Merchant Services Agreement
Last Updated: August 6, 2021
This Merchant Services Agreement for Merchants (this “Merchant Agreement”) is made among WORLDPAY, LLC, having its principal office at 8500 Governors Hill Drive, Symmes Township, OH 45249-1384 and its designated Member Bank (collectively “Acquirer”) and Merchant in connection with the agreement between Merchant and Anedot (“Provider”). Acquirer will provide Merchant with certain payment processing services (“Services”) in accordance with the terms of this Merchant Agreement. In consideration of Merchant’s receipt of credit or debit card funded payments, and participation in programs affiliated with MasterCard International Inc. ("MasterCard"), VISA U.S.A. Inc. ("VISA"), Discover (“Discover”), and certain similar entities (collectively, “Associations”), Merchant is required to comply with the Operating Regulations (defined below) as they pertain to applicable credit and debit card payments. In addition, if Merchant meets certain requirements under the Operating Regulations or an Association or the Operating Regulations otherwise require, Merchant may be required to enter into a direct relationship with an entity that is a member of the Associations. By executing this Merchant Agreement, Merchant has fulfilled such requirement. However, Acquirer understands that Merchant may have contracted with Provider to obtain certain processing services and that Provider may have agreed to be responsible to Merchant for all or part of Merchant’s obligations contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
A. Merchant Responsibilities
Merchant agrees to comply, and to cause third parties acting as Merchant’s agent (“Agents”) to comply, with the Association’s and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively "Operating Regulations"). Merchant may review the VISA, MasterCard, and Discover websites for a copy of the Visa, MasterCard and Discover regulations. The websites are:
Merchant also agrees to comply with all applicable state, federal, and local laws, rules, and regulations (“Laws”). Without limiting the foregoing, Merchant agrees that it will fully comply with any and all anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act, the US Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission. For purposes of this section, Agents include, but are not limited to, Merchant’s software providers and/or equipment providers.
B. Limited Acceptance Merchants
If appropriately indicated in Merchant’s agreement with Anedot, Merchant may be a limited-acceptance merchant, which means that Merchant has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. Acquirer has no obligation other than those expressly provided under the Operating Regulations and applicable law as they may relate to limited acceptance. Merchant, and not Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale.
Merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Merchant to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Merchant, or for any purposes related to any illegal or prohibited activity, including but not limited to money- laundering or financing of terrorist activities.
Merchant may set a minimum transaction amount to accept a card that provides access to a credit account, under the following conditions: i) the minimum transaction amount does not differentiate between card issuers; ii) the minimum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand; and iii) the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Merchant may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: Merchant is a i) department, agency or instrumentality of the U.S. government; ii) corporation owned or controlled by the U.S. government; or iii) Merchant whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 –Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.
Unless otherwise agreed to in writing between Anedot and Merchant, Anedot does not charge fees on a variable rate or in connection with any discount. Anedot charges the pricing as set forth in https://anedot.com/pricing
as a flat rate.
D. Merchant Prohibitions
A Merchant using Services must not:
i) require a cardholder to complete a postcard or similar device that includes the cardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed,
ii) add any tax to transactions, unless applicable law expressly requires that a Merchant impose a tax (any tax amount, if allowed, must be included in the transaction amount and not collected separately),
iii) request or use an account number for any purpose other than as payment for its goods or services,
iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Merchant,
v) disburse funds in the form of cash unless Merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Merchant), or Merchant is participating in a cash back service,
vi) submit any transaction receipt for a transaction that was previously charged back to the Acquirer and subsequently returned to Merchant, irrespective of cardholder approval,
vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or refinance an existing debt,
viii) accept a card to collect or refinance an existing debt that has been deemed uncollectable, or
ix) submit a transaction that represents collection of a dishonored check. Merchant further agrees that, under no circumstance, will Merchant store cardholder data in violation of the Laws or the Operating Regulations including but not limited to the storage of track-2 data. Neither Merchant nor its Agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales transaction.
Upon receipt of Merchant’s sales data for card transactions, Acquirer will process Merchant’s sales data to facilitate the funds transfer between the various Associations and Merchant. After Acquirer receives credit for such sales data, subject to the terms set forth herein, Acquirer will fund Merchant, either directly to the Merchant-Owned Designated Account or through Anedot to an account designated by Anedot (“Anedot Designated Account”), at Acquirer’s discretion, for such card transactions. Merchant agrees that the deposit of funds to the Provider Designated Account shall discharge Acquirer of its settlement obligation to Merchant, and that any dispute regarding the receipt or amount of settlement shall be between Provider and Merchant. Acquirer will debit the Provider Designated Account for funds owed to Acquirer as a result of Services provided hereunder, provided that Acquirer may also debit Merchant’s designated demand deposit account (“Merchant-Owned Designated Account”) upon receipt of such account information from Merchant or Provider, or if Acquirer deposits settlement funds into the Merchant-Owned Designated Account. Further, if a cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirer reasonably believes a transaction is unauthorized or otherwise unacceptable, the amount of such transaction may be charged back and debited from Merchant or Provider.
F. Term and Termination
This Merchant Agreement shall be binding upon Merchant upon Merchant’s approval. The term of this Merchant Agreement shall begin, and the terms of the Merchant Agreement shall be deemed accepted and binding upon Acquirer, on the date Acquirer accepts this Merchant Agreement by issuing a merchant identification number, and shall be coterminous with Provider’s agreement with Merchant.
Notwithstanding the foregoing, Acquirer may immediately cease providing Services and/or terminate this Merchant Agreement without notice if (i) Merchant or Provider fails to pay any amount to Acquirer when due, (ii) in Acquirer's opinion, provision of a service to Merchant or Provider may be a violation of the Operating Regulations or any Laws, (iii) Acquirer believes that Merchant has violated or is likely to violate the Operating Regulations or the Laws, (iv) Acquire determines Merchant poses a financial or regulatory risk to Acquirer or an Association, (v) Acquirer’s agreement with Provider terminates, (vi) any Association deregisters Provider, (vii) Acquirer ceases to be a member of the Associations or fails to have the required licenses, or (viii) Acquirer is required to do so by any of the Associations.
G. Limits of Liability
Merchant agrees to provide Acquirer, via a communication with Provider, with written notice of any alleged breach by Acquirer of this Merchant Agreement, which notice will specifically detail such alleged breach, within thirty (30) days of the date on which the alleged breach first occurred. Failure to so provide notice shall be deemed an acceptance by Merchant and a waiver of any and all rights to dispute such breach.
EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS MERCHANT AGREEMENT, ACQUIRER DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Merchant’s sole and exclusive remedy for any and all claims against Acquirer arising out of or in any way related to the transactions contemplated herein shall be termination of this Merchant Agreement. In the event that Merchant has any claim arising in connection with the Services, rights, and/or obligations defined in this Merchant Agreement, Merchant shall proceed against Provider and not against Acquirer, unless otherwise specifically set forth in the Operating Regulations. In no event shall Acquirer have any liability to Merchant with respect to this Merchant Agreement or the Services. Merchant acknowledges Acquirer is only providing this Merchant Agreement to assist in Provider’s processing relationship with Merchant, that Acquirer is not liable for any action or failure to act by Provider, and that Acquirer shall have no liability whatsoever in connection with any products or services provided to Merchant by Provider. If Provider is unable to provide its services to Merchant in connection with this Merchant Agreement and Acquirer elects to provide those services directly, Merchant acknowledges and agrees that the provisions of this Merchant Agreement will no longer apply and the terms of Acquirer’s then current Bank Card Merchant Agreement, which would be provided to Merchant, will govern Acquirer’s relationship with Merchant. If Provider subsequently provides its services to Merchant in connection with this Merchant Agreement, Acquirer will cease to provide such services after receipt of notice from Provider and this Merchant Agreement will govern Acquirer’s relationship with Merchant.
This Merchant Agreement is entered into, governed by, and construed pursuant to the laws of the State of Ohio without regard to conflicts of law provisions. This Merchant Agreement may not be assigned by Merchant without the prior written consent of Acquirer. This Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assignees. This Merchant Agreement is for the benefit of, and may be enforced only by, Acquirer and Merchant and is not for the benefit of, and may not be enforced by, any other party. Acquirer may amend this Merchant Agreement upon notice to Merchant in accordance with Acquirer’s standard operating procedure. If any provision of this Merchant Agreement is determined to be illegal or invalid, such illegality or invalidity of that provision will not affect any of the remaining provisions and this Merchant Agreement will be construed as if such provision is not contained in the Merchant Agreement “Member Bank” as used in this Merchant Agreement shall mean a member of VISA, MasterCard and/or Discover, as applicable, that provides sponsorship services in connection with this Merchant Agreement. As of the commencement of this Merchant Agreement, Member Bank shall be Fifth Third Bank, an Ohio Banking Corporation, located in Cincinnati, OH 45263. The Member Bank is a party to this Merchant Agreement. The Member Bank may be changed, and its rights and obligations assigned to another party by Acquirer at any time without notice to Merchant.
I. Acceptance of American Express
In the event Merchant accepts American Express, the following terms shall apply: Capitalized terms in this Section I are defined in the American Express Program General Merchant Requirements attached as Exhibit A to the Terms.
(i) Merchant hereby authorizes Provider to submit transactions to, and receive settlement from, American Express on behalf of Merchant. If Merchant is placed in the American Express Program, Merchant shall be responsible for complying with the provisions set forth in Exhibit A to the Terms and with American Express’ Merchant Requirements (located at https://www.americanexpress.com/merchantopguide
(ii) Acquirer may disclose Transaction data, Merchant data, and other information about Merchant to American Express, and American Express may use such information to perform its responsibilities in connection with the program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purposes, including marketing purposes within the parameters of this Merchant Agreement. American Express may use the information from this Merchant Agreement at the time of setup to screen and/or monitor Merchant in connection with card marketing and administrative purposes.
(iii) In the event that Merchant’s estimated annual American Express charge volume becomes $1,000,000 USD or greater, Merchant may, at the discretion of Provider and American Express, become a direct card-accepting merchant under the standard American Express acceptance program and cease to be a sponsored Merchant under the Acquirer. As a direct card-accepting merchant, Merchant will be bound by the then-current American Express card acceptance agreement, and American Express’s discount and other fees and assessments shall apply.
(iv) Merchant shall not assign to any third party any payments due to it under the Merchant Agreement or the Terms, and all indebtedness arising from charges will be for bona fide sales of goods and services (or both) at its establishments and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future Transaction receivables to Acquirer, its affiliated entities and/or any other cash advance funding source that partners with Acquirer or its affiliated entities, without consent of American Express.
(v) Merchant warrants that it does not hold third party beneficiary rights to any agreements between Provider and American Express and at no time will attempt to enforce any such agreements against American Express.
(vi) Merchant confers on American Express the beneficiary rights, but not obligations, to the Terms and subsequent addendums between Merchant and Anedot and, as such, American Express has the express right to enforce the Terms against the Merchant.
(vii) Merchant may elect to opt out of accepting American Express cards at any time without directly or indirectly affecting its rights to accept other payment products by notifying Acquirer.
(viii) Provider may terminate Merchant’s right to accept American Express cards if it breaches any of the provisions in this Section I or in Exhibit A.
(ix) Acquirer has the right to immediately terminate a Merchant from the American Express Program for cause, fraudulent or other activity, or upon American Express’ request.
(x) Merchant may not bill or collect from any American Express cardholder for any purchase or payment on the card unless chargeback has been exercised, Merchant has fully paid for such charge, and it otherwise has the right to do so.
(xi) Upon termination of the Terms or termination of Merchant’s participation in the program, Merchant must remove any and all American Express licensed marks from Merchant’s website and wherever else the American Express marks are displayed.
Exhibit A - AMERICAN EXPRESS PROGRAM GENERAL MERCHANT REQUIREMENTS
This Exhibit A applies only if Merchant accepts American Express cards. If there is a conflict between any of the following sections and any other section of the Terms as they apply to American Express cards, the following sections will govern. All references to “cards” in this Exhibit A shall refer to American Express cards unless expressly stated otherwise.
A. Card Acceptance
Merchant must accept the card as payment for goods and services sold (other than those goods and services under prohibited uses), or (if applicable) for charitable contributions made, at all of its establishments, except as expressly permitted by applicable law. Merchant is jointly and severally liable for the obligations of Merchant’s establishments under the Agreement.
B. Treatment of the American Express Brand
Except as expressly permitted by applicable law, Merchant must not:
(i) indicate or imply that it prefers, directly or indirectly, any other payment products over the card,
(ii) try to dissuade card members from using the card,
(iii) criticize or mischaracterize the card or any of American Express’ services or programs,
(iv) try to persuade or prompt card members to use any other payment products or any other method of payment (e.g., payment by check),
(v) impose any restrictions, conditions, disadvantages or fees when the card is accepted that are not imposed equally on all other payment products, except for electronic funds transfer, or cash and check,
(vi) suggest or require card members to waive their right to dispute any Transaction,
(vii) engage in activities that harm the American Express business or the American Express brand (or both),
(viii) promote any other payment products (except Merchant’s own private label card that Merchant issues for use solely at Merchant’s establishments) more actively than Merchant promotes the card, or
(ix) convert the currency of the original sale Transaction to another currency when requesting authorization or submitting Transactions (or both).
Merchant may offer discounts or in-kind incentives from Merchant’s regular prices for payments in cash, ACH funds transfer, check, debit card or credit/charge card, provided that (to the extent required by applicable law): (i) Merchant clearly and conspicuously disclose the terms of the discount or in-kind incentive to Merchant’s customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective customers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth above in this Section B, “Treatment of the American Express Brand”.
C. Treatment of the American Express Marks
Whenever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate Merchant’s acceptance of the card and display American Express’ marks (including any card application forms provided to Merchant) as prominently and in the same manner as any other payment products.
American Express’ corporate logo, the “American Express® Blue Box” logo, is the strongest visual symbol of American Express’ image. The “Blue Box” represents and reinforces the high quality service and values of American Express. The appropriate version of the “Blue Box” logo must be displayed on all point-of-purchase materials and signs. The following guidelines apply to Merchant’s use of the “Blue Box” logo in communications:
• Maintain at least 1/3 “X” (where “X” is equal to the height of the Blue Box logo) between the logo and any accompanying element;
• The “Blue Box” logo minimum size is 3/8” and 1/2" is the preferred size; and
• The “Blue Box” logo must always be shown in the pre-approved “American Express blue” or, in one- or two- color communications, black.
Merchant must not use the American Express marks in any way that injures or diminishes the goodwill associated with the American Express mark, nor in any way (without American Express’ prior written consent) indicate that American Express endorse Merchant’s goods or services. Merchant shall only use the American Express marks as permitted by the Agreement and shall cease using our marks upon termination of the Agreement.
D. Treatment of Card Member Information
Any and all card member information is confidential and the sole property of the issuer, American Express or its affiliates. Except as otherwise specified, Merchant must not disclose card member information, nor use nor store it, other than to facilitate Transactions at Merchant’s establishments in accordance with the Agreement.
E. American Express Liability
MERCHANT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS BE LIABLE TO MERCHANT FOR ANY DAMAGES, LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT
F. Arbitration Agreement (as to Claims involving American Express)
In the event that Merchant or Anedot is not able to resolve a Claim against American Express, or a claim against Anedot or any other entity that American Express has a right to join, this section explains how Claims may be resolved through arbitration. Merchant or American Express may elect to resolve any Claim by binding individual arbitration. Claims will be decided by a neutral arbitrator.
If arbitration is elected by any party, neither Merchant nor Anedot nor American Express will have the right to litigate or have a jury trial on that Claim in court or have a jury trial on that Claim. Further, Merchant, Anedot, and American Express will not have the right to participate in a representative capacity or as a member of any class pertaining or be a named party to a class-action with respect to any Claim for which any party elects arbitration. Arbitration procedures are generally simpler than the rules in court, and discovery is more limited. The arbitrator’s decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator’s decision will be final and binding. Other rights Merchant, Anedot, or American Express would have in court may also not be available in arbitration.
i. Initiation of Arbitration
Claims may be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration Agreement and the selected organization’s rules in effect when the Claim is filed, except where those rules conflict with this Agreement. Contact JAMS or AAA to begin an arbitration or for other information. Claims may be referred to another arbitration organization if all parties agree in writing, or to an arbitrator appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA). Any arbitration hearing that Merchant attends shall take place in New York unless all parties agree to an alternate venue.
ii. Limitations on Arbitration
If any party elects to resolve a Claim by arbitration, that Claim will be arbitrated on an individual basis. There will be no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other merchants or service providers, or other persons or entities similarly situated. The arbitrator’s authority is limited to Claims between Merchant, Anedot, and American Express. Claims may not be joined or consolidated unless all parties to this Agreement agree otherwise. An arbitration award and any judgment confirming it will apply only to the specific case brought by Merchant, Anedot or American Express and cannot be used in any other case except to enforce the award as between Merchant, Anedot and American Express. This prohibition is intended to, and does, preclude Merchant from participating in any action by any trade association or other organization against American Express. Notwithstanding any other provision in this Agreement, if any portion of these Limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
iii. Previously Filed Claims/No Waiver
Merchant, Anedot, or American Express may elect to arbitrate any Claim that has been filed in court at any time before trial has begun or final judgment has been entered on the Claim. Merchant, Anedot, or American Express may choose to delay enforcing or to not exercise rights under this arbitration provision, including the right to elect to arbitrate a Claim, without waiving the right to exercise or enforce those rights on any other occasion. For the avoidance of any confusion, and not to limit its scope, this section applies to any class-action lawsuit relating to the “Honor All Cards,” “non-discrimination,” or “no steering” provisions of the American Express Merchant Regulations, or any similar provisions of any prior American Express card acceptance agreement, that was filed against American Express prior to the effective date of the Agreement.
iv. Arbitrator’s Authority
The arbitrator will have the power and authority to award any relief that would have been available in court, including equitable relief (e.g., injunction, specific performance) and cumulative with all other remedies, shall grant specific performance whenever possible. The arbitrator shall have no power or authority to alter the Agreement or any of its separate provisions, including this section, nor to determine any matter or make any award except as provide in this section.
v. Split Proceedings for Equitable Relief
Merchant, Anedot, or American Express may seek equitable relief in aid of arbitration prior to arbitration on the merits to preserve the status quo pending completion of the arbitration. This section shall be enforced by any court of competent jurisdiction, and the party seeking enforcement is entitled to seek an award of reasonable attorneys’ fees and costs, including legal fees, to be paid by the party against whom enforcement is ordered.
vi. Small Claims Court
American Express will not elect to use arbitration under this section for any Claim Merchant properly files in a small claims court so long as the Claim seeks individual relief only and is pending only in that court.
vii. Governing Law/Arbitration Procedures/Entry of Judgment
This Arbitration Agreement is made pursuant to a transaction involving interstate commerce and is governed by the FAA. The arbitrator shall apply New York law and applicable statutes of limitations and honor claims of privilege recognized by law. The arbitrator shall apply the rules of the arbitration organization selected, as applicable to matters relating to evidence and discovery, not federal or any state rules of civil procedure or rules of evidence, provided that any party may ask the arbitrator to expand the scope of discovery by doing so in writing and copying any other parties, who shall have fifteen (15) days to make objections, and the arbitrator shall notify the parties of his/her decision within twenty (20) days of any objecting party’s submission. If a Claim is for $10,000 or less, Merchant or American Express may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the rules of the selected arbitration organization. At the timely request of a party, the arbitrator will provide a written and reasoned opinion explaining his/her award. The arbitrator’s decision shall be final and binding, except for any rights of appeal provided by the FAA. If a Claim is for $100,000 or more, or includes a request for injunctive relief, (a) any party to this Agreement shall be entitled to reasonable document and deposition discovery, including (x) reasonable discovery of electronically stored information, as approved by the arbitrator, who shall consider, inter alia, whether the discovery sought from one party is proportional to the discovery received by another party, and (y) no less than five depositions per party; and (b) within sixty (60) days of the initial award, either party can file a notice of appeal to a three-arbitrator panel administered by the selected arbitration organization, which shall reconsider de novo any aspect requested of that award and whose decision shall be final and binding. If more than sixty (60) days after the written arbitration decision is issued, the losing party fails to satisfy or comply with an award or file a notice of appeal, if applicable, the prevailing party shall have the right to seek judicial confirmation of the award in any state or federal court where Merchant’s headquarters or Merchant’s assets are located.
The arbitration proceeding and all testimony, filings, documents, and any information relating to or presented during the proceedings shall be deemed to be confidential information not to be disclosed to any other party. All offers, promises, conduct and statements, whether written or oral, made in the course of the Claim resolution process, including but not limited to any related negotiations, mediations, arbitration, and proceedings to confirm arbitration awards by either party, its agents, employees, experts or attorneys, or by mediator or arbitrator, including any arbitration award or judgment related thereto, are confidential and inadmissible for any purpose, including impeachment or estoppel, in any other litigation or proceeding involving any of the parties or non-parties; provided that evidence that is not otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation, mediation, or arbitration.
ix. Costs of Arbitration Proceedings
Merchant will be responsible for paying Merchant’s share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees Merchant would have incurred if Merchant had brought a Claim in court. American Express will be responsible for any additional arbitration fees. At Merchant’s written request, American Express will consider in good faith making a temporary advance of Merchant’s share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
x. Additional Arbitration Awards
If the arbitrator rules in Merchant’s favor against American Express for an amount greater than any final settlement offer American Express made before any arbitration award, the arbitrator’s award will include: (1) any money to which Merchant is entitled as determined by the arbitrator, but in no case less than $5,000; and (2) any reasonable attorneys’ fees, costs and expert and other witness fees incurred by Merchant.
For purposes of this section only, (i) “American Express” includes any of its affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables, and all agents, directors, and representatives of any of the foregoing, (ii) “Merchant” includes Merchant’s affiliates, licensees, predecessors, successors, or assigns, any purchasers of any receivables and all agents, directors, and representatives of any of the foregoing, and (iii) “Claim” means any allegation of an entitlement to relief, whether damages, injunctive or any other form of relief, against American Express or against Anedot or any other entity that American Express has the right to join in resolving a Claim, including, a transaction using an American Express product or network or regarding an American Express policy or procedure.
E. American Express Liability
If a Merchant closes any of its establishments, Merchant must follow these guidelines:
(i) Follow your payment processing company’s guidelines for notification of establishment closing.
(ii) Policies must be conveyed to the card member prior to completion of the charge and printed on the copy of a receipt or charge record the card member signs. See the Terms, Section 4.9 for additional information.
(iii) If not providing refunds or exchanges, post notices indicating that all sales are final (e.g., at the front doors, by the cash registers, on the charge record and on websites and catalogs).
(iv) Return and cancellation policies must be clearly disclosed at the time of sale.
(v) For advance payment charges or delayed delivery charges, you must either deliver the goods or services which you have already charged the card member or issue credit for any portion of the charge for which you have not delivered the goods or services.