force Majeure Event must provide immediate written notice to the other party. This Section does not apply to excuse a party’s failure to make payments when due or failure to comply with applicable law. Such party’s performance will be excused for only so long as such party continues to use commercially reasonable efforts to mitigate the effect and duration of such Force Majeure Event. The parties will promptly resume performance hereunder after the Force Majeure Event has passed; however, if a delay continues for sixty (60) days or more, the party not experiencing the Force Majeure Event may terminate this Agreement without penalty upon written notice to the other party.
Sub-Merchant shall notify Rectangle within five (5) days upon filing of voluntary or involuntary bankruptcy proceedings by or against Sub-Merchant. The parties acknowledge that this Agreement constitutes an extension of financial accommodations by Rectangle to Sub-Merchant within the meaning of Section 365 of the Bankruptcy Code. The right of Sub-Merchant to receive any amounts due from Rectangle under this Agreement is expressly subject and subordinate to chargebacks, disputes, returns, recoupment, lien, set-off and security interest rights of Rectangle regardless of whether they are liquidated, unliquidated, fixed, contingent, matured, or un-matured.
Sub-Merchant represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses to provide the Products it intends to offer and that it is in compliance with the regulations of the Federal Trade Commission and the Federal Communications Commission and shall comply with all present and future federal, state and local laws and regulations of the United States pertaining to Transactions.
Rectangle, Processor and Bank may jointly or individually assert or exercise any rights or remedies provided to any of them under this Agreement. Rectangle, Processor and Bank reserve the right to allocate the duties and obligations assigned hereunder to Rectangle between themselves, as they deem appropriate in their sole discretion. Bank has certain obligations to Sub-Merchant pursuant to the Operating Regulations. In the event of any conflict between this Agreement and the Operating Regulations on the subject of Bank’s obligations, the Operating Regulations control. The Bank may be changed, and its rights and obligations assigned to another party designated by Rectangle at any time without notice to Sub-Merchant. Bank, the Card Brands, and those third parties to which Bank has delegated certain rights and obligations under this Agreement, including but not limited to Processor, are third party beneficiaries under this Agreement and may, at their sole discretion, directly enforce this Agreement against Sub-Merchant.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement will survive and remain in effect in accordance with its terms upon the termination of this Agreement. For greater certainty but without limitation, the indemnification, limitation of liability, disclaimer of representations and warranties, dispute handling, the applicability of the Operating Regulations, intellectual property, Rectangle’s right to hold and maintain any amounts in Reserve, Rectangle’s rights to set off against any amounts owed to Sub-Merchant, confidentiality clauses, and those other clauses which specifically indicate they survive, will survive termination of this Agreement. All terms in this Agreement remain in effect with respect to any Transactions or activity occurring on or prior to the date of termination of this Agreement and with respect to any fees, fines, assessments, liabilities, charges, chargebacks, proceeds, or anything else which may result therefrom.
This Fee and Regulatory Disclosure sets forth a summary of certain information in your Sub-Merchant Agreement between you (the Sub-Merchant) and us (Rectangle), on behalf of and as an agent of Processor and/or Bank, relating to the Services described in your Sub-Merchant Agreement and Application. We recommend that you thoroughly review the Sub-Merchant Agreement and Application and contact us with any questions. In the event of any conflict between the terms of the Sub-Merchant Agreement or Application and the terms of this Disclosure, the terms of the Sub-Merchant Agreement or Application will control. Capitalized terms not otherwise defined in this Disclosure have the meanings set forth in the Sub-Merchant Agreement.
Payment Facilitator Name: Rectangle Health
Address: 115 East Stevens Avenue, Valhalla, NY 10595
Rectangle customer service: Get Help
First Data Merchant Services LLC
KeyBank National Association
Term & Termination
The Initial Term of this Agreement is three (3) years from the Effective Date, and the Agreement automatically renews for additional successive two (2)-year terms until terminated. Either party may terminate the Agreement effective at the end of any Term by providing written notice to the other party at least ninety (90) days prior to the expiration of the then-current Term. In addition, Rectangle, Bank, or a Card Brand may immediately terminate the Agreement for those circumstances set forth in Section 21 of the Agreement.
Sub-Merchant will be provisionally paid by Bank for transactions after the expiration of any applicable hold period, less (a) the amount allocated to a reserve account (if any), (b) any offsets, and (c) credits associated with any fees, assessments, prior transactions, and other amounts due. This will usually be within two to three business days after a Transaction is submitted for processing, but can be up to the full time period in which any Transaction is at risk of chargeback or subject to regulatory risk. Deposits for amounts due to Sub-Merchant, and withdrawals of amounts due from Sub-Merchant, will generally be posted to the Settlement Account (which is the account designated by Sub-Merchant on the Application) by ACH, but may be collected through other means as necessary. Rectangle may revoke any provisional payment subsequently charged back or found to be invalid.
Summary of Fees & Rates
The fees and rates charged to you are set forth in Section 5 of your Application in the Section titled “Fee Schedule”. If you are unsure as to the calculation or applicability of any fee, please contact us and we will explain it in greater detail. Pricing is subject to change from time to time as set forth in the Agreement. The way the most common fees are calculated is as follows:
“Discount Rate” is a percentage of the gross amount of each transaction processed by or submitted to Rectangle. A portion of the Discount Rate is the Interchange Rate. The discount rate may be set by category (e.g., qualified, mid-qualified, and non-qualified) or set based on the Interchange Rate (e.g., the Interchange Rate plus a certain percentage). The category into which a transaction will fall depends on a number of factors, including but not limited to the card type, transaction type, payment method, authorization, and timeliness of submitting the transaction/batch. Rectangle can provide information about the category applicable to a particular transaction upon Sub-Merchant’s request.
“Interchange Rate” is a percentage of the gross amount of each transaction set by the applicable Card Brand or Other Network. The Interchange Rate varies based on the type of transaction, method of transaction, and transaction classification. “Interchange Plus” pricing is the Interchange Rate plus an additional processing cost that is set as a flat rate or percentage of the transaction amount.
Transaction Fees: Depending on the specific fee, such fees may be charged on all transactions or only specific types of transactions or may be a flat rate. For example, a PIN-Debit Fee is only charged on debit transactions requiring a PIN. Other fees will be charged as set forth for each fee, which may be upon the occurrence of an event (e.g., a Chargeback fee will be charged per each chargeback) or based on the passage of time (e.g., a monthly fee will be charged each month or portion thereof without proration). Sometimes the fee will vary based on the types of transactions submitted for processing (e.g., card present transactions vs. card not present transactions).
Equipment Fees: The payment due for the purchase or lease of equipment, and the calculation of such payment, will vary based on the type of equipment, the applicable license(s) necessary for the equipment, the term of any financing, and Sub-Merchant’s creditworthiness. The payment amount(s), and the calculation for such amounts, will be set forth in a separate purchase or lease agreement.
Card Brand Charges and Assessments: Each Card Brand or Other Network may surcharge one or more transactions based on the type of transaction, method of transaction, transaction classification, and other metrics set forth in the Operating Regulations. Merchant is responsible for reviewing the applicable Operating Regulations (available on each Card Brand or Other Network website or upon request from Rectangle) regarding applicable surcharges. The Card Brands may also impose assessments for non-compliance with the Operating Regulations.
Third Party Fees: Sub-Merchant may be subject to additional fees from third parties in connection with services from such third parties.
By signing the Application, you authorize us to research background of your business and its owners and principals, including but not limited to background checks, banking relationships, and financial history.
Sub-Merchant’s processing statements are available through the
“Account” means a unique and private account (sometimes generally known as a merchant account or MID) provided by Rectangle to Sub-Merchant in connection with the Services which is accessible through the Platform and in all instances subject to the terms and conditions of the Agreement.
“ACH” means the Automated Clearing House.
“ACH Transaction” means any ACH transaction originated by or on behalf of Sub-Merchant, conducted pursuant to the Nacha Rules and utilizing Services.
“Affiliate” means, with respect to any party, any corporation, company, partnership, or other entity which is directly or indirectly controlled by such party or is directly or indirectly controlled by a person or entity that is the same as that which controls the party. For the purposes of this definition, control means ownership of half or more of the voting interests in an entity.
“Agreement” means the written agreement between Rectangle and Sub-Merchant concerning the delivery and receipt of Services.
“American Express” means American Express Travel Related Services Company Inc. and any successor or assigns.
“Application” means an electronic or paper form completed by the Sub-Merchant in relation to procuring the Services which forms a part of this Agreements and constitutes representations by the Sub-Merchant.
“Bank” means a member of a Card Brand that has sponsored Rectangle as a payment services provider, payment facilitator or otherwise to supply the Services and that acquires Transaction funds through Card Brands. The financial institution that is acting as the Bank as of the commencement of this Agreement is identified in the attached Fee and Disclosure Page.
“Card” means Mastercard, Visa, Discover and Other Network cards, account numbers assigned to a Cardholder or other forms of payment accepted by Rectangle, for which pricing is set forth in this Agreement or on the Merchant Application.
“Card Brand” means Visa, Mastercard, Discover, or any Other Network, as the same are defined herein.
“Card Transaction” means any transaction conducted with a Card (and excluding ACH Transactions) originated by or on behalf of Sub-Merchant, that is processed through a Card Brand and conducted utilizing Services.
“Cardholder” means any person authorized to use a Card or the accounts established in connection with a Card.
“Confidential Information” means all non-public, proprietary data or information of a party which is valuable to the operation of such party’s business and is treated by such party as confidential including, but not limited to non-public financial information, know-how, trade secrets, technical processes and formulas, software, merchant lists, unpublished financial information, business plans, projections, marketing data and the terms and conditions of this Agreement.
“Content” means any material and/or data obtained by Sub-Merchant from or through the Services.
“Customer” means a client or customer of Sub-Merchant.
“Customer Data” means information associated with a Card, such as Cardholder information, account number, expiration date, track-2 data, and CVV2; information associated with a Customer’s bank account(s), including, without limitation, account numbers and bank routing numbers; and other information associated with a Customer’s Transactions.
“Data” means the data and information provided to Rectangle in connection with this Agreement and the Services (including without limitation Transaction information initially submitted by Cardholders or Customers), whether directly from Sub-Merchant or through the Platform and its features, which Rectangle uses in connection with its performance of its respective obligations hereunder.
“Data Incident” means any alleged or actual compromise, unauthorized access, disclosure, theft, or unauthorized use of a Card, Data or Customer Data or Sub-Merchant credentials, regardless of cause, including, without limitation, a breach of or intrusion into any system, or failure, malfunction, inadequacy, or error affecting any server, wherever located, or hardware or software of any system, through which Sub-Merchant credentials or Card or Customer Data resides, passes through, and/or could have been compromised.
“Discover” means Discover Financial Services, Inc. and any successor or assigns.
“Fees” means the fees for which Sub-Merchant is liable in exchange for the Services. Fees are set out in the Application. Fees may be amended in accordance with this Agreement. Fees may also change, with or without prior notice, if Card Brands or other third parties impose additional fees on Rectangle for the supply of the Services or on amendments to applicable law that require Rectangle to amend the Fees.
“Guarantor” means any Person guaranteeing the Rectangle obligations, either as indicated on the Application or otherwise.
“Liability Assessments” means any and all fines, charges, penalties, assessments, late submission charges and all other costs, expenses and indebtedness levied by a Card Brand, Bank, Processor, card issuer, Nacha, other regulatory authority or other third party that are assessed against, likely to be assessed against, charged to, likely to be charged to, incurred by (directly or indirectly) or otherwise paid by, Rectangle to the extent attributable to, arising out of, or related to Sub-Merchant’s (i) Transactions or business, or (ii) breach or alleged breach of any provision in this Agreement.
“Mastercard” means Mastercard International Incorporated and any successor or assigns.
“Merchant Supplier” means a third party used by Sub-Merchant in connection with the Services received hereunder, including but not limited to, software providers, equipment providers, and/or third-party processors.
“Nacha” means the National Automated Clearinghouse Association.
“Nacha Rules” means the operating rules and guidelines promulgated by Nacha and governing ACH Transactions or the related activities of parties involved in ACH Transactions, as amended or modified from time to time.
“Operating Regulations” means the by-laws, bulletins, operating regulations and/or all other rules, guidelines, policies and procedures of the Card Brands, and all other applicable rules, regulations and requirements of Rectangle, Bank, Processor, Nacha, or organizations, associations, or networks which govern or affect any services provided under this Agreement or Sub-Merchant’s activity, and all state and federal laws, rules and regulations which govern or otherwise affect the activities of Sub-Merchant, including, but not limited to the Federal Trade Commission (“FTC”), as any or all of the foregoing may be amended and in effect from time to time.
“Other Network” means any payment network other than Visa, Mastercard, American Express, or Discover that is identified in this Agreement or any subsequent amendment to this Agreement and in which Sub-Merchant participates hereunder.
“Platform” means Rectangle’s software-as-a-service platform through which the Services and Account access are made available to Sub-Merchant.
“PCI DSS” means the Payment Card Industry Data Security Standards, as they may be amended or modified from time to time.
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators, or other legal representatives of an individual in such capacity.
“Processor” means a processor registered with the Card Brands, as applicable, that provides authorization, clearing and settlement processing services in connection with this Agreement. The entity that is acting as the Processor as of the commencement of this Agreement is identified in the attached Fee and Disclosure Page.
“Product” means any product or service offered for sale or sold by Sub-Merchant.
“Prohibited Activity” means any activity deemed to be prohibited by the Card Brands, Rectangle or the Bank.
“Reserve” means a reserve account established and maintained to protect by Bank or Rectangle from actual or potential liabilities under the Agreement.
“Services” means the payment processing services of Rectangle and its processor and Bank provided to Sub-Merchant by Rectangle pursuant to this Agreement.
“Site” means www.rectanglehealth.com.
“Sub-Merchant” means the Person accepting the Agreement and receiving Services.
“Third Party Servicer” means a third party that provides a product or service that Sub-Merchant wishes to procure which product or service may or may not be compatible or integrated with the Services.
“Transaction” means an ACH Transaction or a Card Transaction originated by or on behalf of Sub-Merchant conducted utilizing any of the Services.
“Visa” means Visa U.S.A., Inc., Visa International, and any successor or assigns.