PAYMENT GATEWAY SERVICES TERMS
The terms of these Payment Gateway Services Terms (“Payment Gateway Terms” or “Terms”) will apply to Merchant’s use of and the provision by Five Stars Loyalty, Inc. (“Fivestars”) of Payment Gateway Services pursuant to one or more Order Forms placed by Merchant. Any terms capitalized and not defined herein will have the meanings ascribed to them in the applicable Order Form or Merchant Agreement. These Terms may be updated by Fivestars from time to time by posting the Updated Terms on this site.
1. Payment Gateway Services. As used in these Terms, “Payment Gateway Services” means the payment gateway services offered by Fivestars that enable Fivestars to accept payment information regarding credit cards, debit cards, and other payment methods (“Payment Information”) for goods or services sold by Merchant and to forward such Payment Information to Merchant’s pre-existing merchant credit and debit card processing account (“Merchant Processing Account”) provided by an institution other than Fivestars (“Merchant Services Provider”), and such other services as are necessary or supplemental to the use of such Payment Gateway Services, including return of any authorization from the Merchant Services Provider. Fivestars will make the Payment Gateway Services available through use of the Fivestars Payment Terminal, together with a web-based service interface application that will be provided, defined and determined by Fivestars.
As used in these Terms, “Rules” means the written rules, regulations and procedures issued by the Card Networks, including, without limitation, the Payment Card Industry Data Security Standard (“PCI DSS”), the Visa Customer Information Security Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Card Networks or other relevant payment networks; and, the rules, regulations, and procedures of any processors, banks, or other institutions or organizations which govern or affect Merchant’s use of the Payment Gateway Services. Merchant may review the Visa, MasterCard, and American Express websites and may contact Discover for a copy of each of their respective rules and regulations. As of the date of these Terms, the websites are: (Visa) https://usa.visa.com/support/small-business/regulations-fees.html; (MasterCard) https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html; (American Express) https://icm.aexp-static.com/Internet/NGMS/US_en/Images/MerchantPolicyOptBlue.pdf; and (Discover) https://servicecenter.discoverglobalnetwork.com/onlineform/en-us/contact-us.
2. Responsibilities of Fivestars. Fivestars shall use reasonable efforts to provide the Payment Gateway Services in an uninterrupted, continuous fashion in accordance with these Terms. Customer understands and agrees that Fivestars’ systems may be periodically off line or otherwise inoperable in order for Fivestars to perform routine, scheduled maintenance, install or test software, or for other commercially reasonable business purposes and that during such time Payment Gateway Services may not be provided. Customer further understands and agrees that from time to time Fivestars’ systems may be off line or otherwise inoperable as a result of the failure of equipment or services provided to Fivestars by third parties (for example, public or private telecommunications services or internet nodes or facilities, overall Internet congestion or unavailability of generic Internet services, such as DNS services), or other causes outside of Fivestars’ reasonable control. Fivestars may from time to time, in its sole discretion, modify the manner in which it provides Payment Gateway Services, and modify its software and systems, all of which may result in a change in the manner in which Fivestars provides the Payment Gateway Services. Merchant acknowledges that the Payment Gateway Services do not include, and Fivestars is not providing, any information relating to any credit report. Fivestars is not responsible for the operation of Merchant’s internal systems or the actions or inaction of any third party or entity, including any bank, processor (including Merchant Services Provider), financial institution or network, telecommunications carrier, third party software developer or ISP.
3. Responsibilities of Merchant. Merchant agrees to submit through the Payment Gateway Services only transactions that are properly authorized by its customers. Merchant shall not process transactions on behalf of any other entity or individual. Merchant shall not submit transactions for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities; the sale of marijuana or marijuana products; the sale of alcohol without proper ID verification; the sale of sex or sex related services; human trafficking; or, the sale of firearms without proper ID verification. In order to provide an environment for the proper operation of the Payment Gateway Services and Payment Terminal, Merchant will be responsible for the following:
a. Ensure a low latency (sub 30ms ping) and high bandwidth (>10mbps) internet connection exists at Location
b. Ensure a high quality wifi connection (-50 rssi) to the Fivestars hardware or an ethernet wired connection
Confidentiality of Data. Merchant is solely responsible for ensuring the secure transmission of any data that Merchant transmits to Fivestars (“Merchant Transmitted Information”), and Fivestars will have no liability prior to its receipt (provided that Fivestars will use Merchant Transmitted Information only for purposes of, and as permitted under, this Agreement). Merchant is solely responsible for implementing security measures, procedures, and standards or any other best practice available, to protect the confidentiality of Merchant Transmitted Information prior to its transmission to Fivestars. Merchant is solely responsible for protecting the confidentiality of any information stored on Merchant’s servers.
Physical Security of Payment Terminal. Merchant is responsible for ensuring the physical security of the Payment Terminal and providing daily inspections of the Payment Terminal to ensure no physical tampering or other violations to the device security have occurred.
Compliance. Merchant agrees to use the Payment Gateway Services, including the Payment Terminal, in the manner instructed by Fivestars, in compliance with the Rules and applicable law, and solely for the purposes set forth in these Terms. Without limiting Merchant’s requirement to comply with the Rules, Merchant agrees to comply with all applicable data privacy and security requirements under PCI DSS with regard to Merchant’s collection, use, access, and storage of customer data, financial account data, and certain payment card non-public personal information in connection with the Payment Gateway Services, including but not limited to undertaking required annual or quarterly self-assessments and web infrastructure scans, as appropriate. Additionally, Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted, or determined regarding the confidentiality, use, and disclosure of consumer data and financial account data. Merchant agrees to indemnify and reimburse Fivestars for any loss, liability, assessment, or fine incurred due to Merchant’s breach of this provision.
Connection to Merchant Processing Account. Merchant will obtain proper credentials and authorizations (collectively known as the “VAR Sheet”) from the Merchant Services Provider to permit the Fivestars Gateway Service to connect to the pre-existing Merchant Processing Account.
4. Use of Cardholder Information. As used in these Terms, “Cardholder Information” means any information evidencing either (a) a cardholder’s personal data, including without limitation evidence of the cardholder’s credit or other type of card, or (b) transactions consummated with credit or other types of cards, including both electronic, written and other forms of data. Merchant gives Fivestars the right to store indefinitely Cardholder Information and transaction history for all transactions processed on behalf of Merchant. Merchant represents that it is the merchant of record for all transactions submitted for authorization through use of the Fivestars Gateway Services. Merchant will obtain permission from the Cardholder and will provide to Fivestars the right to (a) store Cardholder Information processed through the Fivestars Gateway Services (“Cards on File”), and (b) use Cards on File for future transactions by the cardholder either at Merchant or at other merchants that use Fivestars’ services.
5. Indemnity. Merchant shall indemnify and defend (at its sole expense) any third party claims, suits, actions, demands, threats, allegations or other legal proceedings brought against Fivestars and any of its directors, officers, employees, representatives and agents (together with Fivestars, each a “Fivestars Party”) and that arise out of (a) Merchant’s use of the Payment Gateway Services and Payment Terminal, or (b) Merchant’s breach of any of its obligations under these Terms. Merchant agrees to pay (i) any settlements entered into between Fivestars or Merchant and the third party claimant, and (ii) any judgment awarded to the third party claimant by a court of competent jurisdiction. Fivestars shall (x) provide Merchant with prompt written notice of any claim, (y) subject to Fivestars’ right to approve or reject controlling counsel, grant Merchant control of the defense and settlement of the claim, and (z) provide reasonable information and assistance to Merchant in the defense or settlement of the claim at Merchant’s expense.
6. Term and Termination. These Terms will commence on the Effective Date set forth on the Order Form. Except as otherwise stated on an Order Form, each of Merchant and Fivestars may terminate these Terms by providing at least thirty (30) calendar days written notice to the other party. In addition,
Fivestars may terminate these Terms or immediately cease providing the Payment Gateway Services, without notice, if (i) Merchant fails to pay any amount to Fivestars when due or otherwise violates these Terms, (ii) in Fivestars’ opinion, provision of Payment Gateway Services to Merchant may constitute a violation of the Rules or any applicable laws, (iii) Fivestars believes that Merchant has violated or is likely to violate the Rules or any applicable laws; or (iv) the Merchant Agreement between Merchant and Fivestars is terminated.
7. LIMITATIONS ON LIABILITY NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL FIVESTARS BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, IN CONNECTION WITH OR AS A RESULT OF THESE TERMS OR THE PROVISION OF THE GATEWAY SERVICES, OR ITS CONDUCT OR PERFORMANCE UNDER THESE TERMS, EVEN IF SUCH AMOUNTS ARE OR SHOULD HAVE BEEN REASONABLY FORESEEABLE TO FIVESTARS OR FIVESTARS IS OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOST PROFITS. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, FIVESTARS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE GATEWAY PAYMENT SERVICES AND FIVESTARS PAYMENT TERMINAL, OR OTHERWISE UNDER THESE TERMS. IN NO EVENT WILL THE AGGREGATE LIABILITY OF FIVESTARS UNDER OR IN CONNECTION WITH THESE TERMS EXCEED THE TOTAL PRICE PAID BY MERCHANT UNDER THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS.
8. Entire Agreement. These Terms, together with the Order Form and any additional schedules or terms referenced therein, including the Merchant Agreement, constitute the complete and final agreement between the parties with respect to its subject matter, and supersedes all prior discussions and writings between the parties with respect to such subject matter. No rights or remedies are conferred on any third parties by these terms and no waiver by Fivestars of these Terms shall be effective unless in writing. These Terms may be modified by Fivestars from time to time by posting the modified Terms (“Updated Terms”) on this Site with the specified effective date. The Updated Terms shall apply to all transactions made on or after the effective date of the Updated Terms.