--------------- -----

Document 1-1 Filf5WiQ;U~9/~ 01EPage 1 of 12 PagelD #: 24 :-.:: / F ~ 'j;f22-cv-00654 

Office. 2000J2 

Rep: 650082 . A M E)~,!, ~ 100 Throckmorton Street, Sule 1800 • Fort Worth, Texas 76102 

(817) 317-9100 • Fax: (866) 460-5475 • www.iirs!-american.net Merchant ID: SIC'MCC: 5399 

MERCHANT APPLICATION & AGREEMENT 

BUSINESS NAME(S) (please print clear1y) 

EXACT LEGAL NAME(AS SHO\MII ON FEDERAL TAX RETURN): BUSNESS OBA NAME 

FAPS TEST FAPS TEST 2 5 20 

MA ILING/BILLING ADDRESS PHYSICAL STREET ADDRESS (IF DIFFERENT FROM MAILING ADDRESS): 

11 JONES ST 11 JONES ST 

OTY, STATE, ZIP C ITY, STATE, ZIP 

LAS VEGAS, NV 8911 3 LAS VEGAS, NV 8911 3 

CORPORATE PHONE # FAX# OBA PHONE # : OBA OONTACT NAME 

817 555 5555 817 555 5555 JOHN DAVIS I CORPORATE EMAIL OBA EMA IL ADDRESS 

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 11\EBSITE ADDRESS 

Sole Proprietor 

TYPE OFGOODSOR SERVICES S:>LO Hawyou ewr accepted Visa/MasterCard/American Express/Discowr/Pa)Pal? □ Yes 111 No 

MERCH IfYes, list name of mostreoent prooessor: 

Has tis businessor any associated principal been term inated as a Visa-MasterCard, Discowr. Has MERCHANT or any associated pmcipal identified below filed bankruptcy or been subject to 

PayPal or American Express merchart? □ Yes 111 No involuntary bankru~ cy? □ Yes Date: 111 No 

YEARS APPLICANT O\MIIED BUSINESS 

1 

AVERAG E HIGH &ZI Retail D Lodgng/Car Rental 

Requested licket Size•: $50.00 Card Swipe: 100% $500.00 

AVERAGE: HIGH o Restaurant D B2B 

Monthly Volume*: $ l 500.00 $3000.00 Ma,ual with Imprint.Card Present: 0% 

o Service ty Governm t 

Annual Volume*: $20000.00 Mail/Telephone Ord er. 0% 

o Seasonal 

'"The Ticket Size ard Monhly Volun'e am:,U'ds are SJl::ject lo credtapproval Internet: 0% 

o Internet 

BANK ACCOUNT INFORMATION (attach voided check) Total: 100% O MOTO 

NAME OF BANK B ANK CONTACT: BANK PHONE # 

CHECKING ACCOUNT # ROUTING/TRANSIT # · DATE OPENED· 

X (9 DIGITS) 

RESIDENCE ADDRESS O TY STATE ZIP %OWNERSHIP 

11 JONES ST LAS VEGAS NV 8911 3 100 

2 LEGAL FIRST NAME: IFULL LEGAL MIDDLE NAME LEGAL LAST NAME TITLE SSN· PHONE # 

DAT E OF BIRTH X 

RESIDENCE ADDRESS OTY STATE: ZIP % O\MIIERSHIP 

f'ederal Beneficial Owner(s) regulations require the above information for each individual who owns 25% or more of the legal entity or an individual responsible for managing the 

legal entity (e.g., Chief Executive Otncer, Chief Financial Officer, Managing Member, General Partner, President, Vice President, Treasurer), 

o Office Building o Residence arehouse D Other: 

THE MERCHANT: 

&ZI Owns o Leases the Business Premises Landlord/Business Premises Owner NclTle & Phone Number: 

I hereby verify that this application has been fully rompleted by the Merchant Appi cant and that I have physically inspected the business premisesof the Merchant at this address, 

and the inbrmation stated above is true and rorrect to the best of my knowledge and beief. 

REPRESENTATIVE SIGNATURE OFFICE # REP#. DATE 

First American 10.01.19-1 First American Pa)fllent Systems isa registered ISOof Fifth Third Bank, NA, Oncinnati, OH PAGE 1 

Exhibit 1 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003519 
Merchant OBA Name: FAPS test 2-5-20 

Merchant Application & Agreement, continued 

Rates & Fees 

VISA® I MASTERCARD® I AMERICAN EXPRESS® I DISCOVER® t PAYPALTM CREDIT/CHECK CARD RATES 

Card Types to be Accepted(Visa/MasterCard): r;;,i Both □ Credit/Business □ Consumer Signature Debit 

Please note: If MERCHANT elects not to accept "both", additional registration is required by Visa and MasterCard, and approval of the merchant account will be delayed until all 

necessary forms are submitted. 

Discount Rate:3-25% Transaction Fee:$0.25 

The above Discount Rate(s) are for Qualified Check Card and/or Credit Card Transactions only. Discount Rates are based on several factors, including 

but not limited to: Merchant's business type, method of sale, processing procedures, and type of card accepted for payment The previously mentioned factors 

and/or deviations from the standards established by Visa/MasterCard/Discover/PayPal will result in increased Discount Rates. Visa/MasterCard/Discover/PayPal 

transactions that do not fall within the above Qualified Discount Rates will be charged an additional 1.51 % for Mid-Qualified transactions and 1.98% for NonQualified transactions. See paragraph 27 of the Merchant Credit Card Processing Terms & Conditions for additional information. In addition to the Per Item Fee, 

the Transaction Fee listed above will also be assessed on each check card transaction. 

If Merchant accepts debit or EBT transactions and Debit/EBT fees on the Merchant Application and Agreement are not completed, debit and EBT transactions 

will be assessed with the transaction/authorization fee listed above and debit interchange will be billed at pass-through rates. 

American Express rates are based on the actual amount of each transaction and will be assessed a 0.30% charge for any non-swiped or digitally enabled 

transactions. See the American Express Card Acceptance Terms & Conditions for additional information and terms of use. AMEX prepaid transactions will be 

processed at the AMEX Discount Rate stated above. Eligible Merchants will be set up with the above listed AMEX rate(s) through American Express' OptBlue 

program, if available. If Merchant's account is not eligible for the OptBlue program, Merchant will be set up directly with American Express under their current 

rates. 

OTHER FEESt (See paragraph 27 in the Merchant Credit Card Processing Terms & Conditions for information relating to these and other fees.) 

Annual Fee: $95.00 AVS Fee: $0.025 per transaction 

Batch/Settlement Fee: $0.25 per batch Breach Fee: $4.95 per month 

Chargeback Fee: $25.00 per item DOA/OBA Change Fee: $35.00 per request 

Monthly Maintenance Fee: $7-50 per month Monthly Minimum: $25.00 

Regulatory Compliance Fee: $3-42 per month Retrieval Fee: $10.00 per item 

Return Draft Fee: $30.00 per item Voice Authorization Fee: $0.95 per request 

r;;,i Daily Discount □ Monthly Discount 

Monthly Funding Fee Cap: The Monthly Funding Fee Cap applies to each card brand. 

Monthly Funding Fee Percent: 

Would Merchant like to receive American Express marketing materials? i;Wes No (See the American Express Card Acceptance Terms & Conditions for additional information.) 

tAdditionally dues, fees, and assessments ("DF&A") will be assessed on each transaction. DF&A for each card brand will be reflected as a separate line item on 

Merchant's monthly statement The following brand-related fees may be assessed or be itemized on Merchant's statements: Auth Processing Fee for VS Credit 

(AUTH PRC CR VS), Auth Processing Fee for VS DB (AUTH PRC DB VS), Auth Processing Fee for VS International Credit (AUTH PRC CR INTL VS), Auth 

Processing Fee for VS International DB (AUTH PRC DB INTL VS), Non-Settle Fee for VS (NON STL VS TRAN), Transaction Integrity Fee for VS (TIF FOR VS 

TRAN), Zero Floor Limit for VS (NO AUTH VS TRAN), Cross Border Fee for VS (XBRD FOR VS VOL), International Assessment Fee for VS (INTL FOR VS 

VOL), Fixed Acquirer Network Fees for VS (NTWK FEE FOR VS), Base II System File Transmission Fee for VS (TRANSMISSION VS), Network Acquirer Brand 

Usage Fee or NABU / Safety Net for MC (BRNO USG FEE/SAFETY NET MC), Processing Integrity Fee-Preauthorization (PREAUTH-MC), Processing Integrity 

Fee-Undefined Authorization (UNDEF AUTH-MC), Processing Integrity Fee-Final Authorization (FNL AUTH-MC), Processing Integrity Fee-Final AuthorizationMinimum (FNL AUTH MIN-MC), Nominal Amount Authorization MC (NOM AMT AUTH-MC), Global Acquiring Program Fee for MC (ACQ PRG MC VOL), Cross 

Border Fee for MC (XBRD FOR MC VOL), Network Fee for MC (NTWK FEE FOR MC), Digital Enablement Fee for MC (DGT ENBL MC VOL), Merchant 

Location Fee for MC (MER LOC FEE-MC), Excessive Authorization Attempts-MC (EXCESSIVE AUTH ATTEMPTS-MC), Acquirer Interchange Compliance 

Downgrade Fee-MC (INT COMP DWNGRD-MC), Acquirer Transaction Fee-Quantity based 3D Secure MasterCard Identity Check (3DS VOL FEE-MC), 

Acquirer Transaction Fee-Amount based 3D Secure MasterCard Identity Check (3DS TRANS FEE-MC), Data Usage for OS (DAT USG OS TRAN), International 

Processing Fee for OS (INTL PRC OS VOL), International Service Fee for OS (INTL SRV OS VOL), Inbound Fee for AX (INBOUND AX VOL), Assessment fee 

for AX (ASSESSMENT FEE-AX), Non-Swiped Transaction Fee for AX (NONSWIPE AX VOL) and Non-swiped Application-initiated Transaction Fee 

(NONSWIPE APP INT AX VOL). 

First American 10.01.19-1 PAGE 2 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003520 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 2 of 12 PageID #: 25 
Merchant OBA Name FAPS test 2-5-20 

Merchant Application & Agreement, Case 4:22-cv-00654 continued Document 1-1 Filed 07/29/22 Page 3 of 12 PageID #: 26 

=--== I 

AMERICAN ft,;;_ hr.sCl(Q\I l."Jnve:; PC!}/'€::;r� 

100 Throckmorton Street. Suite 1800 • Fort Worth. Texas 76102 ACKNOWLEDGEMENTS (817) 317 9100 • Fax: (866) 460 5475 • www.first--arnerican.net 

Merchant and each Guarantor by signing below acknowledge to have received and read the Merchant Application & Agreement and the Merchant Processing Terms & Conditions as part of an aplication 

for Merchant Processing and related services

Member Bank Disclosure: The responsibilities listed below do not supersede terms of the Merchant Application & Agreement or Merchant Terms & Conditions and are provided to ensure Merchant 

understands the important obligations of each party

Member Bank (Acquirer) Information: 

Acquirer Name: Fifth Third Bank, NA 

Acquirer Address: Attn: Relationship Manager, 38 Fountain Square Plaza, Cincinnati, OH 45263 

Contact Phone 817-317-2996 

Acquirer Phone: 866-250-9764 

Important Member Bank (Acquirer) Responsibilities: Important Merchant Responsibilities: 

1. Fifth Third Bank, NA is the only entity approved to extend acceptance of MasterCard® and 1 Ensure compliance with card holder data security and storage requirements (See '1!21 of the 

Visa® products directly to a Merchant Merchant Processing Terms & Conditions ) 

2 Fifth Third Bank, NA must be a principal (signer) to the Merchant Agreement 2 Maintain fraud and chargebacks below acceptable thresholds

3 Fifth Third Bank, NA is responsible for educating Merchants on pertinent MasterCard® and 3 Review and understand the terms of the Merchant Agreement

Visa® Operating Regulations with which Merchants must comply 

4 Fifth Third Bank, NA is responsible for settlement of funds to the Merchant 4 Comply with MasterCard®, Visa®, American Express®, Discover®, and PayPalTM Operating 

Regulations 

5 Fifth Third Bank, NA is responsible for all funds held in reserve that are derived from 

settlement 

ACKNOWLEDGEMENTS 

Debit/Credit Authorization: MERCHANT hereby authorizes Fifth Third Bank, NA, an Ohio banking corporation, Member FDIC and First American Payment Systems, L P ("Bank') to initiate Automated 

Clearing House ("ACH") debit/credit entries to any bank account for all fees, costs, and amounts due to Bank or payable to MERCHANT pursuant to this Merchant Application & Agreement and ACH rules 

and regulations In the event that a credit or debit entry is erroneously initiated, MERCHANT authorizes Bank immediately to correct such error The authorizations set forth herein shall remain in full force 

and effect until all obligations of MERCHANT to Bank have been performed in full and Bank has received payment of all fees, costs, and amounts due or which may become due from MERCHANT This 

authorization extends to all entries including, but not limited to, lease, rental or purchase agreements for POS terminals and/or accompanying equipment and amounts due for supplies and materials

MERCHANT/Applicant authorizes the Bank, American Express, and any other credit reporting agency employed by Bank, or any other agent of Bank, to make inquiries the Bank deems appropriate

including but not limited to background investigations, credit reports, and other lawful sources to screen, investigate verify monitor or research any information obtained from merchant or contained herein 

for the purpose of this application or any application for accompanying POS terminal(s) or equipment financing MERCHANT authorizes Bank to release information disclosed on the Merchant Application 

& Agreement and/or information regarding MERCHANT's transactions and experiences between Bank and MERCHANT to Bank's vendors, affiliates, third parties or business partners, and to use stated 

information for marketing and administrative purposes MERCHANT may not change or alter its account information without thirty (30) days prior written notification to Bank and the execution of any forms or instruments deemed reasonably necessary by Bank

MERCHANT and/or Guarantor certifies that the information supplied in the Merchant Profile Section is accurate and acknowledges that the requested amounts must be approved by Bank Any variance to 

this information as approved by Bank could result in delayed and/or withheld settlement of funds Also, see paragraph 28 of the Merchant Processing Terms & Conditions 

This Agreement shall continue in full force and effect for a term of 36 months from approval by Bank and is subject to an Early Termination Fee of no less 

than $495.00*. Also, see paragraph 23 of the Merchant Processing Terms & Conditions. 

All parties mutually agree that this is a commercial contract between businesses, not a consumer contract. 

IMPORTANT NOTICE: All information contained in this application was supplied by Merchant and/or Guarantor First American Payment Systems, L P and/or Fifth Third Bank, NA, an Ohio banking 

corporation, Member FDIC shall not be responsible for any change in printed terms unless specifically agreed to in writing by an officer of First American Payment Systems, L P and/or Fifth Third Bank, 

NA, an Ohio banking corporation, Member FDIC First American Payment Systems, L P may exercise the legal rights and receive the benefits of Fifth Third Bank, NA, an Ohio banking corporation, 

Member FDIC of all provisions, terms and conditions hereof

Assignment of Application/Agreement: This application and, if accepted by assignee hereunder in accordance with the terms and conditions of this application, this Agreement may be assigned by Fifth 

Third Bank, NA, an Ohio banking corporation, Member FDIC, and/or First American Payment Systems, L P (hereinabove defined as "Bank'), or their respective affiliates or subsidiaries, to third parties 

without prior notice to MERCHANT In the event of such assignment, all rights and obligations of Bank set forth in this application and this Agreement will be assumed by such third party or parties By 

signing below, MERCHANT hereby consents to such assignment. 

MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN ACCEPTED BY FIRST AMERICAN 

PAYMENT SYSTEMS, L.P., AND/OR FIFTH THIRD BANK, NA, AN OHIO BANKING CORPORATION, MEMBER FDIC AND A MERCHANT NUMBER IS ISSUED. 

MERCHANT and each Guarantor by signing below acknowledge to have received, read, and be bound by the Merchant Application & Agreement and the Merchant Processing Terms & 

Conditions. By signing below, MERCHANT acknowledges no verbal agreements or representations have been made and MERCHANT and Guarantor have relied solely on the Merchant 

Application & Agreement and the Merchant Processing Terms & Conditions.The undersigned personally warrants and represents that the persons identified in numbers 1 and/or 2 have the authority 

to execute the Merchant Application & Agreement and the MerchantProcessing Terms & Conditions on behalf of the herewith in named entity and bind the entity to the Merchant Processing Terms & 

Conditions

By signing below, the undersigned hereby certifies, to the best of their knowledge, that the information provided in the Owners/Certification of Beneficial Owner(s) section is complete and correct 

PRINT LEGAL NAME OF MERCHANT BUSINESS AS SHOWN ON FEDERAL TAX RETURN - DO NOT SIGN INCOMPLETE DOCUMENT 

IFAPS test 

Jon Doe owner 2/5/2020 11 :08:47 AM 

#1 FROM APPLICATION - SIGNATURE TITLE DATE 

#2 FROM APPLICATION - SIGNATURE TITLE DATE 

INDIVIDUAL GUARANTY (NO TITLES) 

The undersigned jointly and severally (if more than one) unconditionally guarantee to Fifth Third Bank, NA, an Ohio banking corporation, Member FDIC, First American Payment Systems, L P , and 

theirsuccessors and assigns ("First American") the full and prompt payment when due and performance of all the obligations of every kind of MERCHANT arising directly or indirectly out of the 

MerchantApplication & Agreement, Merchant Processing Terms & Conditions and all amendments or extensions thereto (collectively the "Agreement") or any document or agreement executed and 

delivered by MERCHANT in accordance with the terms of the Agreement This is a continuing guarantee and shall not be discharged or affected by each of the undersigned, shall bind the estate, 

heirs.administrators, representatives, successors and assigns, and may be enforced by or for the benefit of any assignees or successor of First American Each of the undersigned hereby consents 

andagrees that First American may at any time, and from time to time, without notice to or further consent from any Guarantor, either with or without consideration, surrender any property or other 

securityof any kind or nature whatsoever held by it or by any person, firm or corporation on its behalf or for its account, securing the liability of MERCHANT hereby guaranteed; substitute for any collateral 

soheld by it other collateral of like kind, or of any kind; grant releases, compromises and indulgences with respect to the liability of MERCHANT hereby guaranteed and to any persons or entities now orhereafter liable therefore or hereunder; release any Guarantor of MERCHANT; or take or fail to take any action of any type whatsoever, and no such action which First American shall take or fail totake 

in connection with the Agreement or for the performance of any obligations or undertakings of MERCHANT, nor any course of dealing with MERCHANT or any other person, shall release anyGuarantor's 

obligations hereunder, affect this Guaranty in any way or afford any Guarantor any recourse against First American The undersigned agrees, consents and submits to the Courts of the State of Texas, 

County of Tarrant, and agrees that such courts shall have exclusive Jurisdiction and shall be the proper venuefor the determination of all controversies and disputes arising hereunder The undersigned 

agrees to pay all attorney fees and other expenses incurred by First American By signing below, eachGuarantor hereby agrees: (i) to have read and accepted all terms and conditions of this agreement 

contained herein, and (ii) that he/she will benefit from the services and financial accommodationsprovided to MERCHANT's business First American may proceed against any Guarantor with or without 

joining or first proceeding against MERCHANT or any other persons The undersigned further unconditionally authorize(s) FirstAmerican or its agents to investigate the information and references 

contained herein, and to obtain additional information about Guarantor(s) from credit bureaus and other lawful sources, includingpersons and companies named in the Agreement 

Jon Doe 2/5/2020 11 :08:47 AM GUARANTOR SIGNATURE #1 DATE GUARANTOR SIGNATURE #2 DATE 

I Fl RST 

First American 10.01.19-1 PAGE 3 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003521 
=--== ~'~~l!s.~.~ Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 4 of 12 PageID #: 27 

100 Throckrnorlon Street. Suite 1800 • Fort Wor1t1, Texas 76102 

PHOTOSNOIDED CHECK FORM 

(817) 317-9100 • Fax: (866) 460-5475 • www.first-american.ne1 

VOIDED CHECK/ BANK INFORMATION 

Each merchant is required to have a voided check or bank signature for ACH payment purposes and a minimum of two (2) 

photos with each application. 

Complete the written section FIRST. Then attach voided check. 

Account is: □ Checking □ Savings 

Date: 

Merchant Name: -----------------------------------

FAPS test 2-5-20 

Bank Name: ______________ Bank Phone: 

Bank Address: 

• City/State/Zip: 

• Complete section if voided check is unavailable. 

Account#: X Routing#: 

• Merchant Signature: _J_o_n_D_o_e _________________ _ Date: 2/5/2020 11 :08:47 AM 

Merchant's Bank Rep. Signature: Date: 

PHOTOS 

First Photo: Must clearly show the exterior of the business with proper D/B/A/ signage. The business name must be easily 

read in the photo. If more then one photo is needed to comply, please attach additional pages. 

Second Photo: Must show the inside of the business and merchandise displays that are typical of the type of business. Large 

stores may require more than one (1) photo. 

Outside signage clearly Inside photos showing 

showing DBA name merchandise 

STAPLE PHOTO STAPLE PHOTO 

HERE HERE 

Photos that are blurred, dark or do not cover banking requirements delay application review. 

I 

First American 10.01.19-1 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP 

PAGE 4 

FAP _0003522 
Cat. No. 10231X Form W-9(Rev. 12-2014) 

For full instructions, go to www.irs.gov/pub/irs-pdf/fw9.pdf. 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003523 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 5 of 12 PageID #: 28 

Form W•9 Request for Taxpayer Give Form to the 

(Rev. December 2014) 

Department of the Treasury Identification Number and Certification requester. Do not 

send to the IRS. 

Internal Revenue Service 

1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 

FAPS test 

2 Business name/disregarded entity name, if different from above N 

8, FAPS test 2-5-20 ell 

a.. 3 Check appropriate box for federal tax classification; check only one of the following seven boxes; 4 Exemptions (codes apply only to C certain entities, not individuals; see 0 D Individual/sole proprietor or D C Corporation D S Corporation D Partnership D TrusVestate instructions on page 3); 

.. 

Q) 

a. 5 fl') single-member LLC 

D Exempt payee code (if any) ___ _ 

~.:; Limited liability company. Enter the tax classification (C=C corporation. S=S corporation, P=partnership) ► 

2 

(.) ---- Exemption from FATCA reporting 0 Note. For a single-member LLC that is disregarded, do not check LLC; check the appropriate box in the line above for 

.5 i the tax classification of the single-member owner. code (if any) 

a: ~ D Other (see instructions) ► (Applies to accounts maintained outside the U.S.) 

!t: 5 Address (number, street, and apt. or suite no.) Requester's name and address (optional) (.) 

a. 

Q) 11 Jones St Cl) t---------------------------------------< 

6 al City, state, and ZIP code 

C/l LAS VEGAS NV 89113 

7 List account number(s) here (optional) 

11111::.t:1 •11111 Taxpayer Identification Number (TIN) 

Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid I Social security number I 

backup withholding. For individuals, this is generally your social security number (SSN). However, for a 

resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other 

entities, it is your employer identification number (EIN). If you do not have a number, see How to get a 

TIN on page 3. or 

Note. If the account is in more than one name, see the instructions for line 1 and the chart on page 4 for I 

xx-xxxxxxx 

Employer identification number 

guidelines on whose number to enter. 

Certification 

Under penalties of perjury, I certify that: 

1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 

2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue 

Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am 

no longer subject to backup withholding; and 

3. I am a U.S. citizen or other U.S. person (defined below); and 

4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. 

Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding 

because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage 

interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and 

generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the 

instructions on page 3. 

Sign I Signature of 

Here . U.S. person ► Date ► 

General Instructions • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T 

(tuition) 

Section references are to the Internal Revenue Code unless otherwise noted. • Form 1 099-C (canceled debt) 

Future developments. Information about developments a11ecting Form W-9 (such • Form 1099-A (acquisition or abandonment of secured property) as legislation enacted after we release it) is at www.irs.gov/fw9. 

Use Form W-9 only if you are a U.S. person (including a resident alien), to 

Purpose of Form provide your correct TIN. 

If you do not return Form W-9 to the requester with a TIN, you might be subject An individual or entity (Form W-9 requester) who is required to file an information 

to backup withholding. See What is backup withholding? on page 2. return with the IRS must obtain your correct taxpayer identification number (TIN) 

which may be your social security number (SSN), individual taxpayer identification By signing the filled-out form, you; 

number (ITIN), adoption taxpayer identification number (ATIN). or employer 1. Certify that the TIN you are giving is correct (or you are waiting for a number identification number (EIN), to report on an information return the amount paid to to be issued), you, or other amount reportable on an information return. Examples of information 

returns include, but are not limited to, the following; 2. Certify that you are not subject to backup withholding, or 

• Form 1099-INT (interest earned or paid) 3. Claim exemption from backup withholding if you are a U.S. exempt payee. If 

applicable, you are also certifying that as a U.S. person, your allocable share of • Form 1099-DIV (dividends, including those from stocks or mutual funds) any partnership income from a U.S. trade or business is not subject to the 

• Form 1099-MISC (various types of income. prizes, awards, or gross proceeds) withholding tax on foreign partners' share of effectively connected income, and 

• Form 1099-B (stock or mutual fund sales and certain other transactions by 4. Certify that FATCA code(s) entered on this form (if any) indicating that you are 

brokers) exempt from the FATCA reporting, is correct. See What is FATCA reporting? on 

page 2 for further information. • Form 1 099-S (proceeds from real estate transactions) 

• Form 1099-K (merchant card and third party network transactions) 
First American 10.01.19-1 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP 

PAGE 1 

FAP _0003524 

I 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 

=--== ~

Page 6 of 12 PageID #: 29 

1

~~1J£lt~ ApplicationlD: 388016 

Merchant OBA: FAPS test 2-5-20 

Office #: 200002 100 Throckmorton Street, Suite 1800 • Fort Worth, Texas 76102 Rep #: 650082 

(817) 317-9100 • Fax: (866) 460-5475 • www.first-american.net 

EQUIPMENT SETUP ORDER 

Merchant OBA: FAPS test 2-5-20 SI to Train: □ Yes IZl No 

Application ID: 388016 

IZl Daily Discount □ Monthly Discount 

Application: Retail 

Special Features: 

High Speed Connection: No 

Comments: 
=--== I ~

1

~~1J£lt~ 

100 Throckmorton Street, Suite 1800 • Fort Worth, Texas 76102 

(817) 317-9100 • Fax: (866) 460-5475 • www.first-american.net 

ApplicationlD: 388016 

Merchant OBA: FAPS test 2-5-20 

Office #: 200002 

Rep #: 650082 

Fees Total: 

Shipping & Handling: 

Grand Total: 

AGREEMENT (if no payment type selected, ACI-I payment will be used) 

DACH 

I, THE UNDERSIGNED, hereby authorize BANK or its designee to automatically withdraw all amounts owed in conjunction with the above 

Payment Receipt by initiating ACH debit entries from merchant bank account. The authority is to remain in full force and effect until all 

$0.00 

$0.00 

obligations of MERCHANT have been performed and paid in full or BANK or its designee has received written notification from MERCHANT of 

its termination in such a manner as to afford BANK or its designee reasonable opportunity to act on it. Any ACH's that are not honored by my 

financial institution for any reason will be subject to a $30.00 return check fee, which may be deducted from my account. I further authorize my 

financial institution to accept and to charge any debit entries initiated by BANK or its designees to my account. 

D Check Check Number: 

□ Credit Card Credit Card Number: 

BANK makes no warranties, expressed or implied, for any negligent design or manufacture of any equipment or software provided by BANK. 

MERCHANT also understands that BANK does not represent the manufacturer of such equipment and merchant will not make any claims against 

BANK for damages, whether consequential, direct, special or indirect relating to the equipment. BANK shall not be held responsible for any errors 

or omissions that occur in the building of VAR software by the MERCHANT'S VAR provider. MERCHANT hereby releases, indemnifies and holds 

BANK harmless for any losses, claims, costs or damages to MERCHANT or any third party as a result of errors, omissions, technical failures, 

equipment re-programming failures and problems, or unlawful actions by the MERCHANT or MERCHANT'S employees and in no event shall 

BAN K's cumulative liability exceed the amount of fees paid by MERCHANT for the account set up or transaction in question. Returned checks are 

subject to a $30 fee and, by signing below, check writer agrees that the face amount of check and returned check fees will be electronically 

debited from the check writer's bank account. MERCHANT shall be liable for and shall indemnify and reimburse BANK for any and all attorneys' 

fees and other costs and expenses paid or incurred by BANK in the enforcement hereof, including but not limited to, collecting any amounts or 

obligations due from MERCHANT. MERCHANT agrees that all Enrollment Fees are non-refundable, regardless if application(s) is declined or 

withdrawn by any party. Any returned equipment will be subject to a Restocking Fee of no less than $50. 

ALL SALES ARE FINAL. 

By signing below, you acknowledge to have read and agreed to the conditions contained herein, that you are an authorized signer for the above 

mentioned entity, and agree to pay BANK according to the terms of this agreement and the Card Issuer Agreement. 

Jon Doe 2/5/2020 11 :08:47 AM 

MERCHANT #1 FROM APPLICATION DATE 

First American 10.01.19-1 PAGE 1 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003525 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 7 of 12 PageID #: 30 
Merchant Processing Terms & Conditions 

THIS AGREEMENT is made by and belween Filth Third Bank, N. A., an Ohio banking corporation, Member FDIC, and First American Payment Systems, L.P. (collectively "BA~JK") and "MERCHAt~T." whose name and address are stated on the Merchant 

Application & Agreement. 

WHEREAS, BANK is engaged in the business of financial transaction processing which 

includes, bu! is not limiled to, the processing of and providing !or the payment ol charges 

created by the holders of bank cards bearing the Visa U.S A. Inc. ("Visa") MasterCard 

International Incorporated ("MasterCard"), American Express Travel Related Services 

Company, Inc. ("American Express"), DFS Services LLC ("Discover') and PayPal ("PayPal") 

trademarks. as well as ce11ain credit, debit, Electronic Benefits Transfer ("EBT"), and other 

electronic payment cards, each of such cards (hereinafter referred to as a "bank card"); and 

WHEREAS, Fifth Third Bank, N. A., an Ohio banking corporation, Member FDIC, has 

entered into an agreement with First American Payment Systems, L.P. ("First American") 

authonzing First American to perform !he processing functions, exercise the legal nghts and 

receive the benefits under such agreement: and 

WHEREAS, MEFlCH1\NT hereby warrants that it is engaged in a lawful business and is 

duly licensed under the laws of the state, county, and city disclosed by MERCHANT on the 

Merchant Application & Agreement, to conducl such busmess; and 

WHEREAS, MERCHA~ff currently accepts or desires to accept bank cards for its cus1omers' charitable donations or purchase of goods and services i1 provides or anticipa1es 

providing: and 

WHEREAS, MERCHANT warrants !ha! neither it nor any o! its officers, directors, parl-­

ners, managers or owners has been terminated for any reason by any bank or any processor in connection with any agreement regarding depositing or processing bank card sales 

or transactions. 

~,ow, THEREFORE, in consideration of the representations, covenanls, and prom-­

ises made herein. the receipt and sufficiency of which are acknowledged, BANK and 

MERCHANT agree as follows: 

Agreement. Reference to this "Agreement" includes the Merchant Application & 

Agreement, these Merchant Processing Terms & Conditions, the additional terms and conditions localed at www.MerchantNotification.com, all supplements, schedules, and appen-­

dices thereto, any additional location documentation, and any other documents requested 

by BANK and setting out the terms of any service provided by BA~JK in connection with 

!he Merchant Application & Agreement This Agreemenl is not in full force and e!fecl until 

accepted by BANK. B1\NK may adjust or amend the Merchant Profile section with or without notice to MERCHANT prior to accepting the Agreement. MERCHANT acknowledges 

that BANK will provide transaction processing hereunder lhrough First American or other 

third parties MERCHANT agrees that First American may perform the functions of B1\NK 

hereunder and that First American may receive the benefits of and enforce the terms of 

!his Agreement against MERCHANT and any lhird party as an assignee of BANK's rights 

hereunder, v,hether or not B1\NK is a party lo such proceeding or transaction 

2. Bank Card Authorization. MERCHANT understands and acknowledges that 

all transactions must be authorized. 

3. Transaction Records. MERCHANT agrees to balance and deliver to BANK 

all bank card transactions on the same day they are processed 

4. Payments. MERCHA~ff understands that an authorization is not a guarantee 

of payment from Bank. All payments to MERCHANT for legitimate and authorized bank 

card transactions shall be made by BANK through the !unds lrans!er system known as the 

Automated Clearing House (ACH) pursuant to governing rules adopted by the National 

Automated Clearing House Association, and shall be electronically transmitted lo an 

account of the MERCHANT. MERCHANT understands that payments are transmitled daily. 

except on weekends and bank holidays However, BANK cannot guarantee the timeliness 

with which any payment may be sent to or credited by MERCHANT's bank. MERCHANT 

understands !hat due to the nature o! the ACH and the electronic networks involved and the 

fact that not all banks belong to an ACH, errors can occur and payment to the MERCHANT 

can be delayed. In such cases, the MERCHANT agrees lo assist BANK to help resolve 

any problems in crediting MERCHANT's account. MERCHANT agrees to provide BA~lK 

three (:l) days prior written notice of any change of account and to abide by B1\NK's policies regarding changes lo accounts. MERCHANT and not BANK or any processor shall be 

responsible for verifying !hat account mformalion is correct on the Merchant Application & 

Agreement. voided check and all account statements B1\NK is not responsible for incorrect 

account numbers. Unless proper notice is provided by MERCHA~ff to BANK, MERCHANT 

shall not change any ol ils accounls. All payments to MERCHANT for the amount of bank 

card transactions properly submitted to BANK shall be less discount, credit chargebacks, 

reserve amounts, transaction fees, statement fees, and other applicable fees all of which 

are the responsibility ol MERCHA~ff. Any payment made by BANK to MERCHA~ff shall 

not be final but shall be provisional credit under the Uniform Commercial Code and is 

subject to subsequent review and verification by BANK. MERCHANT acknowledges and 

agrees that BANK shall have no obligation lo make any payment to MERCHANT with 

respect to transactions described in Sections 8, 9. and 15 of this Agreement unless and 

until MERCHA~ff provides lo BA~JK the requested documentation. If MERCHA~ff fails 

lo provide requested documentation, such payments shall be earned compensation ol 

BANK Fees and other charges due BANK hereunder may be deducted from amounts due 

MERCHANT or may be debited against any of MERCHANT's accounts at BANK's sole 

Terms and Conditions -V2 

discretion. The discount and olher lees may be collecled by BANK on a daily, monthly, or 

other basis, as determined by BANK. All reser e amounts may be deducted from amounts 

otherwise due MERCHANT, debited against MERCHA~ff's account, or paid directly by 

MERCHANT through ACH or otherwise at BANK's sole discrel1on. MERCHA~ff must noti!y 

BANK in writing of any errors on any statement within ninety (90) days after statement is 

made available on which the error or problem appeared or failed to appear. MERCHANT 

agrees to examine all statements upon receipt and to verily all credits and debits to any 

account against all transactions, bank statements and other information indicating activity 

of BA~JK and MERCHAt~T subject to or relating lo this Agreement or BANK's obligations 

hereunder. Save and except BANK's nght lo !unds owed BANK under this Agreement or 

incorrectly paid to MERCHANT, if no notice of error is received within the ninety (90) day 

period, the account shall be deemed correct and MERCHANT shall have no recourse for 

errors. Any amount inadverlently or incorrectly paid to MERCHA~ff may be debited from 

any account of MERCHANT, at the sole discretion of BANK and. in any event, remains an 

obligation of MERCHAr~T lo BAr~K payable in full and on demand. 

5 Warranties by MERCHANT. MERCHANT warrants that it shall fully comply 

with all federal, stale, and local laws, rules, and regulations, as amended from lime to lime, 

including, but not limited to, the Federal Truth--in-Lending Act and Regulation Z of the Board 

of Governors of the Federal Reserve System. 

As to each bank card sale presented to BANK for payment, MERCHANT warrants that: 

(a) MERCHANT has delivered MERCHANT's merchandise lo the cardholder signing such sales slip or completed MERCHANT's service described on the slip or delivered 

such other value in accordance with MERCHANT's underlying agreement with the cardholder; 

(b) Unless expressly authorized in writing by BANK and as permitted by Visa, 

MasterCard and American Express rules and regulations, MERCHANT has not and shall 

not make any cash advances to cardholder, either directly or by deposit to the cardholder's 

account; 

(c) Neither MERCHANT nor any owner, director, o!ficer, member, partner or 

employee o! MERCHANT ("Affiliates") has advanced any cash lo cardholder or any person 

in connection with the purported bank card sale; 

(d) MERCHANT warrants that it shall not, without the cardholder's consent, sell, 

purchase, provide, or exchange bank card account number information m the !orm of 

imprinted sales slips, mailing lists. tapes. or any other media obtained by reason of a 

bank card transaction or otherwise to any third party other than lo MERCHANT's agents for 

!he purpose ol assisting !he MERCHA~ff in its busmess, to BANK, to Visa, to MasterCard, 

lo American Express, to Discover, or to PayPal, or PIN DebiliEBT Networks. or pursuant to 

a valid subpoena: 

(e) MERCHANT warrants !ha! ii will not submit any transactions that are not in 

compliance with both this 1\greement and any applicable law, rule, or regulation and hereby 

indemnifies and holds BA~JK harmless against any loss or damage BAr~K may su!fer as a 

result ol a breach of !his or any other warranty or agreement by MERCHANT; 

(f) MERCHANT understands that transactions completed al one location may not 

be processed at another location; 

(g) MERCHANT warrants it has not participated in assisting cardholder in entenng 

PIN into the PIN entry device MEFlCHANT also warrants that no photographic. video surveillance, or other recording device is being used which would compromise any cardholder 

PIN or confidential information: 

(h) MERCHANT warrants it has not and will not reverse engineer any software of 

First American found or used in connection with the operation of the POS equipment 

(i) MERCHANT shall not, under any circumstances, present to BA~lK a sale which 

has been split into multiple bank card transac1ions; (j) If an authorization number is 

required or requested, MERCHANT warrants it shall use only the authorization number 

obtamed through the Voice Aulhonzation ~letwork phone number provided by BANK. 

MERCH1\NT shall not use any number given by the cardholder or any type of number which 

has been obtained from any other source. 

U) MERCHANT is responsible for its employees' actions while in its employ. 

(k) MERCHANT will not sell, purchase, provide, exchange or in any manner disclose Card account number, transaction, or personal information of or about a Cardholder 

lo anyone other than BANK, or in response to a valid governmenl demand. This warranty 

applies to Card imprints, TIDs, ca1bon copies, mailing lists, tapes, database files, and all 

other media created or obtained as a result of a Transaction. 

6. Business Changes. MERCHANT shall provide at least thirty (30) days written 

notice to BANK for any of the following anticipated changes: MERCHANT's business type, 

including any change in goods or services sold, name, entity type, or address, change 

o! Sales Prollle as described in the Merchant Application & Agreement, any ownership 

change, or transfer or sale of substantially all of the assets of MERCHANT At all times 

MERCHANT shall provide BAt~K with its current mailing address. BANK shall have the 

right to charge a fee o! no less than twenty dollars ($20.00) for returned mail items. If 

BANK receives a returned mail item with no forwarding address, BANK may exercise its 

right to suspend mailing MERCHA~ff's monthly statements until such time as the correct 

address has been provided by MERCHANT. MERCHA~ff shall not change its usual trade 

or business, move its trade or business to a new location, utilize the merchant account to 

process e-commerce transactions or commence operating an unrelated trade or business 

on the same premises where MERCHANT operates this slated lrade or business without 

obtaining B1\NK's prior written consent lo the change, move, or addition. MEFlCH1\NT also 

agrees that prior lo any changes, BANK must first accept the change and confirm such 

acceptance 1r1 writing. MERCHA~ff acknowledges !ha! codes ol pro!essional responsibility 

Page 1 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003526 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 8 of 12 PageID #: 31 
Merchant Credit Card Processing Terms & Conditions, continued 

and rules and regulations of professional associations if applicable to MERCHAf'.ff. may 

also apply lo the transactions covered by this Agreement. MERCHANT may, however, bring 

any inconsistency between this Agreement and such codes and rules to the attention of 

BANK and request a modification to this Agreement to eliminate such inconsistency. BAf'.JK 

may, in its discretion, agree to such modification to the extent ii is consistent with BAf'.lK 

policy and in conformity with then existing Visa, MasterCard. American Express, Discover, 

PayPal and PIN Debit/EBT Networks rules, regulations and applicable laws. Until BAt~K 

agrees to such modification in writing, the terms o! this Agreement shall remain in place. 

MERCHAf'.ff shall be responsible !or any administrative charges ol BANK associated 

with any change requested by the MERCHANT 

7. Chargebacks. MERCHANT expressly acknowledges and agrees to any charge 

or debit made by BANK against any of MERCHANT's accounts as a result of the exercise of chargeback or retrieval rights by a cardholder, issuing bank, processor, or other 

intermediary pursuant to applicable operalmg regulations ol Visa, MasterCard, American 

Express, Discover, PayPal, PIN Debit/EST Networks or other card brands/organizations 

as the same may be in effect from time to lime. MERCHANT also understands and 

acknowledges that BANK may debit or reduce MERCHANT's bank account regardless 

of whether the cardholder has returned merchandise. MERCHANT understands that 

BANK will assess MERCHAf'.ff a fee as well as administrative costs as determined by 

BANK for each chargeback. MERCHANT, whether consented to or no! by cardholder. 

shall not present to 81\NK for processing any sales slip representing a transaction which 

has been previously charged back to BANK and returned lo MERCHAf'.JT. MERCHANT's 

obligations and BANK's rights under this paragraph shall survive the lerrrnnation of this 

Agreement. rv1ERCHANT shall not bill or collect from any card holder for any transaction for 

which the cardholder paid with a bank card unless the cardholder exercised a chargeback, 

the MERCHANT has !ully paid for such chargeback, and the MERCHAf'.ff otherNise has 

the right to do so Without prior notice, 81\NK shall have the right, at any lime, to reduce 

MERCHANT's bank card transaction proceeds received from issuing banks. debit any of 

MERCHANT's accounts and/ or demand immediate payment lrom MERCHANT through 

ACH or otherv,ise for any bank card transaction v,hich is disputed, questioned or returned 

lo BANK by the financial institution or company which has issued the bank card (the "Card 

Issuer") and to chargeback such lransacl1on to MERCHANT in any situation, including but 

not limited to, the following situations: 

(a) Where goods originally purchased have been returned to MERCHAf'.ff by cardholder and cardholder requested a credit slip and such credit slip was not processed by 

MERCHANT; 

(b) Where the transaction had no! been authorized as required; 

(c) Where sales slip covers goods or services other than those described in the 

Merchant Application & Agreement; 

(d) Where a cardholder contends to the Card Issuer that: (i) goods or services 

were not received by cardholder or by authorized user: or (ii) goods or services received by 

cardholder or by authorized user do not conform lo what was described on the sales slip; 

or (iii) goods or services were de!ecl1ve or of unsatis!aclory quality; 

(e) Where original sales slip is not received by BANK from MERCHANT when 

requested by BANK in accordance with this Agreement: 

(f) ViJhere sales slip does not contain a transac.,i1on date or the face of such sales 

slip shows that such date or dollar amount has been altered or incorrectly entered; 

(g) Where the sales slip delivered lo BANK contains the imprint or description of a 

bank card other than !he bank card processed: 

(h) Where the transaction was generated through the use of an expired bank card; 

(i) 'Where the signature on the sales slip is different from the signature appearing 

on the signature panel of the card or where no signature appears on the signature panel of 

the card: 

(j) Where a Card Issuer or BANK has information that impropriety or fraud 

occurred at the time o! transaction, whether or not such transaction was properly authorized 

by the Card Issuer or the cardholder participated in or authorized the transaction, or where 

the Card Issuer represents that there is no bank card outstanding with the account number 

used: 

(k) BANK reasonably determines that the transaction record is improper, fraudulent. not a bona fide transaction in MERCHANT's ordinary course of business or is subject 

lo any claim o! illegality, cancellation, rescission, avoidance, or o!lsel for any reason what-­

soever, including without limitation, negligence, fraud, impropriety, or dishonesty on the part 

of card user, cardholder. MERCHAf'.ff or Affiliates: 

(I) In any situation where the sales slip was executed or credit given to MERCHANT 

in circumstances constituting a breach of any representation or warranty of MERCHANT 

hereunder. or MERCHANT's violation of Visa, MasterCard, American Express, Discover, 

PayPal, or PIN Debit/EST f'.letworks rules and regulations which has resulted in a transac-­

tion being charged back by the Card Issuer; 

(m) As required by bank card brand/organization rules or regulations as they currenlly exist or as they may be amended lrom lime to time: 

(n) In such other circumstances where BANK determines or suspects in its sole discretion that the transaction may result in a chargeback for any reason, whether or not enumerated under this paragraph and whether or not the transaction results in a chargeback; 

or 

(o) If with respect lo any of MERCHAr~T's outlets. the ratio of bank card counte1ieit 

and !raud volume to bank card transaction volume or the ratio of !he number ol bank card 

chargebacks to the number of bank card transactions exceeds 1 % or credits processed 

exceed ten percent (10%) for any given month. In such event, without limiting other rights 

hereunder, BANK in its sole and absolute discretion may charge back all bank card sales 

for all locations. 

8 Improper Transactions; Forward Commitments. BANK may hold funds, suspend processing. terminate this Agreement with or without notice, or require MERCHANT 

lo process a rdund upon any determination by BANK, in its sole discretion, of improper. 

fraudulent, suspicious or questionable transactions, including, but not limited lo, any transTerms and Conditions -V2 

actions for items or services with a future delivery date or fo1ward commitment. transactions 

that !ail to meet the requirements of this Agreement or which vary from the in!ormalion 

represented or disclosed in the Merchant Profile Section of the Merchant 1\pplicalion & 

Agreement. BANK may also at its sole discretion block, reject. or deny any transaction 

for any reason. MERCHANT acknowledges and agrees that BANK shall have no obligation to make any payment to rv1ERCHANT with respec1 lo such transaction(s) unless and 

until MERCHAf'.JT provides lo BANK the documentation sufficient for BAr~K to determine 

that the transacl1on(s) 1s verified, legitimate, and BAf'.lK's risk has been mitigated. BAf'.lK 

reserves the right, al its sole discretion. to adjust or amend the Merchant Profile Section of 

the Merchant Application & Agreement with or without notice to MERCHANT. MERCHANT 

acknowledges no discount or transaction lees will be refunded as a result ol BANK withholding payment to MERCHMff. including but not limited to reversals, returns and/or 

credits. 

9. Fraudulent Sales/Factoring. MERCHANT shall not present to BANK directly 

or indirectly, any transaction (1) no! originated as a resull o! an act directly between cardholder and MERCHMff. (ii) that MERCHANT processes for any other person or business 

(iii) that results from a transaction outside MERCHANT's normal course of business as 

descnbed in the Merchant Application & Agreement, (iv) !hat MERCHANT knows or 

should have known lo be fraudulent. improper, illegal, or not authorized by the cardholder, 

or (v) that contains the account number of a bank card account issued to MERCHANT. 

Should MERCHANT do so, BANK may hold funds, suspend processing or terminate this 

Agreement with or without notice following the determination. al BANK's sole discretion, 

of improper, fraudulent. suspect, or other questionable transactions. including. but not 

limited to, transactions varying materially in character lrom the information represented 

or disclosed in the Merchant Profile Section of the Merchant Application & Agreement 

as approved by BAf'.JK MERCHANT acknowledges and agrees that BANK shall have no 

obligation to make any payment to MERCHANT with respect to such lransaction(s) unless 

and until MERCHANT provides to 81\NK the documentation sufficient for BANK to determine that the transaction is verified and legitimate, and BANK's risk has been mitigated. 

MERCHANT acknowledges no discount or transaction lees will be re!unded as a result of 

BANK withholding payment to MERCHMff, including but not limited to reversals, returns 

and/or credits. 

10. Exclusivity. MEFlCH1\NT agrees that it will not use the ser1ice of any corporation. entity or person other than BANK for the processing of bank card transactions. 

11. Term; Termination. The initial term of this Agreement shall commence upon 

BANK's acceptance hereof (as evidenced by BAt~K's performance hereunder) and continue in full force and effect !or !he term sel forth in the Acknowledgements section o! the 

Merchant Application & Agreement. Thereafter, the Agreement will automatically renew for 

additional one-year periods unless MERCHANT gives (and BANK receives) written notice 

of non-renewal, no less than thirty (30), bu! no more than ninety (90), days prior to the 

end of the applicable term. The written notice must contain MERCHANT's signature as it 

appears on the Merchant Application & Agreement in order to be accepted. Notwithstanding 

any other provision hereof, the Agreement may be terminated by BANK, with or without 

cause or reason, and with or without notice. Termination by BANK for any service may (al 

BANK's option) result in termination of all services. In the event MERCHANT submits bank 

card transactions to BAf'.lK after the date ol termination, the bank card transactions may 

(at BANK's option) be processed subject to the terms and conditions of this 1\greement. If 

this Agreement is terminated by MERCHANT prior to the end of the term or by BANK as 

a result o! MERCHANT's breach, BANK will be enl1tled lo recover and MERCHAf'.ff shall 

pay on demand, an early termination fee as set forth in the 1\cknowledgemenls section of 

the Merchant Application & Agreement* for each MERCHANT location. Termination of any 

ancillary service (i.e., Debi!, Check Services, etc.) is subject to an early lennination lee of 

$100 per service. Al Its sole and absolute discretion, BANK may also assess liquidated 

damages in connection with such termination. which shall be the average monthly fees paid 

by MERCHANT to BANK for !he last 12 months (or the number of months this Agreement 

has been in effect, if less than twelve months) times the number of months remaining in 

the term. plus any and all additional losses (including con- sequential damages, costs, 

expenses and other liabilities) incurred by BANK in connection with such termination. 

MERCHANT and BANK agree that: (a) the award of liquidated damages is to provide a 

means of compensation for BANK in the event of a breach by MERCHAf'.JT in the form of 

early cancellation or non-adherence to exclusivity requirement; (b) BANK's damages would 

be difficult or impossible to prove; and (c) the amount of liquidated damages set forth herein 

is a fair and reasonable estimate of BAN K's damages resulting from any breach or improper 

lernmration by MERCHAf'.ff. BANK may hold payment o! any monies due MERCHANT 

to ensure that all obligations of MERCHMff are satisfied. MEFlCHANT remains liable 

for any and all unpaid amounts due under this obligation or related lo this Agreement. 

'!ARKANSAS MERCHAf'.ffS - early termination fee 1s up to !ifty dollars ($50.00)]. 

12. Terminated Merchant File/MATCH/CMNF. MERCHANT may be placed on the 

Combined Terminated Merchant File, MATCH. or the Consortium Merchant Negative File 

upon violation of any terms of this Agreement or any bank card brand/organization rules or 

regulations. MERCHANT hereby releases, indemnities, and holds BANK harmless for any 

loss or damage it may incur as a result of 81\NK's actions hereunder or as a consequence 

of MERCHANT being placed by BANK or its agents on the Combined Terminated Merchant 

File, MATCH, CMf'.lF or other applicable list where such events are reported. 

13. Attorneys' Fees and Collection Costs. MERCHANT shall be liable for and 

sha!! mdernnify and reimburse BANK for any attorneys' fees, arbi1ration cost, and expenses 

incurred by BANK in the enforcement hereof, including but not limited lo collecting any 

amounts or obligations due from MERCHANT. BANK shall assess a collection fee of not 

less than two hundred dollars ($200.00) in the collections of any obligation or amounts due 

by MEFlCH1\l'ff 

14. Fee Disclosure. Discount Rate. "Discount Rate" shall mean a percentage of the total transactions submitted to BANK for processing The Visa, MasterCard, 

American Express. Discover and PayPal Discount Rate listed in the Merchant Application 

Page 2 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003527 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 9 of 12 PageID #: 32 
Merchant Credit Card Processing Terms & Conditions, continued 

& Agreement applies to "Qualified" transactions (American Express - 'Tier 1 ") only. If the 

version o! !he application signed by Merchanl lists a Credit Card Discounl Rate (for Visa, 

MasterCard, American Express, Discover and PayPal) the rate shall apply to Qualified 

Credit Card (American Express - "Tier ·1 ") transactions. If the Agreement lists a Check Card 

Discounl Rate 11 will apply solely lo Qualified Check Card lransactions. If the Agreement 

lists a Credit/Check Discount Flate the rate would apply to Qualified transactions for both 

Credit Cards and Check Cards. 

"Qualified" transactions are those in which an authorization was obtained electronically, 

the transaclIon was settled wilhin the appropriate time !rame, and the lransaclIon meets 

all other requirements imposed by the bank card brands or BANK. Other transactions are 

categorized as "Mid-Qualified" or 'Non-Qualified" transactions. Mid-Qualified transactions 

include but are not limited to those transactions where the card is af!1liated with a special 

issuer program or did not meet requirements imposed by the bank card brands or BANK 

Non-Qualified transactions include but are not limited to those transactions where the 

authonzalion was obtained by calling a voice or Voice Recogmlion Unit (VRU) authorizalion 

number. the card is affiliated with a special issuer program, the transaction was not settled 

in the appropriate time frame. or the transaction did not meet the requirements imposed by 

!he bank card brands or BAf'.lK. These "Mid-Ouali!ied" or 'Non-Quali!ied" transactions may 

be subject to increased fees and/or Discount Rate as determined by BANK 

"Debit Transaction Fee' shall mean a fee charged on each debit transac..iIon submilted for 

authorization, regardless of the total amount of the transaction. "EBT Transaction Fee·· shall 

mean a fee charged on each EBT transaction submitted for authorization, regardless of the 

lolal amount ol the lransactIon. "Debit Network Fee" shall be charged on each transaction 

submitted for authorization. regardless of the total amount of the transaction, at a rate set 

by the BANK or Debit/EST network. and shall be in addition to the Debit Transaction Fee. 

"Debi! Related Fee' shall mean a lee charged on each transaction submitted for authoriza-­

tion of no less than three cents ($0 03) per transaction for other debit related costs including, without limitation. debit sponsorship. audit, and network registration. 

Also, if you are a mail order telephone order or e-commerce MERCHANT, the bank 

card brands/organizations require additional data elements to be submitted as a part 

of the transaction record in order for the transactions to qualify !or the lowest possible 

discount rate. Failure lo submit the additional data elements or to meet all other requirements imposed by the bank card brands/organizations will result in the payment of a higher 

discount rate. 

BRAf'.lD RELATED FEES: 

Auth Processing Fee for VS Credit (AUTH PRC CR VS) (charged on every U.S issued 

card authorizal1on) 

Auth Processing Fee for VS DB (AUTH PRC DB VS) (charged on every U.S issued 

check card authorization) 

Aulh Processing Fee !or VS lnternal1onal Credit (AUTH PRC CR INTL VS) (charged on 

every international issued card authorization) 

Auth Processing Fee for VS International DB (AUTH PRC DB lt~TL VS) (charged on 

every inlernational issued check card authorizal1on) 

~fon-Settle Fee for VS (NON STL VS TRAN) (charged on approved authorizations not 

settled within 10 days of authorization) 

Transac..i1on lnlegrily Fee for VS (TIF FOR VS TRAN) (charged on credil, check card or 

prepaid card transactions that do not meet CPS qualifications) 

Zero Floor Limit for VS (t~O AUTH VS TRAN) (charged on settled transactions that cannot be matched to previously approved aulhonzations) 

Cross Border Fee for VS (XBRD FOR VS VOL) (charged on foreign settled transac1ions) 

International Assessment Fee for VS (lt~TL FOR VS VOL) (charged on foreign settled 

transactions) 

Fixed Acquirer Network Fees for VS (NTWK FEE FOFl VS) 

Base II System File Transmission Fee for VS (TRAf'.JSMISSION VS) (charged on every 

settled transaction) 

~Jetwork 1\cquirer Brand Usage Fee/ Safety ~Jet for MC (BRND USG FEE/SAFETY ~IET 

MC) (charged on every authorization) 

Processing Integrity Fee-Preauthorization (PREAUTH-MC) (charged per authorizalion 

not cleared or reversed within thirty calendar days for pre-authorizations) 

Processing Integrity Fee-Undefined Authorization (Uf'.JDEF AUTH-MC) (charged per 

authorization not cleared within seven calendar days !or undefined authonzalions) 

Processing Integrity Fee-Final Authorization (FNL. AUTH-MC) (charged per final authorization not cleared within seven calendar days and/or cleared within seven days but the clearing amount di!fers !rom !he authorization amount) 

Processing Integrity Fee-Final Authorization-Minimum (FNL 1\UTH MIN-MC) (charged 

per final authorization not cleared within seven calendar days and/or cleared within seven 

days but the clearing amount differs lrom !he authorization amount) 

Global Acquiring Program Fee for MC (AGO PRG MC VOL) (charged on foreign settled 

transactions) 

Cross Border Fee for MC (XBRD FOR MC VOL) (charged on !oreign settled transacl1ons) 

Network Fee for MC (NTWK FEE FOFl MC) 

Digital Enablement Fee for MC (DGT ENBL MC VOL) (charged on card not present 

lransactions) 

Merchant Location Fee for MC (MER LOG FEE-MC) (charged monthly) 

Excessive Authorization Attempts (EXCESSIVE AUTH ATTEMPTS-MC) (charged per 

authonzalion aller 20 previously issuer declined attempts on the same account number in 

a 24 hour period) 

Acquirer Interchange Compliance Downgrade Fee-MC (INT COMP DWNGRD-MC) 

(charged on each downgraded transaction) 

Acquirer Transaction Fee-Quantity based 3D Secure MasterCard Identity Check (3DS 

VOL FEE-MC) (charged on settled transactions that uses 3D Secure Identity Check) 

Acquirer Transacl1on Fee--Amount based 3D Secure MaslerCard Identity Check (3DS 

TRANS FEE-MC) (charged on every authorization that uses :JD Secure Identity Check) 

Data Usage for OS (DAT USG DS TRAf'.J) (charged on every settled transaction) 

Terms and Conditions -1/2 

International Processing Fee for OS (INTL PRC DS VOL) (charged on foreign settled 

transactions) 

International Service Fee for DS (INTI.. SRI/ DS VOL) (charged on foreign settled transactions) 

Inbound Fee for AX (INBOUND AX VOL) (charged on !oreign settled transactions) 

Data Quality Fee for /',X (DATA 01.T /',X VOL) (charged on settled transactions that do 

not meet data quality standards) 

f'.lon-Compliance Fee for AX (NON COMP AX VOL) (charged on seltled transactions that 

do not comply with technical specifications) 

Assessment fee for AX (ASSESSMENT FEE-AX) (charged on settled transactions) 

Non-Swiped Transac..i1on Fee !or AX (NOf'.lSWIPE AX VOL) (charged on non-swiped 

settled transactions) 

f'.Jon-swiped Application-initiated Transaction Fee (NOf'.JSWIPE APP lt~T AX VOL) 

(charged on digital wallet settled transactions) 

These fees further outlined above are passed along lo the merchant and may include an 

additional surcharge to cover bank sponsorship fees, bank reconciliation costs and other 

expenses associated with 1ransaction processing. 

OTHER FEES: "Transaction Fee' shall mean a lee charged on each transac..iIon 

(including each sales draft and each credit draft) regardless of the total amount of the 

transaction. "Authorization Fee" shall mean the fee charged on each transaction attempted 

whether approved or declined and whether or not the sale was actually charged. A "Batch 

Settlement Fee" will be charged on all batch settlements. '-Per Item Fee'' shall mean the fee 

charged on each specified settled transaction. A Monthly Minimum fee may be charged, 

and ii so, applies lo Visa and MasterCard lransactions only. An Annual Fee ol not less 

than ninety-five dollars ($95.00) per year shall be charged and will be collected via /',CH 

transfer within forty-five (45) days from the approval date of this Agreement and on the first 

business day o! !he anniversary month each year lherea!ter. An Access Fee for Discover 

(ACCESS FOR OS) will be charged on a monthly basis. An Address Verification Service 

Fee (AVS) will be charged on transactions for all Card Brands on which the AVS service 

is utilized. A "Monlhly Maintenance Fee" will be charged for general account maintenance 

and online statement preparation. A "Network Inquiry Fee" may be charged, at the same 

rate as the applicable authorization or transaction fee. for any non-card specific or non-card 

identifiable transmission to the host. A "Monthly Funding Fee" may be charged on settled 

volume for all Card Brands. 

Additional lees are charged for use o! Wireless terminals. These fees include "Wireless 

Transaction Surcharge,'' "Wireless Activation/Reactivation Fee." and ·'Wireless Monthly 

Access Fee', and are outlined in the Merchant Application & Agreement. if applicable. 

Wireless "Monlhly Access Fee' 1r1cludes 1 MB o! wireless dala per wireless SIM card. Data 

utilized in excess of the 1 MB allowance on an individual SIM card in a given month may be 

charged at the rate of $3.00 per MB. Limits on monthly maximum data may be set for individual SIMs at BANK's discretion. Usmg wireless service for application downloads could 

result in overage fees and/or SIM deactivation due to reaching the maximum data limit. 

A "Merchant Benefits Package Monthly Fee' may be charged if MERCHANT wishes to 

utilize this service The services included and associated fees are outlined in the Merchant 

Application & Agreement. if applicable. 

MERCHAr~TS who take advantage of the Next Day Funding Program may be charged a 

Rate and/or Fee as outlined in the Merchant Applical1on &. Agreement. 

COMPLIANCE RELATED FEES: MERCHANT agrees to comply with all security standards and guidelines that may be published from time to lime by any card brand or orga-­

nization, including, without limitation, the Payment Card lndust1y Data Security Standards 

("PCIDSS"), the Visa Cardholder Information Security Program ("CISP") the MasterCard 

Site Data Protection program ("SDP"), !he Discover/PayPal-Secunty Requiremenls and the 

American Express@ Data Security Operating Policy - United States ("DSOP") (collec1ively, 

the "Security Guidelines"). 

A 'Hegulatory Compliance Fee" will be charged in regards to application changes, 

merchant notifications and other requirements. the result of changes in rules regulations, 

or operating procedures, or any additional requiremenl imposed by any federal or state 

governmental agency or regulatory authority. A "PCI Fee" may be charged in association 

with a PCI DSS compliance program which BAf'.JK may make available to MERCHANT 

either directly or through a third party. BAf'.lK shall have !he right lo charge an annual PCI 

fee whether or not rv1ERCHANT participates in the program./', "Non-Compliance Fee" may 

be charged on a frequency to be determined by BANK for merchants who fail to provide 

certification of PCI compliance, fall to maintain an annual certificate o! compliance, or fail 

lo meet any additional requirements imposed by any federal or state governmental agency 

or regulatory authority. A "Breach Protection Fee" may be charged for coverage in the event 

of a data comprorrnse in connec..iIon wilh the Breach Protection Program. 

BREACH PROTECTION PROGRAM: The Breach Protection Program provided by 

BANK is administered by RGS Limited, LLC. and is funded by a policy purchased from 

the Voyager Indemnity Insurance Company. Additional information regarding the terms of 

the Breach Protection Program is available by going lo https://www.royalgroupservices. 

com/nadsrpg/. RGS Limited LL.C., Voyager Indemnity Insurance Company or BANK may 

modify or cancel the Breach Protection program at any time with or without notice. BAt~K 

does not warrant nor guarantee the terms and conditions of, or !he features o!, the Breach 

Protection Program. The Breach Protection Program does not eliminate the requirements 

for MERCHANT to become or remain PCI-DSS compliant as referenced in the PCI-DSS 

Compliance and Customer lnformal1on Securily section o! the Merchant Processing Terms 

& Conditions. To file a claim on the Breach Protection Program, please call the Claims 

Hotline at (844) 729-9199. 

~mN-RECURFllNG FEES: MERCHMff further understands that BANK will assess 

Non-Recurring Fees when applicable, as set forth in this paragraph. BANK will assess 

MERCHANT a lee as well as administral1ve costs as delermined by BANK for each 

chargeback through ACH, including but not limited lo the following: Retrieval Fee ($10 00 

per item), Chargeback Fee ($25 00 per item), and Return Draft Fee ($30.00 per item). 

Page '.l 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003528 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 10 of 12 PageID #: 33 
Merchant Credit Card Processing Terms & Conditions, continued 

Additionally. MERCHA~ff shall be responsible for other fees including a DDA/DBA Change 

Fee ($35.00 per item) and a Voice Authorization Fee ($0.95 per request). 

MERCHA~ff understands that Early Termination Fees may be charged, by service. 

as outlined in the Merchant Application & Agreement and Merchant Processing Terms & 

Conditions, if applicable. MERCHANT understands and agrees that BANK reserves the 

right to assess any associated lees not previously specified 1r1 !he "Fees Section" of the 

Merchant 1\pplication & Agreement that are billed to BANK as a result of the device(s) or 

software used by MERCHANT communicating with any third party host. 

POS REL/,TED FEES Equipment supplies provided shall consist of (i) replacement of 

printer receipt paper and (ii) replacement of receipt printer ribbons only. Supplies provided 

are intended !or use with BANK processing services only and BA~lK reserves the right to 

limit quantities based upon MERCHA~ff transaction histo1y. Not applicable to third party POS 

equipment. 

POS Terminal replacement services shall consist of replacement or repair, at BANK's 

option, o! MERCHANT's processing equipment (terminal, printer, pmpad or check reader.) 

BANK will perform this se1vice if (i) MERCHANT has honored and paid all amounts owed 

to BANK including, but not limited to, all amounts owed for Chargebacks and ACH rejects, 

(ii)the equipment has been verilied to be in working order with BA~lK (verification of this 

shall occur by rv1ERCHANT submitting a transac1ion lo BANK using the equipment that is 

being requested to be replaced). BANK. at its option, may use refurbished equipment for 

replacement and al BANK's sole discretion may substitute comparable equipment. BANK 

shall charge a shipping fee of not less than seven dollars and twenty-five cents ($7.25) plus 

applicable tax for each supply request. Additional fees will apply to orders above the standard quantities established by BANK. BANK shall charge a lee not less than seventy-five 

dollars ($75.00) for shipping and handling on equipment exchanges or swaps and a fee not 

less than one-hundred seventy-five dollars ($175.00) for all premium equipment. including 

but not limited to, all wireless equipment and select check imagers. MERCHA~ff is required 

lo return all defective equipment replaced by BANK lo BANK. BANK may assess a restocking fee of not less than fifty dollars ($50 .00) on all returned equipment. If equipment is 

not returned, BANK, al its sole discretion, may assess a fee of not less than live-hundred 

dollars ($500.00) for each piece of equipment not returned and a fee of not less than ninehundred fifty dollars ($950.00) for each piece of premium equipment not returned, including 

but no! limited lo, all wireless equipment and select check imagers. BA~lK reserves the 

right to assess a fee, to be determined by B1\NK, for equipment upgrades when compatible equipment is not available or when MERCHANT's existing equipment is obsolete or no 

longer supported by BANK. 

POS Terminals may be made available for use by MERCHANT free of charge ("complimentary equipment"). at BANK's option. MERCHANT is required to return all complimentary equipment at the termination of the processing agreement with BA~JK. Failure to 

return the complimentary equipment may result in BANK assessing a lee o! not less than 

five-hundred dollars ($500.00) for each piece of equipment not returned and a fee of not 

less than nine-hundred fifty dollars ($950.00) for each piece of premium equipment not 

returned, including bu! not lirrnted to wireless equipment and check imagers. 

In the event MERCHANT accepts a rate or fee reduction on any rate or fee set forth 

herein, the Term of !his Agreement shall automatically be extended for an additional two (2) 

year term from the date of the then-current contract end date 

BA~lK shall have the nght to adJust charges as necessary to o!fset any direct or indirec.,i 

cost to BANK associated with providing services hereunder including. but not limited to, 

costs associated with collection and administration of chargebacks, fees charged by Visa, 

MasterCard, American Express, Discover, or PayPal, fees charged by other providers in 

processing, increases in the cost of living index or changes in rules. regulations, or operating procedures of Visa, MasterCard. American Express. Discover and PayPal or other applicable bank card brand/organization, charges !or changes to merchant accounts or information, adjustments in foreign exchange rates, or any additional requirement imposed by any 

federal or state governmental agency or regulatory authority, or due to any increases in 

communication costs charged to BANK by common carriers. Such charges shall, without 

prior notice, become e!fective as of the dale of change. Upon any request from MERCHANT 

for copies of file information, account research, or other information. BA~JK may charge fees 

for such services, 1r1cluding per hour fees as determined by BA~lK. Without limiting the 

foregoing, BANK shall have the absolute and unconditional right to introduce new fees and 

increase Discount Rates, Transaction Fees, Authorization Fees, Per Item Fees, Statement 

Fees, Access Fees, Monthly Minimums, DF&A, Debit Transaction Fees, EBT Transac.,iion 

Fees, Debit ~lelwork Fees and any other fees for any reason when deemed appropriate in 

BANK's sole discretion. Said changes may be communicated by statement message and a 

summary lhereo! will be available thirty days pnor to the implementation at www.lirslv1ew.ne!. 

ACCOUNT UPDATER is a service provided by the vanous Card Brands and is facilrtated by BANK 

on your beha~. Merchant understands and agrees that activation of Ac.count Updater may be delayed 

due lo registration with the Card Brands. BA~lK does not guarantee !he accuracy of data or !he results 

of data used by Merchant. Merchant shall be responsible for all fees associated with Account Updater 

and shall !ollow the rules and guidelines set !orth by the Card Brands relating to Account Updater. 

Merchant agrees and warrants the following: 

(a) To abide by all CAFlD BRAND RULES applicable to BANK's Account Updater product. 

MERCHANT acknowledges that BANK Is the acquirer o! record for processing transactions 

through Account Updater: 

(b) To request a BANK Account Updater update !or every participating VISA account in 

MERCH1\NT's customer database at least once every 1 BO calendar days; 

(c) ·ro submrt inquiries only for those accounts with which the MERCHANT has an ongoing 

customer relationship: 

(d) To update its customer account database wrthin live (5) business days ol rece1VIng update 

from BANK; 

Terms and Conditions -V2 

(e) To ensure that information rece~;ed from BANK is properly, completely, and accurately 

incorporated into MERCHANTs customer database for use in future transactions; 

(!) To correct erroneous account inlbrmation within five (5) business days of receipt of eIrnr 

notification from BANK. Visa, or MasterCard; 

(g) Notto request authorization on accounts that have returned a response of "Closed Account"; 

(h) Not to submrt inquiries to BANK on behaW of any other enti~{. 

DEBIT SURCHARGE: MERCHA~ff must not impose a surcharge on any Debit/EBT 

transaction MERCH1\NT will be liable for all fines. fees or damages that may be assessed 

to First American by the Debit/EBT networks or any other brand or network as a result of 

any such surcharging by MERCHANT. 

Debit/EST network fees may be billed on a pass-through basis. 

ADDITION1\L SERVICES: MERCHArff should also review the Merchant Application & 

Agreement and Merchant Processing Terms & Conditions for fees charged for additional 

services utilized by MERCHA~ff, including but not limited to Debit, SecurChex, FirstPay.net. 

1stPayMobile, 1stPayPOS Pro and FIRSTADVANTAGE Gift/Loyalty. These fees as well as 

the Credit service related fees outlined above are listed at www.merchantnotification.com 

under the FEE DISCLOSURE tab. 

15. Variances. If in MERCHANT's processing there is a variance from the information. amounts or percentages included, represented, or disclosed by MERCHANT in the 

Merchant Profile Section of the Merchant Application & Agreement as approved by B1\NK 

or if BA~JK determines that such variance may otherwise be detrimental to BANK, then 

BANK shall have no obligation to pay MERCHANT any settlement funds until MERCHANT 

has provided to B1\NK documentation sufficient for BA~IK to determine that the variance is 

verified and legitimate, and BAr~K's risk has been mitigated. MERCHA~ff further acknowledges that BANK, at its sole discretion, may hold or delay settlement of funds, suspend 

MERCHANT's processing, terminate this Agreement, or require MEFlCH1\NT lo run a 

return/credit on a transaction with or without notice upon the occurrence of any of the 

events specil1ed above. MERCHA~ff shall immediately notify BANK in writing ii vanances 

occur from the information, amounts or percentages included, represented, or disclosed 

by MERCHA~ff in the Merchant Profile Section of the Merchant Application & Agreement 

as approved by BANK. For purposes hereof, BA~lK's determination shall be binding upon 

MERCHANT MERCHANT hereby releases, indemnifies and holds BANK harmless for 

any losses or damage it may incur as a result of BANK's actions hereunder, or as a consequence o! the settlement !unds being held, delayed or suspended. MERCHANT also 

agrees to pay all fees associated v,ith processing any transaction, regardless if funds are 

held, delayed. suspended or if MERCHA~ff is required to run a return/credit. 

16. MERCHANT Reserve Account. BANK may require the MEFlCH1\NT or any 

guarantor to establish a reserve account against current and future indebtedness. or for 

any transaction which might become subject to a chargeback for any reason. Any reserve 

will be held by BANK for a period of time as is consistent with BANK's liability (up to 120 

days from the date scheduled for last delivery of goods or services to cardholder, not to 

exceed 540 days from the processmg date). BA~lK, in its sole and absolute discretion, may 

estimate the amount of the potential losses, fees, and costs and require MERCHANT or 

any guarantor to establish a reserve account for the full amount of the estimate. Payment of 

!he reserve estimate shall be immediate. Failure to !und the reserve may result in immediate termination of the Agreement. MERCHANT also understands and agrees that BA~IK 

may withhold and retain any and all settlement funds in order to establish a Merchant 

Reserve Account without notice to MERCHA~ff. MERCHANT understands and agrees that 

all reserve funds may be retained and used to o!fset: 1) any loss which was created prior 

to establishing the reserve account 2) any current fees or losses due from time to time to 

BANK, hereunder and 3) any transaction which might result in a loss at a !uture date as 

determined by BANK. Reserves shall be held and placed in a non-segregated, non-interest 

bearing account in BA~JK's name and MERCHANT will have no right of access to said 

account. Further the Reserve Account shall not be deemed property of MERCHANT dunng 

the period of time the funds are held by BANK. 

This Agreement will constitute a security agreement under the Uniform Commercial 

Code. MERCHAr~T grants to BANK a security interest in and lien upon all of the following 

(collectively, !he "Secured Assets"): (i) all !unds at any time in the designated account, (ii) 

the reserve account, (iii) future transactions, (iv) all funds. deposits, deposit accounts, moneys. securities, and other propeIiy now or hereafter in the possession of or on deposit with, 

or in transit lo BANK or any other direct or mdirect subsidiary or af!illate of BANK, whether 

held in a general or special account or deposit, whether held jointly with someone else, or 

whether held for safekeeping or otherwise, excluding. however. all IRA, Keogh, and trust 

accounts; and (v) all of MERCHANT's rights relalmg lo this Agreement including, without 

limitation. all rights to receive any payments or credits under this Agreement. MERCHANT 

warrants and represents that no other person or entity has a security interest in the Secured 

Assets. These secunty interests and liens will secure all o! MERCHANT's obligations under 

this 1\greement and any other agreements between MEFlCHANT and BANK, including 

but not limited to MERCHA~ff's obligation to pay any amounts due to BANK. With respect 

lo such security interests and liens, BANK will have all rights af!orded under the Uniform 

Commercial Code, any other applicable law and in equity and the right to perfect such 

security interests as required by the Uniform Commercial Code. In addition to the security 

interests in the Secured Assets, BANK shall have, a contractual right o! selolf against the 

Secured Assets without notice lo MERCHANT 

17. Arbitration. Any dispute, controversy, or claim arising out o! or relating to 

this Agreement. including any breach hereof, shall be resolved exclusively by arbitration 

in Fort Worth, Texas, pursuant to the Federal Arbitration Act and administered by the 

American Arb1tral1on Assoc1al1on under its Commercial Arbitration Rules, and Judgment 

on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction 

18. Waiver. The parties and any guarantor expressly waive the nght and agree not 

to bring or participate in any class or collective action (or other representative action) or 

Page 4 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003529 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 11 of 12 PageID #: 34 
Merchant Credit Card Processing Terms & Conditions, continued 

any joinder or consolidation of claims with respec1 to any dispute arising out of or relating to 

this Agreement. ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE TRIAL BY JURY 

IN ANY ACTION, PROCEEDlf'lG, SUIT, CLAIM, COUf'ffERCLAIM OR THIRD PARTY 

CLAIM BROUGHT BY THE PARTIES HERETO ON MN MATTER AFllSl~m OUT OF OR 

OTHERWISE RELATED TO OR COf'Jr~ECTED WITH THIS AGREEMENT. 

19. Taxes. MEFlCHANT shall pay and be responsible for all sales. use, value 

added, and other taxes and duties, of whatever nature levied or imposed as a result of this 

Agreement or in connection with any services hereunder. 

20. Indemnification. MERCHANT hereby releases, indemnities and holds BANK 

harm- less for any losses, claims, costs or damages to MERCHANT or any third party as a 

result of BAt~K's acts or omissions under this Agreement. including. as a consequence of 

BANK's own negligence. The indemnification provisions herein shall survive the 1errnination 

of this Agreement 

21. Governing law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the Stale of Texas applicable to agreements 

made and lo be performed entirely within such state without regard lo the conflicts of law 

prmciples of such stale. The parties hereby agree that venue o! any action under this agreement shall be exclusively in the state district courts located in Fort Worth, Tarrant County. 

Texas. 

to: 

22. Notices. If to BANK, all written notices under this Agreement shall be delivered 

Merchant Services 

100 Throckmorton Street, Suite 1800 

Fort \North, TX 76102 

If to MERCHANT, the proper notice shall be the address stated on the records of BANK. 

Notice lo MERCHAf'ff may be by letter, facsimile and/or the MERCHANTs monthly statement. 

If such transmitted notice is by MERCHANT to BANK, the original of any communication 

shall also be mailed to BANK on !he date of the transmission and it shall no! be deemed 

served until the mailed copy is received and confirmed by B1\NK. 

Any notice of termination of this Agreement must be in writing and must contain 

MERCHAt~T's signature, as it appears on the Merchant Application & Agreement. 

23. Entire Agreement Changes. This 1\greement, along with the additional terms 

and conditions located al www.MerchantNotification.com and any applicable supplements 

con1ains the entire agreement between the parties and may not be altered, amended, modified, terminated or otherwise changed except in writing and signed by BANK 

Ir any term, provision, covenant or condition o! this Agreement is determined by any local, 

stale or federal court or law enforcement agency to be invalid, illegal. void or unenforceable 

in any jurisdiction, then such provision, covenant or condition shall, as lo such jurisdiction, 

be modified or restncted lo the extent necessary lo make such provision valid, binding and 

enforceable, or, if such provision cannot be modified or restricted, then such provision shall 

as to such jurisdiction. be deemed lo be excised from this Agreement and any such invalidity, illegality or unenforceability with respect to such provision shall no! invalidate or render 

unenforceable such provision in any other jurisdiction. and the remainder of the provisions 

hereof shall remain in full force and effect and shall in no way be affected, impaired or 

invalidated. 

Additional American Express Card Acceptance Requirements 

High CV Merchant. In the event MERCHANT's American Express annual charge volume exceeds $1,000,000 in a rolling twelve month period or is greater than $100,000 in 

any three consecutive months, MERCHANT will be considered a High CV Merchant by American Express and will be required to enter into a direct merchant card acceptance 

agreement with American Express. Upon any conversion to a direct agreement with American Express, MERCHANT will be bound by American Express' then current Card 

Acceptance Agreement and to any pricing and fees set by American Express. 

Marketing and Communications. Upon agreement by MERCHANT to accept American Express transactions, MERCHANT consents to receive commercial marketing 

communications from American Express. After account setup, MERCHANT may contact BANK directly and request to opt-out of future marketing communications from 

American Express. This will not preclude MERCHANT from acceptance of important transactional or relationship communications from American Express. After a request to 

opt-out is received, MERCHANT may continue to receive marketing communications while BA~•K and American Express updates its records to reflect MERCHANT's request. 

Merchant shall not assign to any third party any payments due to it under this Agreement, and all indebtedness arising from charges will be for bona fide sales of goods and 

services (or both) or charitable contributions at its establishments free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant 

may sell and assign future transaction receivables to BANK, its affiliated entities and/or any other cash advance funding source that partners with BANK or its affiliated entities, without consent of American Express. 

Rights and Obligations. MERCHANT agrees that American Express shall have third-party beneficiary rights to enforce this Agreement, but shall hold no obligations to 

the MERCHNff 

*Please visit www.americanexpress.com/merchantopguide for a full copy of the American Express Merchant Operating Guide. 

Next Day Funding Terms & Conditions 

The following Terms & Conditions apply only if MERCHANT has been accepted into the Next Day Funding Program 

~•EXT DAY FUNDING is available for Visa®, MasterCard®, American Express®, Discover®1 and PayPalTM card transactions and PIN based debit transactions only. Next Day 

Funding is subject to BANK approval and subject to all provisions of the Merchant Processing Terms & Conditions. Qualifying funds are deposited on the next business clay, 

excluding weekends and bank holidays. 

Upon execution of this agreement and acceptance into the Next Day Funding Program, MERCHANT acknowledges and agrees to the Next Day Funding Rate or Monthly Fee, 

effective the first day of the month of acceptance. MERCHANT further acknowledges that the Next Day Funding Rate or Monthly Fee are fees to participate in the Next Day 

Funding Program and not a guarantee that all transactions processed will qualify for Next Day Funding. 

In order to enable Next Day Funding, MERCHANT must assist in the download/reprogram of the terminal/software application. Failure to do so will result in processed 

transactions settling under standard funding gu1delmes and funds will not be eligible lor Next Day Funding. 

MERCHANT must Batch transactions out at least five minutes prior to the designated cut-off time ("Cut-Off Time"). All Cut-Off Times are Central Standard Time. It is 

MERCHNff's sole responsibility to batch MERCHANT's terminal by the designated Cut-Off Time. Transactions batched after Cut-Off Time will be treated as batched on the 

following business clay. Next Day Funding of Merchants may be impacted by circumstances beyond BA~•K's control, such as disruptions in network processing or processing 

delays by a Umd party intermediary. BANK reserves the right to adjust or change Cut-Off Time at its sole discretion. For additional detail regarding Next Day Funding, please 

go to. wvvw.merchantnotification.com. 

MERCHA~ff agrees and understands that MERCHANT is not guaranteed to be accepted into this program. Even if accepted into this program, MERCHANT may be removed 

from this program at any time at the sole discretion of BANK. 

1 Merchants who have a direct relationship with Discove1® (Discove1® Retained) or American Express® are excluded from Next Day Funding 

Terms and Conditions -V2 Page 5 

CONFIDENTIAL CID-TPF & CID-FAPS & CID-CPP FAP _0003530 

Case 4:22-cv-00654 Document 1-1 Filed 07/29/22 Page 12 of 12 PageID #: 35