Boost Card Processing Agreement Standard Terms and Conditions

 

EFFECTIVE DATE: AUGUST 1, 2024

 

1. Boost Services.

As provided on web application page.

2. Payment Network Rules; Legal Compliance.

In consideration of Supplier’s participation in programs affiliated with payment networks (“Payment Networks”) including Mastercard Worldwide (“Mastercard”), Visa Inc. (“Visa”), and/or American Express International, Inc. (“Amex”), Supplier is required to unconditionally comply with the operating rules and regulations of each applicable Payment Network, which are incorporated into this Agreement by reference, including, as applicable, the MasterCard Rules, which are available at https://www.mastercard.us/en-us/business/overview/support/rules.html, the Visa Rules, which are available at https://usa.visa.com/support/consumer/visa-rules.html, and the Amex Rules, which are available at https://www.americanexpress.com/merchantopguide, and applicable industry standards such as PCI DSS and NACHA operating rules and guidelines (collectively, “Rules”). In the event of any conflict between this Agreement and the Rules, the Rules will control. The Payment Networks shall have the right to fully enforce the terms of this Agreement against Supplier. Supplier further agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”), including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC), the USA Patriot Act (or similar law, rule or regulation), and the Federal Trade Act. Supplier represents and warrants that neither it nor any of its principals or beneficial owners (a) appear on the OFAC Specially Designated Nationals List; or (b) have previously been terminated for cause by a payment processor or have been placed on a Terminated Merchant File or the Mastercard Member Alert to Control High Risk Merchants (MATCH) list.

 

3. Settlement.

Where the Services include services relating to settlement funding, Boost is authorized to withhold and set off from amounts otherwise due to Supplier any amounts owed to Boost under this Agreement. Supplier shall be responsible for all chargebacks, fees, and all costs or adjustments associated with the transactions submitted by Boost for processing on Supplier’s behalf and/or settled directly to Supplier’s depository account, and Boost shall have the absolute right to hold and/or debit Supplier’s settlement funds or settlement account in the aggregate amount of each chargeback plus associated fees, costs and adjustments. Boost may also freeze or hold funds if Boost reasonably determines that there are inconsistent instructions regarding settlement or claims on the funds within the settlement account, and may otherwise act to prevent or reduce loss or risk to Boost. Subject to the foregoing, unless other arrangements have been agreed to between Boost and Supplier, funds due Supplier will be settled to the Account and deposited net of the card processing fees at the time of transaction. If Supplier believes that any fees or other amounts charged by Boost are in error, Supplier must dispute such charges in writing within 30 days after receiving notice of the transaction. If Boost determines in its sole discretion that an adjustment is warranted, it will initiate such adjustment. All charges will be deemed accepted by Supplier if not disputed in writing within such 30-day period, and Supplier’s failure to dispute any charge within such period will constitute a full waiver of any claim related thereto.

4. Data Security; Confidentiality.

Supplier will accept cards and protect utilize, or restrict transaction data, including the magnetic stripe and CVV2 in accordance with the terms of this Agreement, applicable Law and Rules (including without limitation PCI DSS). In addition to complying with each Payment Network’s obligations or prohibitions related to acceptance, disbursement, or resubmission of a transaction, Supplier will not submit any transaction: (a) that is illegal, fraudulent, or unauthorized, (b) that does not represent a payment between the Supplier and its customer for Supplier’s own goods and services, or (c) on behalf of another person or company. Supplier is responsible for its employees’ actions. Supplier will immediately report all Data Incidents to Boost. Supplier further agrees to promptly cooperate with any audit requested by a Payment Network. “Data Incident” means any alleged or actual compromise, unauthorized access, disclosure, fraud, theft, or unauthorized use of bank account information, a payment card, cardholder information or merchant credentials, regardless of cause, including without limitation instructions from a third party to deposit funds into a bank account not owned by Supplier, a breach, infiltration or hack of or intrusion into any system, or failure, malfunction, inadequacy, or error affecting any server, wherever located, or hardware or software of any system, through which merchant credentials or card or cardholder information resides, passes through, or could have been compromised. Supplier shall not disclose any confidential or proprietary information belonging to Boost or others to any third party without Boost’s written consent, and shall not use any such information except as expressly authorized by Boost.

5. Indemnification.

Supplier will indemnify, defend, and hold harmless Boost, the Acquirer, and their directors, officers, employees, affiliates, and agents from and against all proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, resulting from or arising out of: (a) a third party claim against Boost related to the Services; (b) inaccurate, incomplete, inaccessible, tardy, fraudulent, or unauthorized payment instructions or other data delivered by Supplier, its customer (“Buyer”), or a third party to Boost for the processing of transactions; (c) any sales transaction acquired by Boost or the Acquirer; (d) Supplier’s negligence, willful misconduct, breach of this Agreement or any noncompliance by Supplier, a Buyer, or their agents with Laws or Rules; (e) Supplier’s goods and services, or any issue, problems, or disputes between Supplier and a Buyer; or (f) a Data Incident of which Boost is not the direct and sole cause. The indemnification set forth above will survive the termination of the Agreement. Supplier will keep Boost fully informed of any defense and obtain Boost’s written consent prior to agreeing to any settlement or agreement that requires Boost to make any admission of fault or to pay any amounts in connection with such settlement or agreement that are not fully paid for by Supplier. Boost may elect to participate in the action with an attorney of its own choice.

6. Disclaimer; Limitations on Liability.

BOOST DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BOOST WILL BEAR NO RISK WITH RESPECT TO ANY GOODS OR SERVICES OF SUPPLIER, INCLUDING WITHOUT LIMITATION ANY RISK ASSOCIATED WITH CHARGEBACKS OR ANY CLAIMS BY A BUYER OR ANY FRAUD BY A BUYER OR ANY OTHER PERSON. IN NO EVENT WILL BOOST BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE OR FOR ANY REASON WHATSOEVER, REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THAT POSSIBILITY. THE TOTAL LIABILITY OF BOOST UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS WILL NOT EXCEED IN THE AGGREGATE THE FEES PAID TO BOOST IN THE THREE (3) MONTHS PRECEDING THE DATE LIABILITY FIRST ACCRUED. Boost will not be liable for any failure or delay in performance if such failure or delay arises out of causes beyond its reasonable control. This paragraph will survive termination of this Agreement.

7. Term and Termination.

The term of this Agreement shall be for three years from the date hereof and shall automatically renew for consecutive twelve month periods unless earlier terminated pursuant to this Agreement. Boost may terminate this Agreement at any time to reduce Boost’s actual or potential risk of loss or if Boost is required to do so by the Acquirer, a governmental entity, or a Payment Network. Without limiting the foregoing, Boost may immediately terminate this Agreement without notice, if Boost believes, in its sole discretion, that: (a) Supplier has failed to pay any amount owed to Boost when due; (b) Supplier has violated, or is likely to violate, any Rules or Laws; (c) Supplier poses a financial or regulatory risk to Boost, the Acquirer, or a Payment Network; (d) Boost’s agreement with the Acquirer terminates, or either Boost or the Acquirer becomes deregistered with the Payment Networks or fails to have the required licenses. Nothing in this Agreement will be deemed to interfere with or lessen the right of the Acquirer or the Payment Networks to terminate Supplier’s ability to process cards at any time. Obligations arising prior to termination of this Agreement, provisions regarding each party’s liability, and other provisions which by their nature are intended to survive, will survive termination of this Agreement.

8. Amendments.

Boost is authorized to amend this Agreement or any pricing schedule with written notice to Supplier. Boost will use reasonable efforts to give Supplier 30 days’ prior notice of any material amendment. If Supplier does not agree to the amendment it may terminate this Agreement without penalty within 30 days of Boost’s notice of the amendment. Continued use of the Services after the amendment will constitute Supplier’s acceptance of and agreement to the amendment. Notwithstanding the foregoing, notice to Supplier will not be required for any amendment: (a) which Boost determines is required to comply with Laws or Rules; (b) as directed by the Acquirer or the Payment Networks from time to time; or (c) to pass through increases or decreases in third party costs and fees.

9. General.

This Agreement, including the application and associated schedules, represents the entire agreement between the parties with respect to its subject matter. No waiver of any breach of this Agreement will be effective unless in writing, signed by the waiving party. Supplier may not assign or delegate any of its rights or obligations under this Agreement, either directly or by operation of law, without the prior written consent of Boost and any unauthorized attempted assignment or delegation will be void. If any provision of this Agreement is deemed by a court of competent jurisdiction illegal or unenforceable, its invalidity will not affect the other provisions of this Agreement. This Agreement is governed by and construed pursuant to the laws of the State of New York without regard to conflicts of law provisions. Each party agrees that all judicial proceedings will be brought exclusively in the federal or state courts of New York County, New York. BOOST AND SUPPLIER WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER RELATED TO OR ARISING OUT OF THIS AGREEMENT. ALL PARTIES TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT MUST BE INDIVIDUALLY NAMED; THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE LITIGATED ON A CLASS ACTION, JOINT, OR CONSOLIDATED BASIS.