RealPage Card Processing Terms and Conditions
These Terms and Conditions together with the Application, Schedule A Interchange Fee Pricing Sheet, and any other documents referred to in Section 17G form the legal agreement between you (“Merchant”), RealPage, Inc. (“RealPage”) and Wells Fargo Bank, NA, and where applicable, Wells Fargo Merchant Services, L.L.C. (collectively, “Wells Fargo”) for processing your Payment Card Transactions. This agreement forms the Card Processing Terms and Conditions (“Card T&Cs”) to the agreement for provision of Payments Services entered into between you and RealPage (“Master Agreement”). These Card T&Cs can be viewed at www.realpage.com/payments/wells-fargo-iso/. Merchant is the “Merchant” under the Master Agreement. RealPage has agreed to process your Payment Card Transactions as well as pay you the amount of each Payment Card Transaction subject to the terms of these Card T&Cs. Wells Fargo enters into this agreement with you only with respect to the Services performed under, and the terms and conditions of, these Card T&Cs. Merchant agrees to pay RealPage for the Services performed and Merchant and RealPage each agree to comply with the Payment Brand Rules, Security Standards, operating procedures and all Applicable Laws, as further described in these Card T&Cs. The Payments Service Terms and Conditions apply to these Card T&Cs EXCEPT Sections related to ACH Services, Exception Items, Authorizations, Rejection of Entries and Confirmation Letter. Merchant, RealPage and Wells Fargo are each a “Party” and may be collectively referred to as the “Parties.”
- Merchant’s Acceptance of Payment Cards.
During the term of these Card T&Cs, Merchant will use exclusively RealPage for the Services; and submit all Transaction Data to RealPage in compliance with all specified formats and procedures; provided however, notwithstanding any terms to the contrary in these Card T&Cs, Merchant may elect to utilize a credit card payment channel offered by third parties that may be supported by the RealPage Payments platform, so long as Merchant does not utilize such credit card payment channel at any Site through the RealPage Payments platform. For avoidance of doubt, where Merchant elects to utilize any third party credit card payment channel that is supported by the RealPage Payments platform, and processes Transactions for any Sites utilizing the RealPage Payments platform, the exclusivity set forth in this provision shall apply, and Merchant shall process all Transactions for all Sites that utilize such third party payment channel through the RealPage Payments platform.
- Payment Card Acceptance Policies and Prohibitions.
Merchant will notify RealPage, on its Application or otherwise in writing, of all of Merchant’s Payment Card acceptance methods (e.g. card present, card-not-present, recurring transactions, etc.); accept all categories of Visa and MasterCard Payment Cards, unless Merchant has notified RealPage on its Application or otherwise in writing of Merchant’s election to accept one of the following “limited acceptance” options: Visa and MasterCard consumer credit (but not debit) cards and Visa and MasterCard commercial credit and debit cards only; or Visa and MasterCard debit cards only; honor all foreign bank-issued Visa or MasterCard Payment Cards; publicly display appropriate signage to indicate all Payment Cards accepted by Merchant, including any limited acceptance categories; examine each Payment Card (credit, debit, etc.) presented at the point of sale to ensure the Payment Card is valid, has not expired and that the Customer’s signature on the Transaction Receipt corresponds to the authorized signature on the back of the Payment Card; in situations where the Payment Card is not physically presented to Merchant at the point of sale (e.g. on-line, mail order, telephone order, pre-authorized, or recurring transactions), have appropriate procedures in place to ensure that each Transaction is made only to the Customer; provide the Customer with a Transaction Receipt for each Transaction. All Transaction Receipts will conform to Payment Brand Rules; and prominently and clearly inform Customers of its identity so that the Customer can distinguish Merchant. Except to the extent permitted by law or the Payment Brand Rules, Merchant will not: set a dollar amount above or below which Merchant refuses to honor otherwise valid Payment Cards; issue a Refund in cash or a cash equivalent (e.g. checks) for any Transaction originally conducted using a Payment Card; request or use a Payment Card account number for any purpose other than to process a payment for goods or services sold; or add any tax or surcharge to a Transaction; if any tax or surcharge amount is imposed, Merchant will have notified RealPage and the Payment Brands at least thirty (30) days’ before, such amount will be included in the Transaction amount, shall not be collected separately, and Merchant’s surcharging practices will comply with Applicable Laws and Payment Brand Rules.
Merchant will not: require a Customer to complete a postcard or similar device that includes Payment Instrument Information in plain view when mailed; require the Customer to pay the fees payable by Merchant under these Card T&Cs; split a single Transaction into two or more Transactions to avoid or circumvent authorization limits or monitoring programs; and accept Payment Cards for the purchase of scrip, as defined by the Payment Brand Rules.
Merchant may request or encourage a Customer to use a Payment Card other than the Payment Card initially presented by the Customer, unless prohibited by the Payment Brand Rules or Applicable Law.
- Payment Brand Rules.
Each Party agrees at all times to comply with Applicable Law. Merchant agrees to comply with all applicable Payment Brand Rules as amended from time to time and such other procedures as RealPage may from time to time prescribe for the creation or transmission of Transaction Data. Merchant will not accept Payment Cards for the provision of the types of goods or services or engage in practices that are included on the Wells Fargo schedule of “Unqualified/Unacceptable Businesses and Practices” as in effect from time to time, and such schedule is accessible at https://usa.visa.com/support/small-business/regulations-fees.html, http://www.mastercard.com/ca/merchant/en/getstarted/rules.html.
- Requirements for Certain Transactions.
Merchant represents and warrants that each Transaction: (i) represents payment for or Refund of a bona fide sale or lease of the goods, services, or both, which Merchant has the legal right to sell and which is provided by Merchant in the ordinary course of its business, as represented in its Application; (ii) is not submitted on behalf of a third party; (iii) represents a current obligation of the Customer solely for the amount of the Transaction; (iv) does not represent the collection of a dishonored check or the collection or refinancing of an existing debt; (v) represents goods that have been provided or shipped, or services that have actually been rendered, to the Customer; (vi) is free from any material alteration not authorized by the Customer or the amount thereof, is not subject to any dispute, setoff, or counterclaim; (vii) if such Transaction represents a credit to a Customer’s Payment Card, is a Refund for a Transaction previously submitted to RealPage; and (viii) complies with the terms of these Card T&Cs, Applicable Law and all applicable Payment Brand Rules.
Furthermore, (i) Merchant represents and warrants that Merchant has not disbursed or advanced any cash to the Customer (except as authorized by the Payment Brand Rules) for itself or to any of its representatives, agents, or employees in connection with the Transaction; (ii) accepted payment for effecting credits to a Customer or a Customer’s Payment Card; (iii) made any representation or agreement for the issuance of Refunds except as stated in Merchant’s Refund Policy; (iv) been provided with any information that would lead Merchant to believe that the enforceability or collectability of the Transaction is in any manner impaired; and (v) submitted any Transaction that Merchant knows or should have known to be either fraudulent, illegal, damaging to the Payment Brand(s), not authorized by the Customer, or otherwise in violation of any provision of these Card T&Cs, Applicable Law, or Payment Brand Rules.
For Transactions stemming from recurring billing, installment plans, deferred payment plans, or prepayment plans, Merchant will: (i) obtain permission from RealPage prior to submitting such Transactions for processing under these Card T&Cs for approved prepayments;(ii) advise the Customer that payment is being made in advance of the shipment or provision of goods or services and the time when shipment or provision of the goods or services is expected; (iii) obtain the Customer’s consent to periodically charge the Customer’s Payment Card on a recurring or periodic basis for the goods or services purchased, and retain their permission for the duration of the recurring services and provide it upon request to RealPage or the issuing bank of the Customer’s Payment Card; (iv) retain written documentation specifying the frequency of the recurring charge and the duration of time during which such charges may be made; (v) prepare and submit for processing separate Transaction Data for each recurring, installment, or deferred payment only on the dates the Customer agreed to be charged and include in the Transaction Data the electronic indicator that the Transaction is a recurring one; and (vi) not submit such Transactions after receiving a cancellation notice from the Customer or notice from RealPage or any Payment Brand (via authorization code or otherwise) that the Payment Card is not to be honored.
Merchant is required to obtain an authorization code through RealPage for each Transaction. RealPage reserves the right to refuse to process any Transaction Data presented by Merchant unless it includes a proper authorization code. If required by the Payment Brand Rules, each authorization code request will include the Payment Card’s expiration date and card authentication code (cvv). Merchant acknowledges that authorization of a Transaction indicates only that the Payment Card contains a valid account number and has an available balance sufficient for the amount of the Transaction; and that authorization of a Transaction does not constitute a representation from RealPage, Wells Fargo, a Payment Brand, or a card issuing bank that a particular Transaction is, in fact, valid or undisputed by the actual Customer.
- Refund and Adjustment Policies and Procedures; Privacy Policies.
- Refund Policy.
RealPage reserves the right to refuse to process any Transaction made subject to a Refund Policy of which RealPage has not been notified in advance. Merchant will maintain a Refund Policy (e.g. “NO REFUNDS”, “REFUNDS WITH ORIGINAL RECEIPT WITHIN 30 DAYS OF ORIGINAL SALE”) in accordance with the Payment Brand Rules; disclose all Refund Policies to RealPage and to Merchant’s Customers; and submit to RealPage, in writing, any material change in Merchant’s Refund Policy not less than fourteen (14) days prior to the effective date of such change.
- Procedure for Refund Transactions.
If Merchant allows a Refund, Merchant will: (i) prepare and deliver to RealPage Transaction Data reflecting any such Refund within three (3) Business Days of approving the Customer’s request for such Refund; (ii) not permit the amount of a Refund to exceed the amount shown as the total on the original Transaction Receipt except by the exact amount required to reimburse the Customer for shipping charges that the Customer paid to return merchandise; (iii) not accept any payment from a Customer as consideration for issuing a Refund; and (iv) not give cash (or cash equivalent) refunds to a Customer in connection with a Transaction, unless required by law or permitted by the Payment Brand Rules.
- Customer Data Protection Policies for Ecommerce Merchants.
- Refund Policy.
- Submitting Transaction Data.
If Merchant fails to send Transaction Data to RealPage within one (1) Business Day after the day of the Transaction, higher interchange fees, additional costs, and increased Chargebacks could be imposed by the Payment Brand. RealPage may from time to time contact Customers to verify that they have received goods or services for which Transactions have been submitted. RealPage reserves the right to refuse to process any Transaction Data presented by Merchant if RealPage reasonably believes based upon documentary evidence, or unless otherwise required by a governmental agent, Applicable Law or the Rules, that the Transaction amount cannot be collected from the Customer or was prepared in violation of any provision of these Card T&Cs, Applicable Law, or the Payment Brand Rules
- Agency Appointment.
Merchant hereby appoints RealPage as its limited agent to receive payments due to Merchant from Wells Fargo in settlement of Payment Card Transactions processed pursuant to these Card T&Cs. RealPage accepts such appointment subject to the terms and conditions of these Card T&Cs. Merchant authorizes and directs Wells Fargo to remit all payments due to Merchant under these Card T&Cs to RealPage s Merchant’s agent for such purposes. Merchant acknowledges and agrees that any such payment to RealPage fully discharges Wells Fargo’s obligations to the Merchant to the extent of such payment and is subject to all of the rights and remedies reserved to Wells Fargo under these Card T&Cs. Merchant further acknowledges and agrees that such payments received by RealPage from a Customer shall be considered the same as payment made directly to Merchant and will constitute receipt by the Merchant of payment from Merchant’s Customer (i) at the time that the Transaction is processed by the Merchant regardless of when or if Merchant receives settlement thereof from RealPage and (ii) for the full amount thereof regardless of any fees, charges and reserves withheld by RealPage or Wells Fargo in accordance with the terms and conditions of these Card T&Cs. Merchant shall have no recourse against any Customer for any amounts received from such Customer in connection with such Customer’s payments. In accepting appointment as the limited authorized agent of Merchant, RealPage assumes no liability for any acts or omissions of Merchant. In addition to any other remedies available to Wells Fargo, Merchant indemnifies and holds harmless Wells Fargo from and against any claims, damages, losses, liabilities, penalties, fines, costs and expenses (including attorney’s fees and expenses) incurred by Wells Fargo arising from this agency appointment or any payments made by Wells Fargo to RealPage in respect of Merchant’s Payment Transactions pursuant to these Card T&Cs. Further, in addition to any other remedies available to RealPage, Merchant indemnifies and holds harmless RealPage from and against any claims, damages, losses, liabilities, penalties, fines, costs and expenses (including attorney’s fees and expenses) incurred by RealPage arising from this agency appointment or any payments made by Wells Fargo to RealPage in respect of Merchant’s Payment Transactions pursuant to these Card T&Cs, except to the extent such any claim, damage, loss, liability, penalty, fine, cost or expense arose from RealPage’s uncured breach of this Agreement, negligence or willful misconduct.
- Merchant’s Settlement Account.
In order to receive funds from RealPage, Merchant will designate (via the Application or otherwise) and maintain one or more bank account(s) used primarily for business purposes and which is held at a bank that is a member of the Automated Clearing House system or the Federal Reserve wire system. Any such designated bank accounts are collectively referred to herein as “Settlement Account”. RealPage will not be liable for any delays in receipt of funds or errors in Settlement Account entries caused by third parties, including, without limitation, delays or errors by the Payment Brands, Wells Fargo or Merchant’s bank. During the term of these Card T&Cs, and thereafter until RealPage notifies Merchant that all amounts due from Merchant under these Card T&Cs have been paid in full, Merchant (i) will not close its Settlement Account without giving RealPage at least five (5) Business Days’ prior written notice and substituting another Settlement Account; (ii) is solely liable for all fees, costs, and overdrafts associated with the Settlement Account; and (iii) authorizes RealPage, or Wells Fargo to initiate electronic credit and debit entries and adjustments to the Settlement Account. If RealPage or Wells Fargo makes a written request in writing, Merchant will execute separate documentation of such authorizations.
- Conveyed Transactions.
- Settlement of Funds.
Subject to Section 4D, for all Transactions, RealPage will submit Merchant’s Transaction Data to the applicable Payment Brand after RealPage receives funds for Settled Transactions from the Payment Brands, RealPage will provisionally fund Merchant’s Settlement Account subject to Sections 4F and 4G. The dollar amount payable to Merchant for Settled Transactions will be equal to the amount submitted by Merchant in connection with its sale Transactions. In the next following invoicing cycle, RealPage shall invoice Merchant for the following: (i) all fees, charges, and other amounts described on Schedule A Interchange Fee Pricing Sheet or that Merchant has otherwise agreed to pay; (ii) all Refund Transactions and Chargebacks; (iii) all Reserve Account amounts (as defined in Section 4G); and (iv) all fees, charges, fines, assessments, penalties, or other liabilities (and all related actual costs and expenses incurred by RealPage) that may be imposed on RealPage or Wells Fargo from time to time by the Payment Brands. Within two to four Business Days’ following RealPage’s delivery of the invoice, RealPage will electronically debit Merchant’s Settlement Account for charges set forth on the invoice.
- Negative Amounts.
Merchant will maintain sufficient funds in the Settlement Account to prevent the occurrence of a negative balance. In the event that the proceeds from Merchant’s Settled Transactions and the balance of Merchant’s Settlement Account are not sufficient to pay amounts due from Merchant under these Card T&Cs, RealPage may, in addition to any other rights and remedies under these Card T&Cs, pursue any one or more of the following: (i) demand and receive immediate payment for such amounts; (ii) and for the amount of the negative balance; (iii) apply funds held in the Reserve Account against the negative amount; or (iv) withhold all or some of Merchant’s Settlement funds and apply them against the negative amount. Merchant shall, promptly upon notice from RealPage, deposit sufficient funds in the Settlement Account as reasonably necessary to fund anticipated debits for at least the next three (3) Business Days.
- Reserve Accounts.
To protect itself against Anticipated Risks arising out of or relating to Merchant’s acceptance of Payment Instruments, Wells Fargo and RealPage may each require Merchant to fund and maintain Reserve Accounts as follows.
- Wells Fargo.
Merchant authorizes RealPage and Wells Fargo to establish a reserve account as provided in this Section 4.G.a. The amount of such reserve account shall be set by Wells Fargo, in its sole discretion, based upon risk, liquidity and other factors related to Merchant’s history with respect to Transactions and Payment Brand acceptance and the potential risk loss to Wells Fargo as it may determine from time to time. At the inception of these Card T&Cs, the reserve amount will be $0 and can be increased up to an amount determined by Wells Fargo in its sole discretion. The reserve account shall be fully funded by Merchant within three (3) days’ notice to Merchant, or instances of fraud, security breach, or if Merchant were to default in any way on its obligations under these Card T&Cs, reserve account funding may be required immediately. The reserve account may be funded through one, all, or any combination of the following: (i) one or more debits to merchants deposit accounts held at Wells Fargo: (ii) withholding of any settlement due Merchant arising from Transaction or any other payments due to Merchant under these Card T&Cs; (iii) Merchant’s delivery to Wells Fargo of a letter of credit; or (iv) if Wells Fargo agrees and Merchant is permitted to do so without breaching any of its agreements, Merchant’s pledge to Wells Fargo of a freely transferable and negotiable certificate of deposit. Any such letter of credit or certificate of deposit shall be issued or established by a financial institution acceptable to Wells Fargo and shall be in a form satisfactory to Wells Fargo. Any reserve account will be held by Wells Fargo for the greater of ten (10) months after termination of these Card T&Cs or for such longer period of time as is consistent with Wells Fargo’s liability for Merchant’s activities in accordance with any applicable Association’s Rules. Unless required by Applicable Law, funds in the reserve account shall not accrue interest. If Merchant’s funds in the reserve account are not sufficient to cover the losses, fees or other charges due from Merchant, or if the funds in the reserve account have not been released, Merchant agrees to promptly pay Wells Fargo such sums upon request. To secure all of Merchant’s present and future obligations to Wells Fargo (collectively “Obligations”), Merchant hereby grants to Wells Fargo a security interest in all of Merchant’s rights to and interests in: (x) any reserve account established pursuant to this Section 4.G.a, and (y) all amounts now or hereafter owing to Merchant under these Card T&Cs and held by Wells Fargo (all assets described in subsections (x) and (y) being collectively referred to as “Collateral”). In addition to any rights granted Wells Fargo under Applicable Law, Wells Fargo is hereby authorized (and any related notice and demand are hereby expressly waived), to set off, recoup and to appropriate and to apply any and all such amounts owing Merchant, funds held by Wells Fargo on behalf of Merchant under these Card T&Cs, account balances comprising the Collateral against and on account of Merchant’s Obligations, whether such Obligations are liquidated, unliquidated, fixed, contingent matured or unmatured. In the case of any Collateral consisting of a deposit account with Wells Fargo, Merchant hereby agrees that Wells Fargo shall control the disbursements of such funds which are to be (a) paid to Merchant, RealPage or Wells Fargo to cover losses incurred in connection with Merchant or (b) returned to Merchant upon a reduction in the potential risk to RealPage and Wells Fargo arising from the provision of services to Merchant. Merchant agrees to duly execute and deliver to Wells Fargo such additional instruments, documents and agreements as may be reasonably requested to perfect and confirm the liens, security interests in the Collateral set forth in these Card T&Cs. Wells Fargo may draw against Merchant’s RealPage Reserve Account to cover any losses incurred by Wells Fargo with respect to Merchant without the consent of RealPage or Merchant.
In addition to any reserve account established by Wells Fargo pursuant to Section 4.G.a, RealPage may, from time to time, temporarily suspend or delay payment to Merchant of amounts due under these Card T&Cs, or designate an amount of funds that RealPage will maintain, and establish a “RealPage Reserve Account” with such funds. RealPage may require that the RealPage Reserve Account contain sufficient funds as determined by RealPage to cover any unbilled processing costs; and RealPage’s estimated exposure based on Anticipated Risks; may be funded by RealPage’s (i) debiting the Settlement Account; and/or (ii) withholding all or some of the Merchant’s Settlement funds; will be held and controlled by RealPage (and funds therein may be comingled with other funds); and will not bear interest. Upon the establishment of a RealPage Reserve Account, Merchant does irrevocably grant to RealPage a security interest in any interest Merchant may now have or later acquire in any and all funds, together with the proceeds thereof, that may at any time be in the RealPage Reserve Account and that would otherwise be payable to Merchant pursuant to the terms of these Card T&Cs, subject to security interests granted to Wells Fargo pursuant to Section 4.G.a; and execute and deliver to RealPage such instruments and documents that RealPage may reasonably request to perfect and confirm the security interest in the RealPage Reserve Account funds. RealPage may (but is not required to) apply funds in the RealPage Reserve Account toward, and set off any funds that would otherwise be payable to Merchant against, the satisfaction of any amounts which are or may become due from Merchant to RealPage or to Wells Fargo pursuant to these Card T&Cs, including without limitation thereof any funds required by Wells Fargo to fund the reserve account established pursuant to Section 4.G.a. RealPage will pay to Merchant any funds remaining in the RealPage Reserve Account (ten) 10 months after termination of these Card T&Cs or after Merchant: satisfies all of its obligations under the Master Agreement, including these Card T&Cs, whichever is later; Merchant will execute all documents reasonably requested by RealPage in connection with the return of any RealPage Reserve Account funds.
- Wells Fargo.
Conveyed Transactions are Transactions that Merchant submits to RealPage, but which are then conveyed to one or more third parties or Payment Brands that are not serviced hereunder by Wells Fargo (called “Third Party Brands”) for settlement and funding directly by them to Merchant (e.g. American Express Transactions). For Conveyed Transactions Merchant agrees to have a valid agreement in effect with the applicable Third Party Brand. Merchant will indicate in the Application the Third Party Brands with which it has such arrangements in force and will notify RealPage in writing of any additions, deletions or other changes to such information provided in Merchant’s application and such change will take effect thirty (30) days’ after RealPage’s receipt of such notice. RealPage may decline to convey Transactions to Third Party Brands designated by Merchant. Merchant warrants and represents to RealPage that it has an agreement in good standing with each such third party or Payment Brand designated by Merchant. Payment of proceeds due Merchant for Conveyed Transactions will be governed solely by such agreement, and RealPage does not bear any responsibility or liability for performing or failing to perform any term, condition, or covenant under Merchant’s agreement with any Third Party Brand concerning Conveyed Transactions, including, without limitation, the funding and settlement of Merchant’s Conveyed Transactions. Wells Fargo provides no services and undertakes no obligations or responsibilities to Merchant or RealPage with respect to Conveyed Transactions. In addition to any other remedies available to Wells Fargo, Merchant indemnifies and holds harmless Wells Fargo from and against any claims, damages, losses, liabilities, penalties, fines, costs and expenses (including attorney’s fees and expenses) incurred by Wells Fargo arising from Conveyed Transactions. Further, in addition to any other remedies available to RealPage, Merchant indemnifies and holds harmless RealPage from and against any claims, damages, losses, liabilities, penalties, fines, costs and expenses (including attorney’s fees and expenses) incurred by RealPage arising from Conveyed Transactions except to the extent such any claim, damage, loss, liability, penalty, fine, cost or expense arose from RealPage’s uncured breach of this Agreement, negligence or willful misconduct. Real Page reserves the right to discontinue providing services in connection with Conveyed Transactions without notice.
- Submitting Transaction Data.
- Statements and Reporting.
RealPage will supply a detailed statement (or online access thereto) reflecting the activity of Merchant’s account(s) on or around the 15th day of each month. If Merchant accesses account statements via the internet, Merchant will ensure that such online access is secure.
If Merchant believes any adjustments should be made to its Settlement Account, Merchant will notify RealPage in writing within ninety (90) days’ after any such adjustment is or should have been made. RealPage has no obligation to research or affect changes to Merchant’s Settlement Account which are not brought to RealPage’s attention within ninety (90) days’ after Merchant received its activity statement.
- Statements and Reporting.
- Retrieval Requests.
A Retrieval Request is a request for information by a Customer or Payment Brand relating to a claim or complaint concerning a Transaction submitted by Merchant. Because a Retrieval Request requires Merchant to provide RealPage with specific Transaction information, Merchant will store and retain Transaction Data and Transaction Receipts, but will do so solely in compliance with the Payment Brand Rules and the Security Standards. Merchant acknowledges that failure to fulfill a Retrieval Request timely and in accordance with Payment Brand Rules may result in an irreversible Chargeback. If RealPage receives a Retrieval Request, RealPage will forward the same to Merchant. Upon receiving a Retrieval Request, Merchant agrees to respond to the Retrieval Request within the time frame provided; and include with Merchant’s response the following documentation: a written resolution of Merchant’s investigation of the Retrieval Request; and legible copies of any supporting documentation requested or required by the Retrieval Request.
- Chargeback Reasons. Merchant is liable for all Chargebacks in accordance with Payment Brand Rules.
Common reasons for Chargebacks include, but are not limited to: (i) Merchant fails to issue a Refund to a Customer after the Customer returns or does not receive goods or services; (ii) Merchant did not obtain an authorization/approval code, as required under Section 2; (iii) The Transaction Data was prepared incorrectly or fraudulently; (iv) RealPage did not receive Merchant’s response to a Retrieval Request in accordance with Section 6; (v) The Customer disputes the Transaction or the authenticity of the signature on the Transaction Receipt, or claims that the Transaction is subject to a set-off, defense, or counterclaim; (vi) The Customer refuses to make payment for a Transaction because, in the Customer’s opinion, a claim or complaint has not been resolved or has been resolved in an unsatisfactory manner; and (vii) The Customer disputes making the Transaction and the Payment Card was not physically presented at the time of the Transaction. In this case Merchant acknowledges that if the Merchant does not have an electronic record or physical imprint of the Payment Card, the Payment Brand Rules may not allow the Merchant to challenge the Chargeback.
- Responding to Chargebacks.
If Merchant has reason to dispute or respond to a Chargeback, then Merchant will do so by the date provided on the applicable Chargeback notice. If Merchant misses the Chargeback due date, RealPage has no obligation to investigate or attempt to obtain a reversal or other adjustment to any Chargeback on Merchant’s behalf. Upon receiving a Chargeback, Merchant may resubmit the applicable Transaction Data for a second presentment if permitted by the Payment Brand Rules. Wells Fargo will use reasonable efforts in accordance with industry practices and Payment Brand Rules to process Merchant’s disputes of Chargebacks through Payment Brands procedures, but Wells Fargo will bear no responsibility to Merchant for any resolution of such disputes. RealPage will use reasonable efforts in accordance with Payment Brand Rules to process Merchant’s disputes of Chargebacks through Payment Brands procedures, but RealPage will bear no responsibility to Merchant for any resolution of such disputes, but to the extent applicable to RealPage, will meet any deadline imposed on it by the Payment Brands regarding inquiries, disputes of Chargebacks and related issues.
- Excessive Chargebacks.
If Merchant is receiving an excessive amount of Chargebacks or initiates excessive Refunds, in addition to RealPage’s other remedies under these Card T&Cs, RealPage may do any one or more of the following: review Merchant’s internal procedures relating to acceptance of Payment Cards and business practices and notify Merchant of new procedures Merchant should adopt in order to reduce future Chargebacks and Refunds; notify Merchant of a new rate RealPage will charge to process Merchant’s Chargebacks; if required under the Payment Brand Rules establish a reserve account; or terminate these Card T&Cs in accordance with Section 10C. Merchant understands that having excessive Chargebacks and Refunds may result in assessments, fines, fees, and penalties by the Payment Brands. Merchant agrees to reimburse RealPage immediately for any such assessments, fines, fees, and penalties imposed on RealPage or the Wells Fargo and any related loss, cost, or expense incurred by RealPage or the Wells Fargo.
- Chargeback Reasons. Merchant is liable for all Chargebacks in accordance with Payment Brand Rules.
- Display of Payment Brand Marks.
Payment Brand Marks are the brands, emblems, trademarks, and logos that identify a Payment Brand. Merchant has no ownership rights in the Payment Brand Marks and cannot assign its right to use the Payment Brand Marks under these Card T&Cs to any third party. Merchant will: (i) use the Payment Brand Marks only as expressly permitted by the Payment Brand Rules; (ii) use the Payment Brand Marks only to promote the services covered by the Marks; (iii) not use the Payment Brand Marks in any way that could cause Customers to believe that the goods or services offered by Merchant are sponsored, endorsed, or guaranteed by RealPage, Wells Fargo or the Payment Brands; and (iv) cease using the Payment Brand Marks when these Card T&Cs terminates.
- Fees and Adjustments.
- Schedule A Interchange Fee Pricing Sheet.
Merchant will pay all applicable fees for all Card Payment Services in accordance with Schedule A Interchange Fee Pricing Sheet, as amended from time to time. Merchant acknowledges that the fees payable under these Card T&Cs and stated in Schedule A Interchange Fee Pricing Sheet are based upon (i) Merchant’s annual volume, average Transaction size, and other information provided by Merchant or contained in these Card T&Cs, and (ii) the assumption that Merchant’s Transactions will qualify for certain interchange rates as determined in each case by the applicable Payment Brand. If any of Merchant’s Transactions fail to qualify for such interchange rates, RealPage will process each such Transaction at the applicable interchange rate determined by the applicable Payment Brand; and will be rounded up to the next full cent to the extent they contain a fraction of a cent. Merchant is solely responsible for all communication expenses required to facilitate the transmission of all Transaction Data to RealPage.
The fees owed by Merchant under these Card T&Cs (under Schedule A Interchange Fee Pricing Sheet or any additional pricing supplement) may be adjusted at any time within thirty (30) days’ prior written notice to reflect increases in interchange, assessments, or other Payment Brand fees and to reflect additional fees imposed by the Payment Brands or Wells Fargo; or to reflect increases in, or additions to, third party fees. All adjustments hereunder will be effective either upon the date set forth in the written notice or upon the date the corresponding increase or additional fee is implemented by the Payment Brand, Wells Fargo or third party provider.
- Schedule A Interchange Fee Pricing Sheet.
- Term and Termination.
Unless sooner terminated as provided in the Master Agreement or these Card T&Cs, these Card T&Cs shall continue in effect so long as Merchant shall be a licensee of the Payment Processing Product Center, and in any event, shall be coterminous with the Master Agreement.
- Termination by RealPage.
In addition to the termination provisions in the Master Agreement, RealPage may selectively terminate providing Payment Processing Services to one or more Sites without terminating Payment Processing Services to other Sites in accordance with these Card T&Cs.
- Termination by Merchant.
In addition to the termination provisions in the Master Agreement, Merchant may terminate these Card T&Cs upon at least thirty (30) days’ prior written notice to RealPage.
- Termination of Payment Card Services.
In addition to the termination provisions in the Master Agreement and these Card T&Cs, without prejudice to any other rights, RealPage may, without prior notice, immediately terminate the provision of Payment Card Services hereunder if, in its reasonable judgment: (i) Chargebacks and Refunds are excessive as determined by RealPage’s sole discretion; (ii) Merchant fails to maintain sufficient funds in its Settlement Account to meet its obligations hereunder; (iii) any insurance policy obtained by RealPage relating to Chargebacks and Refunds is cancelled or terminated for any reason; (iv) Merchant fails to provide financial statements suitable to RealPage on request; (v) RealPage cannot perform its duties under these Card T&Cs due to Wells Fargo’s termination of its agreement with RealPage, or (vi) RealPage determines that it is not feasible to provide to Merchant the Payment Card Services contemplated by these Card T&Cs, in which case RealPage is not obligated to provide replacement Payment Card Services. In the event RealPage elects to terminate these Card T&Cs pursuant to Section 10(D)(vi) hereof, RealPage will do so only after providing to Merchant sixty (60) days’ prior written notice of its intent to do so. Following the termination of these Card T&Cs, Merchant agrees to maintain in its Settlement Account an amount reasonably determined by RealPage to cover all Chargebacks and Refunds, deposit charges, refunds, equipment charges, and fees incurred by Merchant for a period of ninety (90) days’ (the “Charges”). If the amount in Merchant’s Bank Account is not adequate to cover the Charges, Merchant agrees to pay RealPage the amount it owes under these Card T&Cs, either during the Term or upon termination, upon demand, together with all costs and expenses incurred to collect that amount, including reasonable attorneys’ fees.
- Termination by Wells Fargo.
Wells Fargo or RealPage at Wells Fargo’s direction may terminate or remove Merchant from services provided under these Card T&Cs if Wells Fargo is compelled to do so by any Payment Brand or directed or advised to do so by any regulator of Wells Fargo; provided, that to the extent permissible by the applicable Payment Brand or regulator, Wells Fargo, RealPage and Merchant shall mutually agree on the timeframe for such termination or removal.
- Transition Services.
In the event of the expiration or termination of these Card T&Cs for any reason other than Section 10(D)(iii), 10(D)(v) or Section 10(E) hereof, and only where Merchant remediates any event for termination in accordance with Sections10(D)(i-ii), 10(D)(iv), and for so long as Merchant has not otherwise breached any provision of these Card T&Cs, RealPage will provide the Services for a period not to exceed ninety (90) days’ following the effective date of any such termination. RealPage will reasonably cooperate in the orderly transition of Merchant to another card processing provider as requested by Merchant in writing (“Termination Assistance”). Such Termination Assistance shall be mutually agreed upon in a statement of work and shall document the details and fees for such Termination Assistance. Prior to providing any Termination Assistance, RealPage shall deliver to Merchant a good-faith estimate of the expenses and charges for Termination Assistance.
- Merchant Indemnification.
In addition to any other indemnity given by Merchant in the Master Agreement, Merchant shall defend, indemnify and hold harmless RealPage, Wells Fargo, and their directors, officers, employees, and agents ( each an “Indemnified Party”) from and against any liabilities, losses, damages, claims, obligations, demands, charges, costs or expenses imposed in any manner upon, incurred by or accruing against such Indemnified Party (“Losses and Liabilities”) in connection with any third party claim arising out of or relating to any Transactions, including without limitation, unauthorized Transactions and prohibited Transactions (including fees and disbursements of legal counsel and accountants, regardless of whether an attorney is an employee of any Indemnified Party), including without limitation, any violation of any Payment Brand Rule or Applicable Law in the conduct of its business and the performance of its obligations under these Card T&Cs and Application, provided however, Merchant shall have no obligation to indemnity RealPage hereunder to the extent any Loss or Liability arises from RealPage’s uncured breach of this Agreement, negligence or willful misconduct.
- Transaction Data, Payment Card Information and Payment Card Industry Compliance.
- Merchant Data Security Requirements:
Merchant acknowledges that its: failure, or the failure of any of its Service Providers, to comply with the Payment Brand Rules, including the Security Standards, or the compromise of any of Transaction Data or Payment Card Information (whether such Payment Card Information is under the control of Merchant or its Service Provider) may result in assessments, fines, and penalties by the Payment Brands and termination of these Card T&Cs, subject to the terms of these Card T&Cs; and use of any fraud mitigation or security enhancement solution (e.g. an encryption product or service), whether provided to Merchant by RealPage or a third party, in no way limits Merchant’s obligation to comply with the Security Standards or Merchant’s obligations set forth in these Card T&Cs. (including all of RealPage’s and Wells Fargo’s reasonable attorneys’ fees and other costs related to the forensic exam or audit)
Merchant will not and will enter into agreements with its Service Providers requiring Service Providers to not:
- disclose Payment Card Information, except: to select employees, agents, and contractors on a “need to know” basis, solely for the purpose of assisting Merchant in completing a Transaction or otherwise complying with these Card T&Cs; or as specifically authorized or required by the Security Standards, Payment Brand Rules, Applicable Law;
- use Payment Card Information, except: to complete a Transaction; or as specifically permitted by these Card T&Cs, the Security Standards, Payment Brand Rules, or Applicable Law; or
- sell, transfer, or disclose to third parties any materials that contain Transaction Data or Payment Card Information in the event of Merchant’s failure, including bankruptcy, insolvency, or other suspension of business operations.
Merchant will, and will require its respective subcontractors to:
- comply with the Security Standards, Payment Brand Rules, and all applicable laws relating to the security, storage, use, transmission, and disclosure of Transaction Data and Payment Card Information;
- provide RealPage, upon its request, with all tests, scans, and assessments evidencing Merchant’s compliance with the Security Standards, Payment Brand Rules, and Applicable Law;
- store and discard Transaction Data, Payment Card Information, and all media containing Payment Card Information in compliance with Payment Brand Rules and Security Standards;
- notify RealPage immediately if Merchant determines or suspects that Transaction Data or Payment Card Information has been compromised; assist RealPage in providing notification to all interested Parties as may be required by Applicable Law or Payment Brand Rules;
- notify RealPage immediately of its use of any Service Provider and Payment Application;
- ensure that all Service Providers and Payment Applications (other than those provided by RealPage and/or Wells Fargo) used by Merchant: comply with the Security Standards;
- reimburse RealPage within thirty (30) days’ following an invoice for any assessment, fine, or penalty imposed on RealPage or Wells Fargo to the extent caused by or arising from Merchant’s acceptance of Payment Cards, and not otherwise arising from RealPage’s uncured breach of this Agreement, negligence or willful misconduct;
- cooperate with, and cause all applicable Service Providers to cooperate with, any forensic examination or other audit required by the Payment Brands, RealPage or Wells Fargo because of a Data Compromise Event; and
- pay for all direct costs and expenses related to a forensic examination or other audit conducted by Merchant required by the Payment Brands, RealPage, or Wells Fargo(including all of RealPage’s and Wells Fargo’s reasonable attorneys’ fees and other costs related to the forensic exam or audit) arising from Merchant’s acceptance of Payment Cards, where such audit is not necessitated by RealPage’s uncured breach of this Agreement, negligence or willful misconduct; take actions necessary to achieve and maintain compliance in by Merchant accordance with the results of, and in the time frame set forth in, a forensic examination or audit report from RealPage, the Payment Brands, or Wells Fargo; and upon request, return all materials that contain Transaction Data or Payment Card Information to RealPage or provide RealPage with acceptable proof of its secure destruction.
- share Merchant’s financial information, information related to Merchant’s Transactions, and other information provided by Merchant with RealPage affiliates where necessary to permit RealPage to provide Services hereunder, subject to a written agreement with RealPage affiliates that will receive the information containing confidentiality and data security obligations at least as protective as those set forth herein;
- share Merchant’s financial information, information related to Merchant’s Transactions, and other information provided by Merchant with the Payment Brands;
- use or disclose information related to Merchant’s Transactions: (i) as necessary to process Merchant’s Transactions or otherwise provide Services and maintain Merchant’s account pursuant to these Card T&Cs; (ii) to detect prevent, reduce, or otherwise address fraud, security, or technical issues; (iii) to enhance or improve RealPage’s products and Services generally; or (iv) as required or permitted by the Payment Brands or Applicable Law; and (v) prepare, use, or share with third parties, aggregated, non-personally identifiable information derived from Transaction Data of all of RealPage’s customers or specific segments of RealPage’s customers provided that such aggregated information is not traceable to any individual record, to Merchant or to identify the cardholder as a customer of Merchant in any way;
- require a forensic examination of Merchant or Merchant’s Service Providers to investigate a Data Compromise Event or suspected event;
- require Merchant or Merchant’s Service Providers to engage a forensic examiner in order to expedite the investigation of the Data Compromise Event or suspected event. Alternatively, if Merchant fails to retain a forensic examiner, RealPage may engage at Merchant’s sole expense, a forensic examiner on Merchant’s or Merchant’s Service Provider’s behalf, in which case, Merchant or Merchant’s Service Provider will provide reasonable assistance and cooperation to such forensic examiner in the course of the investigation; and
- investigate a Data Compromise Event of Merchant, if permitted under the Payment Brand Rules.
- RealPage Data Security Requirements.
RealPage acknowledges that its use of any fraud mitigation or security enhancement solution (e.g. an encryption product or service), in no way limits RealPage’s obligation to comply with the Security Standards or its respective obligations set forth in these Card T&Cs.
Real Page will not, and will enter into agreements with their subcontractors who access nonpublic personal information or PCI data requiring subcontractors to not:
- disclose Payment Card Information, except: to select employees, agents, and contractors on a “need to know” basis, solely for the purpose of assisting Merchant in completing a Transaction or otherwise complying with these Card T&Cs; or as specifically authorized or required by the Security Standards, Payment Brand Rules, Applicable Law;
- use Payment Card Information, except: to complete a Transaction; or as specifically permitted by these Card T&Cs, the Security Standards, Payment Brand Rules, or Applicable Law;
RealPage will, and will require its respective subcontractors to:
- comply with the Security Standards, Payment Brand Rules, and all Applicable Laws relating to the security, storage, use, transmission, and disclosure of Transaction Data and Payment Card Information;
- store and discard Transaction Data, Payment Card Information, and all media containing Payment Card Information in compliance with Payment Brand Rules and Security Standards;
- notify Merchant immediately if RealPage, or any of its subcontractors that access, use, transmit or store nonpublic personally identifiable information, determines or suspects that Transaction Data or Payment Card Information has been compromised; and
- ensure that all subcontractors Payment Applications used by RealPage or Wells Fargo comply with the Security Standards;
- cooperate with, and cause all applicable subcontractors to cooperate with, any forensic examination or other audit required by the Payment Brands or Wells Fargo because of a Data Compromise Event attributable to RealPage;
- pay for all direct costs and expenses related to a forensic examination or other audit conducted by Real Page or Wells Fargo required by the Payment Brands or Wells Fargo necessitated because of a Data Compromise Event attributable to RealPage.
Each Party agrees to comply with the following Security Standards, as amended from time to time, as applicable to such Party:
- PCI Security Standards Council website: www.pcisecuritystandards.org
- Visa’s CISP program: www.visa.com/cisp
- MasterCard’s SDP program: www.mastercard.com/sdp
- Discover’s DISC: www.discovernetwork.com/merchants/data-security/disc.html
- AMEX’s DSOP: www.americanexpress.com/datasecurity
1. Except as otherwise permitted under subsection 12(D)(4), for the Term and a period of 7 (seven) years’ after the expiration or termination of these Card T&Cs (or longer period if prescribed under Applicable Laws), each Party to whom Confidential Information is disclosed (“Recipient”) shall:
- use the Confidential Information as permitted by these Card T&Cs
- restrict disclosure of the Confidential Information to contractors, subcontractors, agents, and consultants who are under an agreement for the protection of confidentiality; and legal, financial, and tax advisors of the Recipient and its affiliates, all of the foregoing only to the extent each has a need to know (each, a “Permitted Party”);
- not disclose the Confidential Information to any person or entity other than a Permitted Party without the prior written consent of the Party that disclosed the Confidential Information hereunder (“Discloser”);
- advise those Permitted Parties who access the Confidential Information of their obligations with respect thereto; and
- copy the Confidential Information only as necessary for those Permitted Parties who are entitled to receive it, and ensure that all confidentiality notices are reproduced in full on such copies.
2. Return of Confidential Information. Confidential Information, including permitted copies, shall be deemed the property of the Discloser. Promptly upon the written request of Discloser, the Recipient shall return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Discloser or, if so directed by the Discloser, destroy such Confidential Information, except for archival copies or to the extent Recipient must delay such return or destruction in order to comply with internal record retention policies, Applicable Laws or Payment Brand Rules. The Discloser shall reimburse Recipient for the reasonable cost of such return or destruction within thirty (30) days’ of receiving an itemized invoice from the Recipient. The Recipient also shall certify in writing that it has satisfied its obligations under this Paragraph within ten (10) calendar days’ of a written request by the Discloser.
3. The obligations in this Section 12(D) do not apply to any Information that Recipient can demonstrate: (A) is or becomes available to the public through no breach of this agreement; (B) was previously known by the Recipient without any obligation to hold it in confidence; (C) is received from a third party who, to the Recipient’s knowledge, without independent investigation, is free to disclose such information without restriction; or (D) is independently developed by the Recipient without the use of Confidential Information of the Discloser.
4. Exceptions. Either Party may disclose Confidential Information: (i) if the other Party provides its prior written approval; (ii) in response to a court order or a requirement of law, regulation, or a governmental body of the United States or any political subdivisions thereof, but only to the extent of and for the purposes of such order or requirement, and only if the Recipient first notifies the Discloser of the order and permits the Discloser to seek an appropriate protective order or, in the case of RealPage and/or Wells Fargo, to a Payment Brand, a governmental agency and/or third party having regulatory control over RealPage and/or Wells Fargo.
- Merchant Data Security Requirements:
- Information About Merchant and Merchant’s Business.
Additional Financial Information. Upon five (5) days’ written notice at any time, Merchant agrees to furnish to RealPage all financial statements and information as RealPage may reasonably request. Merchant’s signature on these Card T&Cs authorizes RealPage to perform any credit check with respect to Merchant as deemed appropriate by RealPage.
Audit Rights; Site Visit; Website Inspection. With prior notice and during Merchant’s normal business hours, RealPage’s authorized representatives may visit Merchant’s business premises and may examine Merchant’s books and records that pertain to Merchant’s Transactions or Merchant’s compliance with these Card T&Cs. Furthermore, Merchant may be contacted by RealPage or a third party contracted by RealPage who will need to gain access to Merchant’s business operation to perform a site visit and inspection (the “Site Visit”) in compliance with Payment Brand Rules. The Site Visit will include, among other things, an interview with Merchant regarding the nature of Merchant’s business, as well as photographs of Merchant’s business operation. If Merchant is unavailable for the Site Visit as scheduled, RealPage may suspend the settlement of Merchant’s Transactions until a Site Visit can be completed and approved by RealPage. If Merchant operates an ecommerce website, RealPage is obligated under the Payment Brand Rules to investigate the contents of such website, either directly or through review of screen shots presented to RealPage by Merchant (the “Website Inspection”). RealPage may suspend the settlement of Merchant’s Transactions until a Website Inspection can be completed and approved by RealPage. In the event that Merchant fails to reasonably cooperate with the required Site Visit or Website Inspection, or in the event the results of the Site Visit or the Website Inspection are not approved by RealPage, RealPage may terminate these Card T&Cs immediately upon notice to Merchant. Merchant acknowledges that RealPage may make unannounced (“secret shopper”) visits to Merchant’s premises and websites for the purpose of monitoring Merchant’s business practices.
Notification to RealPage of Merchant’s Changes. Merchant agrees to provide RealPage at least thirty (30) days’ prior written notice of its intent to change current product lines or services, Merchant’s trade name, or the manner in which Merchant accepts Payment Cards. If RealPage determines such a change is material to its relationship with Merchant, RealPage may refuse to process Transaction Data made subsequent to the change or terminate these Card T&Cs. Merchant agrees to provide RealPage with prompt written notice: if Merchant is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding; or of any: adverse change in Merchant’s financial condition; planned or anticipated liquidation or substantial change in the basic nature of Merchant’s business; transfer or sale of any substantial part (25% or more in value) of Merchant’s total assets; judgment, writ, warrant of attachment, execution, or levy against any substantial part (25% or more in value) of Merchant’s total assets not later than three (3) days’ after Merchant obtains knowledge of any such judgment, writ, warrant of attachment, execution, or levy; or change in the control or ownership of Merchant or Merchant’s parent if Merchant or Merchant’s parent is not a corporation whose shares are listed on a national securities exchange or on an over-the-counter market.
Referral Sources. Merchant may have been referred to RealPage for the execution of these Card T&Cs by a third party who has entered into a formal referral relationship with RealPage (a “Referral Partner”). If that is the case, RealPage will be the sole provider of the services necessary to authorize, process, and settle all of Merchant’s Transactions in accordance with the terms and conditions of these Card T&Cs; however, Referral Partner may be involved in the servicing and maintenance of Merchant’s merchant account. Therefore, notwithstanding anything to the contrary in these Card T&Cs, Merchant hereby authorizes RealPage to share Merchant’s financial information, information related to Merchant’s Transactions (including Payment Instrument Information) and any other information that Merchant provides to RealPage with Referral Partner. Merchant understands and agrees that RealPage and Wells Fargo will not be responsible for Referral Partner’s subsequent use or disclosure of such information.
- Disclaimer of Warranties.
OTHER THAN FOR PRODUCT CENTER WARRANTIES EXPRESSLY SET FORTH IN THE MASTER AGREEMENT, OR OTHER WARRANTIES EXPRESSLY SET FORTH IN THESE CARD T&CS, NO PARTY MAKES ANY WARRANTY, GUARANTY, REPRESENTATION OR COVENANT OF ANY TYPE, EXPRESS OR IMPLIED, WITH REGARD TO ANY ASPECT OF ANY SOFTWARE, SYSTEM, OR SERVICES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY. REALPAGE DOES NOT WARRANT THAT THE USE OF THE SYSTEM, INCLUDING THE SOFTWARE, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REALPAGE AND WELLS FARGO DISCLAIM ANY AND ALL LIABILITY WHATSOEVER CONCERNING THE ACCURACY, CORRECTNESS, CURRENCY, AVAILABILITY, RELIABILITY, OR LOSS OF DATA.
- Disclaimer of Liability; Limitation of Liability; Disclaimer of Consequential Damages.
- Disclaimer of Liability.
RealPage and Wells Fargo are Service Providers, not insurers. Merchant acknowledges that data processing services, including Payment Processing Services, involves the risk of human and machine errors, omissions, delays, and losses, including inadvertent loss or misstatement of data that may give rise to loss or damage, and, therefore, to the extent RealPage is liable for the same, its liability shall be subject to the limitations provided herein. In addition to all other limitations on the liability of RealPage and Wells Fargo contained in the Master Agreement and these Card T&Cs, neither RealPage nor Wells Fargo shall be liable to Merchant or Resident or any other person for: (i) any loss resulting from defective or faulty equipment regardless if owned by RealPage or Wells Fargo; (ii) the unavailability of Payment Processing Services caused by the termination of contracts with software licensors, computer hardware vendors, processors, or installers, whether terminated by RealPage, Wells Fargo, or any other person for any reason; (iii) delay, interruption, or termination of any Payment Services caused by any reason except for failure of RealPage to repair or replace equipment at Merchant’s expense, if RealPage has undertaken an obligation to repair or replace; or (iv) for any event of force majeure.
- Limitation of Liability.
Except in connection with fraud or willful misconduct by RealPage, and notwithstanding any other provision in the Agreement of these Card T&Cs, in no case shall Merchant be entitled to recover damages from RealPage and Wells Fargo (collectively) that exceed the fees earned by RealPage pursuant to these Card T&Cs during the twelve (12) month period immediately prior to the event giving rise to the claim for damages, not to exceed $50,000. The limitation of liability and exclusion of certain damages contained herein shall apply regardless of the success or effectiveness of other remedies.
- Disclaimer of Consequential Damages.
THE PARTIES ACKNOWLEDGE THAT EACH OF THEM RELIED UPON THE INCLUSION OF THIS LIMITATION IN CONSIDERATION OF ENTERING INTO THE MASTER AGREEMENT. EXCEPT IN CONNECTION WITH FRAUD OR WILLFUL MISCONDUCT BY REALPAGE, NEITHER REALPAGE, NOR WELLS FARGO, SHALL BE LIABLE FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THE MASTER AGREEMENT, ACCESS TO OR USE OF THE SOFTWARE OR ANY OF THE SERVICES TO BE PERFORMED BY REAL PAGE, OR WELLS FARGO PURSUANT TO THESE CARD T&CS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Disclaimer of Liability.
To the extent that Merchant becomes a debtor under any chapter of Title 11 of the United States Code and such event does not result in the termination of these Card T&Cs, Merchant hereby unconditionally and absolutely waives any right or ability that Merchant may otherwise have had to oppose, defend against, or otherwise challenge any motion filed by RealPage, or third party, for relief from the automatic stay of 11 U.S.C. § 362(a) to enforce any of their rights or claims under these Card T&Cs.
Unless Merchant is otherwise exempt, and, if applicable, provides a valid exemption certificate, Merchant agrees to pay any taxes imposed on the Services, equipment, supplies, and other property provided under these Card T&Cs, other than any taxes related to RealPage or Wells Fargo’s income, and Merchant authorizes RealPage to increase the amount collected from Merchant to reflect any and all assessments or increases in the sales, use, occupational, property, lease, or other taxes imposed on such sale or lease of Services, tangible property, intellectual property, equipment, supplies, and other goods purchased provided that RealPage must pass through this third party charge with no markup.
- Section Headings.
The section headings of these Card T&Cs are for convenience only and do not define, limit, or describe the scope or intent of these Card T&Cs.
Merchant may not transfer or assign these Card T&Cs without the prior written consent of RealPage. Any transfer or assignment of these Card T&Cs by Merchant, by operation of law, merger, or otherwise, without RealPage’s prior written consent is null and void, and Merchant is fully responsible with respect to all Transactions submitted by the purported assignee/transferee, and for any and all related liabilities, Chargebacks, expenses, costs, fines, fees or penalties arising from such Transactions. No assignee for the benefit of creditors, custodian, receiver, trustee in bankruptcy, debtor in possession, sheriff or any other officer of a court, or other person charged with taking custody of Merchant’s assets or business, has any right to continue or to assume or to assign these Card T&Cs. Merchant agrees to provide RealPage with not less than thirty (30) days’ prior written notice of: any sale of all or substantially all of the assets of Merchant; or any person or entity becoming the beneficial owner, directly or indirectly, of securities representing more than fifty percent (50%) of the combined voting power of Merchant’s securities, or otherwise acquires voting control of the Merchant. Upon notice to Merchant, another Payment Brand member may be substituted for Wells Fargo under whose sponsorship these Card T&Cs is performed and for whom RealPage is acting as a contractor hereunder. Subject to Payment Brand Rules, RealPage may assign or transfer these Card T&Cs and its rights and obligations hereunder and may delegate its duties hereunder, in whole or in part, to any third party, whether in connection with a change in sponsorship, as set forth in the preceding sentence, or otherwise, without notice to or consent of Merchant. Merchant shall owe to any such assignee or to any successor to Wells Fargo designated by RealPage the same performance and obligations as are owed to Wells Fargo arising from the effective date of such assignment by RealPage.
Merchant and RealPage each agree to perform its obligations under these Card T&Cs and to conduct its business in compliance with all Applicable Law applicable to that Party. Merchant represents and warrants that statements made on its Application are true as of the date of these Card T&Cs. Merchant and RealPage each represents and warrants that its execution of and performance under these Card T&Cs: in no way breaches, contravenes, violates, or in any manner conflicts with any of its other legal obligations, including, without limitation, its corporate charter or similar document or any agreement between Merchant or RealPage, respectively, and any third party or any affiliated entity; has been duly authorized by all necessary action and does not require any consent or other action by or in respect of any third party; and that the person accepting these Card T&Cs on behalf of Merchant or RealPage is an Authorized Representative.
Should any provision of these Card T&Cs be determined to be invalid or unenforceable under any law, rule, or regulation, including any Payment Brand Rule, such determination will not affect the validity or enforceability of any other provision of these Card T&Cs.
No term or condition of these Card T&Cs may be waived except pursuant to a written waiver executed by the Party against whom such waiver is sought to be enforced.
- Entire Agreement.
The Payment Brand Rules, Application, Terms and Conditions, taxpayer identification and certification documentation, and all schedules, supplements, and attachments are made a part of these Card T&Cs for all purposes. This Agreement, including all attachments and documents referenced herein, represents the entire understanding between Merchant and RealPage with respect to the matters contained herein and supersedes any prior agreements between the Parties. Merchant agrees that in entering into these Card T&Cs it has not relied on any statement of RealPage or Wells Fargo or their representatives. These Card T&Cs prevails over any conflicting terms of any agreement governing the Settlement Account.
Except as otherwise provided in these Card T&Cs, all notices will be given in writing and either hand delivered, faxed, mailed first class, postage prepaid, sent via electronic mail transmission, or sent via overnight courier (and will be deemed to be given when so delivered or mailed) to Merchant’s legal address set forth in the Application, to RealPage at: Attn: Legal Department, 2201 Lakeside Blvd, Richardson, Texas 75082, or to such other address as either Party may from time to time specify to the other Party in writing. Notices provided in writing on Merchant’s monthly statement(s) are sufficient for formal notice under the terms of this Section 17.
- Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial; Arbitration.
These Card T&Cs will be governed by and construed in accordance with the laws of the State of Texas without reference to conflict of law provisions. Any action, proceeding, arbitration hearing or mediation relating to or arising from these Card T&Cs will be brought, held, or otherwise occur in Dallas County, Dallas, Texas.
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM MAY BE RESOLVED BY BINDING ARBITRATION.
WITH BINDING ARBITRATION MERCHANT ACKNOWLEDGES AND AGREES THAT: (a) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM ALLEGED AGAINST REALPAGE, WELLS FARGO, OR RELATED THIRD PARTIES;
(b) MERCHANT IS GIVING UP ITS RIGHT TO HAVE A COURT RESOLVE ANY CLAIM ALLEGED AGAINST REALPAGE, WELLS FARGO OR RELATED THIRD PARTIES; AND
(c) MERCHANT IS GIVING UP ITS RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND TO PARTICIPATE AS A WELLS FARGO OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION FILED AGAINST REALPAGE, WELLS FARGO, AND RELATED THIRD PARTIES.
IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, MERCHANT AND REALPAGE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY AND TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS). BUT, EXCEPT AS OTHERWISE PROVIDED ABOVE, THOSE RIGHTS, INCLUDING ANY RIGHT TO A JURY TRIAL, ARE WAIVED AND ALL CLAIMS WILL NOW BE RESOLVED THROUGH ARBITRATION.
Any claim, dispute, or controversy (“Claim”) by either Merchant, RealPage or Wells Fargo against the other, or against the officers, directors, employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents, successors, or assigns of the other, arising from or relating in any way to these Card T&Cs or to the relationship formed between the Parties as a result of these Card T&Cs, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”). All Claims are subject to arbitration, no matter what theory they are based on. This includes Claims based on contract, tort (including intentional tort), fraud, agency, Merchant, RealPage’s or Wells Fargo’s negligence, statutory or regulatory provisions, or any other source of law. Claims and remedies sought as part of a class action, private attorney general, or other representative action are subject to arbitration on an individual (non-class, non-representative) basis only, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The Parties will agree on another arbitration forum if the AAA ceases operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and RealPage and/or Wells Fargo. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis. The prohibition against class action contained in this Section shall be non-severable from the remainder of this Section. If either Party prevails in the arbitration of any Claim against the other, the non-prevailing Party will reimburse the prevailing Party for any fees it paid to the AAA in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing Party in connection with such arbitration. Any decision rendered in such arbitration proceedings will be final and binding on the Parties, and judgment may be entered in a court of competent jurisdiction. Rules and forms of the AAA may be obtained and Claims may be filed at any AAA office, www.adr.org, or 335 Madison Avenue, New York, NY 10017, telephone 1-800-778-7879. Any arbitration hearing at which Merchant appears will take place at a location within Dallas County, Dallas, Texas. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in these Card T&Cs shall be construed to prevent any Party’s use of (or advancement of any Claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure, or any other prejudgment or provisional remedy relating to any collateral, security, or other property interests for contractual debts now or hereafter owned by either Party to the other.
- Force Majeure.
No Party will be liable for delays in processing or other nonperformance caused by such events as fires, third party telecommunications failures, or utility failures, power failures, equipment failures outside of a Party’s control, riots, war, terrorist attack, acts of God, or other causes over which the respective Party has no reasonable control, except that nothing in this Section will affect or excuse Merchant’s liabilities and obligations for Chargebacks, Refunds, or unfulfilled goods and services.
Except as otherwise set forth in these Card T&Cs, these Card T&Cs may be amended at any time by RealPage upon thirty (30) days’ notice to Merchant. Notwithstanding the foregoing, in the event the terms of these Card T&Cs must be amended pursuant to a change required by the Payment Brand Rules or any third party with jurisdiction over the matters described herein, such amendment will be effective immediately. Merchant’s electronic signature or continued submission of Transactions to RealPage following such notice will be deemed to be Merchant’s acceptance of such amendment.
- Merchant Taxpayer Certification and RealPage Reporting Obligations.
Pursuant to 26 USC 6050W, RealPage is a “payment settlement entity”, obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, in conjunction with the execution of these Card T&Cs, Merchant will provide RealPage with the appropriate taxpayer certification documentation, via Internal Revenue Service (IRS) Form W-9 (or the appropriate versions of Form W-8, if applicable). Merchant will promptly notify RealPage if there are any changes in this information. RealPage may deduct withholding taxes, if any, from proceeds payable to Merchant or any entity that is a Party to this agreement where required under Applicable Law. RealPage may, in accordance with Applicable Law and from time to time during the term of these Card T&Cs, request Merchant to recertify its taxpayer certification hereunder. Furthermore, Merchant is responsible for any penalties related to the reporting obligations of RealPage hereunder to the extent such penalties accrue based on the actions or inactions of Merchant despite reasonable notice from RealPage.
The following Sections survive termination of these Card T&Cs: 4B, 4C, 4D, 4E, 4F, 4G, 5, 6, 7, 9, post-termination obligations of the Parties, 11, 12, 13B, 14, 15, 16, 17 and 19.
Anticipated Risks. Include, but are not limited to, risks associated with a material breach of the Master Agreement, including the Payment Terms and Conditions and these Card T&Cs by Merchant; providing Services to Merchant in light of Merchant’s financial condition or payment history with creditors: Chargebacks; Refunds; unshipped goods or unfulfilled services; fines, fees, or penalties assessed or reasonably anticipated to be assessed against RealPage or Wells Fargo by any of the Payment Brands arising out of or relating to Merchant’s: acceptance of Payment Cards; acts or omissions; or failure to comply with the Payment Brand Rules or Security Standards; objections or concerns expressed by a Payment Brand that makes it unduly burdensome, impractical or risky to continue processing Merchant’s Transactions; and all anticipated trailing activity arising from Merchant’s Transactions after termination of this of the Master Agreement or of the Payments Service Order Form.
Applicable Law. All local, state, federal laws and regulations, tax procedures and any governmental directives or demands, administrative or judicial process, orders, injunctions or judgments applicable to Merchant, Wells Fargo or RealPage with respect to Merchant’s business operations and the Payment Card Services provided under these Card T&Cs, including without limitation, applicable data security and privacy laws.
Application. A statement of Merchant’s financial condition, a description of the characteristics of Merchant’s business or organization, and related information Merchant or its Authorized Representative(s), has previously or concurrently submitted to RealPage, including credit, financial, and other business related information, to induce RealPage to enter into these Card T&Cs with Merchant and that has induced RealPage to process Merchant’s Transactions under the terms and conditions herein.
Authorized Representative. An owner, partner, officer, or other agent of the Merchant that is duly authorized to enter into agreements on behalf of Merchant and to legally bind Merchant to such agreements.
Business Day. Monday through Friday excluding days when banks in the State of Texas are closed.
Card Organization: means the Visa, Inc. MasterCard International, Inc., American Express Company and Discover Financial Services, LLC.
Chargeback. A reversal of a Transaction that Merchant previously presented to RealPage pursuant to Payment Brand Rules.
Confidential Information. Confidential Information. means (A) the financial terms of these Card T&Cs; (B) any information or data disclosed by the Discloser which: (I) if in tangible form, is marked clearly as proprietary or confidential or (II) if oral, is identified as proprietary, confidential, or private on disclosure; (C) any other Transaction or business information, whether tangible or oral, which upon receipt by Recipient should reasonably be understood to be confidential; provided, however, that such information or data is provided under or in contemplation of these Card T&Cs; and (D) any cardholder data or customer information (including but not limited to nonpublic personally identifiable information), and (E) any information relating to an actual, or suspected, Data Compromise Event.
Conveyed Transaction. Any Transaction conveyed to a Third Party Brand for settlement by such Third Party Brand directly to Merchant.
Customer. The person or entity to whom a Payment Instrument is issued or who is otherwise authorized to use a Payment Instrument.
Data Compromise Event. An occurrence that results, or could result, directly or indirectly, in the unauthorized access to or disclosure of Transaction Data or Payment Instrument Information.
Discloser shall have the meaning set forth in Section 12(D)1(iii).
Effective Date. The day these Card T&Cs is accepted and agreed to by RealPage, as set forth in Section 10A.
Merchant. The legal entity identified in the Application and whose name and signature appears on these Card T&Cs.
Payment Application. A third party application used by merchant that is involved in the authorization or settlement of Transaction Data.
Payment Brand. ny payment method provider, whose payment method is accepted by RealPage for processing, including: the Card Organizations, and any other credit and debit card providers, debit network providers, gift card, and other stored value and loyalty program providers supported by Wells Fargo and RealPage under these Card T&Cs. Payment Brand also includes the Payment Card Industry Security Standards Council and the Electronic Payment Association (frequently referred to as “NACHA”).
Payment Brand Rules. All bylaws, rules, programs, regulations, specifications, and manuals, as they exist from time to time, of the Payment Brands.
Payment Card or Payment Instrument. An account, or evidence of an account, authorized and established between a Customer and a Payment Brand, or representatives or members of a Payment Brand that Merchant accepts from Customers as payment for a good or service.
Payment Instruments. Include, credit and debit cards, loyalty cards, authorized account or access numbers, paper certificates, and credit accounts.
Payment Card Information or Payment Instrument Information. Information related to a Customer or the Customer’s Payment Card that is obtained by Merchant from the Customer’s Payment Card or from the Customer in connection with his or her use of a Payment Card. Such information may include, but is not limited to the Payment Card account number and expiration date; the Customer’s name or date of birth; PIN data, security code data (such as CVV2 and CVC2); and any data read, scanned, imprinted, or otherwise obtained from the Payment Instrument, whether printed thereon, or magnetically, electronically, or otherwise stored thereon. For the avoidance of doubt, the data elements that constitute Payment Card Information are treated according to their corresponding meanings as “cardholder data” and “sensitive authentication data” as such terms are used in the then current PCI DSS.
Permitted Party shall have the meaning set forth in Section 12(D)1(ii).
Recipient shall have the meaning set forth in Section 12(D)1.
Refund. Any refund or credit issued for any reason, including, without limitation, for a return of merchandise or cancellation of services and any adjustment of a Transaction.
Refund Policy. A written policy with regard to Refunds.
Retrieval Request. A request for information by a Customer or Payment Brand relating to a claim or complaint concerning a Transaction.
Security Standards. All rules, regulations, standards, or guidelines adopted or required by the Payment Brands or the Payment Card Industry Security Standards Council relating to privacy, data security, and the safeguarding, disclosure, and handling of Payment Instrument Information, including, without limitation, the Payment Card Industry Data Security Standards (“PCI DSS”), Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program (“DISC”), American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), MasterCard’s POS Terminal Security program, and the Payment Card Industry PIN Transmission Security program (PCI PTS), in each case as they may be amended from time to time.
Services. All Transaction processing services provided by RealPage through the RealPage Payments platform, including, without limitation, authorization, conveyance, settlement, and funding of all Transactions, as provided for in these Card T&Cs or any subsequent agreement between the Parties. The Services may also include the provision of or access to monthly statements or reporting tools, as well as assistance with Merchant’s Chargebacks.
Service Provider. Any Party that processes, stores, receives, transmits, or has access to Payment Instrument Information on Merchant’s behalf, including, without limitation, its agents, business partners, contractors, and subcontractors.
Settled Transaction. A Transaction conducted between a Customer and Merchant utilizing a Payment Instrument in which consideration is exchanged between the Customer and Merchant for the purchase of a good or service or the Refund of such purchase and the value for such Transaction is settled by the Payment Brand through RealPage to the Merchant.
Transaction. A transaction conducted between a Customer and Merchant utilizing a Payment Brand in payment to the Merchant for goods or services provided by the Merchant.
Transaction Data. The written or electronic record of a Transaction, including, without limitation, an authorization code or settlement record, which is submitted to RealPage.
Transaction Receipt. An electronic or paper record of a Transaction generated upon completion of a sale or Refund, which is presented to the Customer.
Wells Fargo. Wells Fargo Bank, NA or other entity providing sponsorship to RealPage as required by all applicable Payment Brands. Wells Fargo is a principal Party to these Card T&Cs and Merchant’s acceptance of Payment Brand products is extended by the Wells Fargo.