Esquire Bank Merchant Services Terms of Service

This AMERICAN EXPRESS OPTBLUE® CARD ACCEPTANCE AGREEMENT (the “OptBlue Agreement”) is made a part of the terms and conditions of the Merchant Card Processing Agreement and the Application for processing services that MERCHANT signed. MERCHANT also agrees to comply with the American Express Merchant Operating Guide, which governs MERCHANT’s participation in the OptBlue Program (the current version of the Merchant Operating Guide can be found at www.americanexpress.com/merchantopguide) (the “Rules”).The OptBlue Agreement describes additional requirements that MERCHANT is to follow for acceptance of American Express.

1. MERCHANT INFORMATION
   MERCHANT agrees that PaymentVision and/or OptBlue Acquirer may disclose to AMERICAN EXPRESS information regarding MERCHANT and MERCHANT’s SALES to AMERICAN EXPRESS, and that AMERICAN EXPRESS may use such information to perform its responsibilities in connection with AMERICAN EXPRESS CARD ACCEPTANCE, promote AMERICAN EXPRESS, perform analytics and create reports, and for any other lawful business purposes, including commercial marketing communications purposes within the parameters of AMERICAN EXPRESS CARD ACCEPTANCE, and important transactional or relationship communications from AMERICAN EXPRESS.
2. COMMUNICATION
   AMERICAN EXPRESS may use the information about MERCHANT obtained pursuant to the OptBlue Agreement at the time of setup to screen and/or monitor MERCHANT in connection with AMERICAN EXPRESS marketing and administrative purposes. MERCHANT agrees it may receive messages from AMERICAN EXPRESS, including important information about AMERICAN EXPRESS products, services, and resources available to its business. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers of MERCHANT. MERCHANT may be contacted at its wireless telephone number and the communications sent may include autodialed short message service (SMS or “text”) messages or automated or prerecorded calls. MERCHANT agrees that it may be sent fax communications.
   
   MERCHANT may opt-out of receiving future commercial marketing communications from AMERICAN EXPRESS by contacting PaymentVision. Note that MERCHANT may continue to receive marketing communications while AMERICAN EXPRESS updates its records to reflect this choice. Opting out of commercial marketing communications will not preclude MERCHANT from receiving important transactional or relationship messages from AMERICAN EXPRESS.
3. MERCHANT RELATIONSHIP
   MERCHANT acknowledges that it may be converted from AMERICAN EXPRESS CARD ACCEPTANCE to a direct relationship with AMERICAN EXPRESS if and when its SALES volumes exceed the eligibility thresholds for AMERICAN EXPRESS CARD ACCEPTANCE. If this occurs, upon such conversion, (i) MERCHANT will be bound by AMERICAN EXPRESS’ then-current Card Acceptance Agreement; and (ii) AMERICAN EXPRESS will set pricing and other fees payable by MERCHANT.
4. OPERATING RULES
   MERCHANT shall not assign to any third party any payments due to it under AMERICAN EXPRESS CARD ACCEPTANCE, and all indebtedness arising from SALES will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that the MERCHANT may sell and assign future SALES receivables to PaymentVision, its affiliated entities and/or any other cash advance funding source that partners with PaymentVision, or its affiliated entities, without consent of AMERICAN EXPRESS. Notwithstanding the foregoing, PaymentVision prohibit MERCHANT from selling or assigning future SALES receivables to any third party.
5. REFUND POLICY; CHARGEBACKS
   Except as may otherwise be required or permitted by the American Express Merchant Operating Guide, or except as required applicable law, MERCHANT’S refund policies for AMERICAN EXPRESS SALES must be at least as favorable as its refund policy for purchase on any other CARD BRAND, and the refund policy must be disclosed to cardholders at the time of purchase and in compliance with LAWS. MERCHANT may not bill or attempt to collect from any cardholder for any AMERICAN EXPRESS SALE unless a CHARGEBACK has been exercised, MERCHANT has fully paid for such CHARGEBACK, and it otherwise has the right to do so.
6. OPT-OUT; TERMINATION
   Notwithstanding anything in the OptBlue Agreement to the contrary, AMERICAN EXPRESS shall have third-party beneficiary rights, but not obligations, to the terms of the OptBlue Agreement applicable to AMERICAN EXPRESS CARD ACCEPTANCE to enforce such terms against MERCHANT.
   
   MERCHANT may opt out of accepting AMERICAN EXPRESS at any time without directly or indirectly affecting its rights to accept other CARD BRANDS.
   
   PaymentVision shall have the right to terminate MERCHANT’S participation in AMERICAN EXPRESS CARD ACCEPTANCE immediately upon written, electronic, or oral notice to MERCHANT (i) if MERCHANT breaches any of the provisions of this OptBlue Agreement, the Rules, or any other terms of the Merchant Card Processing Agreement applicable to AMERICAN EXPRESS CARD ACCEPTANCE, or (ii) for cause or fraudulent or other activity, or upon AMERICAN EXPRESS’ request. In the event MERCHANT’s participation in AMERICAN EXPRESS CARD ACCEPTANCE is terminated for any reason, MERCHANT must immediately remove all AMERICAN EXPRESS branding and marks from MERCHANT’s website and wherever else they are displayed.

American Express Right to Modify or Terminate Agreement. American Express has the right to modify the agreement with respect to American Express Card transactions or to terminate Merchant’s acceptance of American Express Card transactions and to require PaymentVision to investigate Merchant’s activities with respect to American Express Card transactions.

MERCHANT must accept AMERICAN EXPRESS as payment for goods and services (other than those goods and services prohibited by this OPTBLUE AGREEMENT, the Merchant Card Processing AGREEMENT, or the RULES) sold, or (if applicable) for charitable contributions made at all of its business locations and websites, except as expressly permitted by state statute. MERCHANT is jointly and severally liable for the obligations of MERCHANT’s business locations and websites under the AGREEMENT.

In the event that MERCHANT or PaymentVision is not able to resolve a Claim against AMERICAN EXPRESS, or a Claim against PaymentVision or any other entity that AMERICAN EXPRESS has a right to join in resolving a Claim, the Rules explain how Claims can be resolved through arbitration. MERCHANT or AMERICAN EXPRESS may elect to resolve any Claim by individual, binding arbitration. Claims are decided by a neutral arbitrator.

Any and all cardholder information is confidential and the sole property of the applicable issuer, AMERICAN EXPRESS or its affiliates. Except as otherwise specified, MERCHANT must not disclose cardholder information, nor use nor store it, other than to facilitate SALES at MERCHANT’s business locations and websites in accordance with the AGREEMENT.

MERCHANT must ensure that it and any third parties it enlists to facilitate SALES processing complies with the American Express Technical Specifications (available at www.americanexpress.com/merchantopguide) (valid and accurate data must be provided for all data elements in accordance with the American Express Technical Specifications). Failure to comply with the American Express Technical Specifications may impact Merchant’s ability to successfully process SALES. MERCHANT may be assessed non-compliance fees if MERCHANT fails to comply with the Technical Specifications. To ensure compliance with the Technical Specifications, MERCHANT should work with PaymentVision.

A copy of the American Express Data Security Requirements (“DSR”) can be obtained online at www.americanexpress.com/dsr . Merchant shall abide by and fully comply with the Rules, DSS, CISP, SDP, DSR, and any other Merchant shall abide by and fully comply with the requirements in the Rules, such as PCI, SDP and CISP.