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ACH Terms and Conditions

These terms and conditions apply to ACH services provided by Processing Partners LLC, DBA TCB Pay ("TCB") to the Merchant.

TCB provides electronic transaction processing services to organizations that receive payments from customers by paper checks or electronic automated clearing house ("ACH") transactions. With respect to ACH transactions, debit and credit transactions are submitted to the ACH Network in conjunction with ACH check processing origination and settlement services. Merchant represents that it is lawfully engaged in the business of selling goods and/or services to third parties from whom it will receive payment by ACH transactions and with whom it will initiate and process ACH transactions in the U.S. Federal Reserve Bank System, using TCB's services.

The Merchant and TCB agree as follows:
  • TCB agrees to provide to the Merchant the Services hereinafter defined.
  • Merchant agrees to pay to TCB all fees for such Services set forth in the application that Merchant signed and submitted to TCB.
  • Merchant agrees to use the Services in accordance with this Agreement.
  • This Agreement will become effective on the date TCB activates the account of the Merchant (the "Effective Date").

The following terms used in this Agreement shall have the meaning specified below:

ACH Transaction: An electronic payment transaction originated by Merchant and processed through the ACH Network in the Federal Reserve System.

Administrator: The Merchant's employee who has been designated as the Merchant's primary contact with TCB for the Services and has been appointed by the Merchant to manage the administration of Services access, including passwords, and communicate authorizations to TCB.

Agreement: These terms and conditions and the merchant application signed and submitted by the Merchant to TCB, including any documents referenced therein and amendments to the foregoing.

Confidential Information: Certain confidential and proprietary information of TCB and its providers, including without limitation information concerning the Services, Software programs and documentation used by TCB and its providers to provide the Services to Merchant, the know-how, technology, techniques, trade secrets, or business or marketing plans related thereto and passwords and other information or materials of a confidential and proprietary nature that TCB and its providers provide under this Agreement.

Customer: Merchant's customer who submits a payment to Merchant through a check or ACH transfer.

Entry: A transaction submitted by Merchant to TCB for processing by the Services and further defined in the NACHA Rules. NACHA Rules: The current rules, regulations and procedural guidelines published by the National Automated Clearing House Association ("NACH") and/or all regional payment alliances associated with NACHA.

Originating Depository Financial Institution: In an ACH Transaction, the financial institution which receives the Entry and transmits the Entry to its ACH operator for transmittal to a Receiving Depository Financial Institution for debit or credit to the Customer's account, as these terms are further defined in the NACHA Rules.

Services: The ACH processing services, and the related goods and services provided to Merchant under this Agreement.

Settlement Account: A commercial demand deposit bank account which the Merchant has established for TCB and its providers for access and use to settle financial payment transactions processed under this Agreement.

Software: Software programs and associated documentation and materials that TCB and its providers provide to Merchant for use with the Services.

Set-Up And Delivery Of Services

In conjunction with this Agreement, the Merchant has completed and submitted to TCB an initial written application and supporting documentation about the Merchant's business and financial status, for TCB's consideration in the account set-up and provision of the Services to the Merchant. Merchant acknowledges that TCB shall be entitled to rely upon the validity, accuracy and completeness of the information provided by Merchant in its application and supporting documentation to TCB, for TCB's use in performing its due diligence review of Merchant's status and financial standing and for determining:

  • if TCB approves Merchant's application
  • if TCB will provide all or any of the Services to Merchant under this Agreement; and,
  • the credit and account processing standards and limits that TCB will apply to the processing of Merchant's Entries.

After the initial acceptance and set-up of the Merchant for TCB's provision of the Services, TCB may request that the Merchant provide updated information and supporting documentation to TCB to confirm Merchant's current business and credit status, which Merchant shall apply best efforts to deliver to TCB within three (3) business days following receipt of TCB's written request. Any failure by the Merchant to provide the information and supporting documentation requested by TCB via the application or by other means within a timely manner shall be deemed to be a material breach of this Agreement by the Merchant.

When the Merchant's application has been approved by TCB and its account with TCB has been activated, TCB shall provide the Services selected by the Merchant in its application. Merchant shall utilize and access the Services in accordance with the terms of this Agreement and the practices and procedures established by TCB and its providers for the Services which have been communicated in writing to Merchant. As part of the Merchant set-up and boarding process, TCB will provide Merchant with an administrative and gateway username and password ("Password") to access the Services which are hosted on TCB's processing system. Merchant will designate an Administrator who shall be the individual vested with the authority to determine who will be authorized to use the Services; establish separate passwords for each user; and establish limits on each user's authority to access information and conduct transactions. The merchant is responsible for the actions of its Administrator, the authority the Administrator gives others to act on the Merchant's behalf and the actions of the persons designated by the Administrator to use the Services. Merchant shall take reasonable security procedures and practices to safeguard the confidentiality of the passwords; limit access to its passwords solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating entries in the Services without proper authorization and supervision and adequate security controls.

TCB will provide Merchant Services for the Entry types indicated in the Merchant set-up and boarding documentation which the Merchant wishes to utilize. TCB reserves the right to withdraw the Services provided generally to its customers including Merchant for individual Entry types from general market availability and coverage under this Agreement upon ninety (90) days prior written notice to Merchant. To the extent reasonably possible, TCB will first attempt to process an Entry in the Services as an ACH Transaction provided that the Entry fully qualifies to be processed as an ACH Transaction according to applicable NACHA Rules and TCB has received all the required information from the Image or paper check necessary to process the transaction as an ACH Transaction.

Prior to submitting an Entry to TCB for processing, the Merchant shall secure all authorizations and approvals from its Customer and deliver any notifications pertaining to that Entry which are required by the NACHA Rules and/or applicable laws and regulations. Merchant shall be responsible for the accuracy and propriety of all Entries submitted to TCB for processing. If the Merchant utilizes a scanner to create Images which are delivered to TCB for processing, the Merchant shall be solely responsible for ensuring the accuracy and completeness of the Image transmitted to TCB for processing.

Merchant acknowledges that TCB has specific processing deadlines imposed by its ODFI and the ACH operator for ACH Transactions. Files received by the deadline will be transmitted that day to the Federal Reserve Bank for settlement on the effective entry day. Files received after the deadline will be processed the next Banking Day as defined in the NACHA Rules.

In the event of any conflicts in the instructions received by TCB regarding the Merchant or any Entries relating to them, TCB may at its option and with or without notice, hold or interplead, comply with the legal process or other order, or otherwise limit access by Merchant or by TCB to the funds, Entries or proceeds thereof.

TCB may make available to Merchant end-user training to assist Merchant in understanding and using the Services and the TCB processing system. The training product(s) are provided to the Merchant for its sole internal use. In the case of proprietary courseware, TCB and its licensors reserve all ownership rights in and to the courseware materials. If any training classes are performed by TCB at the Merchant's site, the Merchant shall pay the applicable onsite training class fee quoted by TCB and the reimbursable out-of-pocket travel expenses of the TCB trainer who travels to and from the Merchant's location to deliver the training session. For online classes and learning modules provided by TCB, the Merchant shall pay the training class fee specified at the time of online class registration. If TCB offers a license which permits the Merchant to perform its own internal training classes for the personnel of the Merchant and its Customers, the Merchant shall pay the annual license fee quoted by TCB for the use of the modules licensed by the Merchant for this purpose.

Merchants may be required to maintain a reserve ("Settlement Reserve") of an amount to be determined by TCB. Merchant hereby acknowledges and agrees that any Settlement Reserve will be deposited in a TCB account for exclusive use by TCB for purposes of offsetting any Merchant obligations under this Agreement. If the Merchant's Settlement Reserve falls below the required amount, the Merchant authorizes TCB to immediately replenish the Settlement Reserve to an amount to be determined by TCB via an ACH debit to the Settlement Account or by a direct deposit to the Settlement Reserve. No interest will be paid on the Settlement Reserve. Merchant grants TCB a security interest in any Settlement Reserve so that TCB may enforce any obligation owed by Merchant under this Agreement without notice or demand to Merchant. Merchant's obligation to maintain a Settlement Reserve shall survive the termination of this Agreement.

Recoupment And Set-Off

Merchant shall immediately reimburse TCB for any returns or shortfalls that occur in Merchant's Settlement Account. TCB reserves the right in its sole discretion to debit the Settlement Account for any amounts due under this Agreement or delay the availability of funds for deposit, without prior written notice to Merchant, if TCB deems itself at financial or relative risk for all Services performed under this Agreement. Merchant hereby acknowledges and agrees that TCB shall have a right of setoff against:

  • any amounts TCB is obligated to deposit into the Merchant's account, and
  • any other amounts TCB may owe Merchant under this Agreement.
Pricing And Payment

Merchant shall pay TCB the fees, penalties, and charges for the Products and/or Services as set forth herein, shown in the current standard published fee schedule for merchants located in the United States which has been provided to Merchant in the application for the Services, as set forth on TCB's website, or as disclosed to Merchant in any other documents or materials by TCB. All amounts are stated and due and payable in U.S. dollars and are exclusive of any taxes or other charges which may be imposed by a government entity, except for taxes due on TCB's income. For Product and Services fees invoiced by TCB directly to the Merchant, TCB reserves the right to require the Merchant's payment of these fees due under this Agreement via an ACH debit made by TCB against the Merchant's Settlement Account or other banking account. Merchant shall provide TCB with all necessary bank account, routing, and related information. TCB will deduct automatically all such fees on or about the first business day of each month for the preceding month's services. Interest shall accrue at the lesser of three (3) percent per month or the maximum amount permitted by applicable law ("Late Fee") for any fees that remain unpaid beyond any due dates. In the event of a dispute made in good faith as to the amount of fees, the Merchant agrees to remit payment on any undisputed amount(s); and the Late Fee shall not accrue as to any disputed amounts unless not paid within thirty (30) calendar days after said dispute has been resolved by both parties. Merchant shall have sixty (60) days from the payment by Merchant of any fees due under this Agreement to notify TCB of any errors in payment of fee by Merchant. If the Merchant does not notify TCB within the sixty (60) day period, the Merchant shall be deemed to have accepted without question such fee payment and may not in the future contest the amount the Merchant paid or seek reimbursement for any discrepancies. Upon receipt of notice, TCB shall have thirty (30) days to correct any errors.

TCB may increase fees payable by Merchant under this Agreement by giving Merchant a thirty (30) day advance notice.

Nacha Rules And Tcb Guidelines

Each party shall comply with the current NACHA Rules which apply to ACH Transactions processed under this Agreement. In addition, TCB may publish to Merchant and other merchants its own standard operating and implementation guidelines for the Services with respect to specific NACHA Rules which will govern and apply to this Agreement as if set forth herein.

Confidential Information And Security Procedures:

As a condition to the receipt of the Confidential Information from TCB, the Merchant shall:

  • not disclose in any manner, directly or indirectly, to any third party any portion of Confidential Information
  • not use the Confidential Information in any fashion except to perform its obligations hereunder or with the TCB's express prior written consent
  • disclose Confidential Information, in whole or in part, only to its employees and agents who need to have access thereto for the Merchant's internal business purposes
  • take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and,
  • take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event apply less than a reasonable standard of care to prevent disclosure.

Merchant shall comply with the security procedures described in this Agreement and in any TCB policies and procedures communicated in writing to a Merchant. Merchant acknowledges that the purpose of these security procedures is for verification of the authenticity of an Entry and not to detect an error in the transmission or content of an Entry. No security procedure for the detection of any such error has been agreed upon between TCB and Merchant. Merchant is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions.

Merchant understands that the password and Services access and use instructions provided hereunder are confidential and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any third party whatsoever, whether such disclosure of use are on account of Merchant's negligence or deliberate acts. Merchant acknowledges that no person from TCB will ever ask for any password and that TCB employees do not need and should not ask for Merchant's password.

Merchant shall change its password periodically and whenever anyone who has had access to a password is no longer employed or authorized by Merchant to use the Services. TCB may require the Merchant to change its password at any time. TCB may deny access to the Services without prior notice if it is unable to confirm to its satisfaction any person's authority to access the Services or if TCB believes such action is necessary for security reasons.

Merchant acknowledges that the Services and Software provided by TCB under this Agreement incorporate trade secrets of TCB and its providers and licensors, and as such is protected by civil and criminal law. Merchant shall notify TCB immediately of the unauthorized possession, use or knowledge of any item supplied under this Agreement by any person or organization not authorized by this Agreement to have such possession, use or knowledge. TCB shall have, in addition to any other remedies available to it at law or equity, the right to seek injunctive relief enjoining any wrongful use or possession of the trade secrets contained in the Services or Software by any party. Merchant acknowledges that irreparable harm will occur to TCB in the event of such wrongful use or possession of the trade secrets contained in the Services or Software and that other remedies are inadequate.

Data Privacy And Security By Provider

In accordance with data privacy laws and regulations applicable to this Agreement, which may include but not be limited to the Gramm- Leach-Bliley Act ("GLBA") and the Health Insurance Portability and Accountability Act ("HIPAA"), TCB shall not disclose or permit access to or use of the non-public personal information of Merchant or its Customers made available by Merchant to TCB for any purposes other than those specifically required to fulfill TCB's contractual obligations with Merchant hereunder. In connection with providing services to the Merchant, TCB shall take all commercially reasonable steps to ensure the privacy and security of the information of the Merchant and its Customers in TCB's possession and protect against anticipated threats and hazards to the security of such information.


TCB warrants to Merchant that its Services will be performed in a professional and timely manner consistent with ACH transaction processing industry standards and per the NACHA Rules and applicable laws and regulations and any written TCB policies and procedures communicated by TCB to Merchant. If the Merchant discovers an error in the Services or Software which has been caused by TCB, the Merchant shall immediately notify TCB of the existence and details of the error. TCB shall apply commercially reasonable efforts to correct the error within a reasonable time after TCB's receipt of notification of the error.


TCB does not guarantee the completeness or accuracy of the information provided from a third-party database. TCB shall have no liability to Merchant for any invalid Customer information provided by Merchant or Entries returned unpaid to Merchant. Merchant understands that certain Services are not provided by TCB, but by TCB's vendors, and that TCB shall have no liability to Merchant for any Service provided by any of its vendors or third party.

Merchant warrants that:

  • All Entries submitted to TCB for processing will comply with applicable laws and regulations and the NACHA Rules pertaining to the Entries
  • Merchant will comply with all laws, regulations, and the NACHA Rules applicable to Merchant's activities covered by this Agreement
  • All information provided by Merchant initially in its application and supporting documentation and subsequently in all updates to its application and supporting documentation provided to TCB is valid, complete, accurate and up to date
  • The individual signing and submitting this Agreement, the application for purchase of the Services from TCB, and all future updates to the application and supporting documentation has the legal authority to make and bind Merchant to the agreements, warranties and commitments stated in this Agreement and the submitted application on Merchant's behalf.
  • It is TCB's corporate policy not to knowingly provide Services for any person or organization whose use of the Services involves or pertains to any activity which is illegal under U.S. law or involves an activity or business with which TCB declines to accept and conduct business generally ("Excluded Activity or Activities"). Merchant warrants that it will not conduct any Excluded Activities, which include but are not limited to the following:
List of primary PTOB products/services

TCB may publish to its customers from time to time a more detailed and comprehensive list of businesses and activities which TCB includes within the scope of Excluded Activities. TCB reserves the right to reject any proposed Customer account or to refuse to process a transaction for a Customer that TCB deems, in its sole discretion, may use the Processing Services in conjunction with any Excluded Activity. If TCB discovers after accepting a Customer account that the Customer is utilizing the Processing Services in conjunction with an Excluded Activity, TCB may immediately terminate its provision of Processing Services to that Customer upon written notice to the Customer.


TCB shall indemnify, defend, and hold Merchant harmless from and against all claims, actions, losses and expenses, including reasonable attorney's fees and legal costs, incurred by Merchant arising out of a third-party claim that the Services or Software owned and provided by TCB under this Agreement infringe the valid intellectual property rights of the third party, provided that TCB is promptly notified by Merchant of its receipt of notice of such claim, is given control of the defence or settlement of such claim, and is given reasonable assistance requested by TCB concerning such claim. TCB shall not, however, indemnify, defend, and hold harmless or otherwise be liable if the claim, action, or lawsuit is:

  • asserted by an affiliated company of the Merchant.
  • results from the use of Services in breach of this Agreement or modification of the Services by Merchant or its agents; or,
  • is a claim, action, or lawsuit by an independent third party caused by a product for which TCB is not responsible.

Merchant shall indemnify, defend, and hold TCB, and the ODFI harmless from and against all claims, actions, losses, and expenses, including reasonable attorney's fees and legal costs, incurred by TCB, and/or the ODFI arising out of:

  • Merchant's and its subcontractors' and agents' breach of this Agreement, the NACHA Rules or applicable laws and regulations
  • the return of an Entry due to incorrect or incomplete data or information provided by the Merchant in the submission of the Entry to TCB, a closed Customer account, or insufficient funds in the Customer account.
  • fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Entries by Merchant, its subcontractors, employees, or agents or a third party who has gained access to the Services using Merchant's password
  • the negligence of Merchant and that of its subcontractors, agents, and employees; and,
  • any representation or warranty made by Merchant or any subcontractor, employee, or agent of Merchant to any third person other than as specifically authorized by this Agreement.
Limitations Of Liability

In no event shall tcb, or the odfi be liable to the merchant or any other party for any consequential, indirect, special, incidental, reliance, or exemplary damages arising out of or relating to this agreement or the services, whether foreseeable or unforeseeable, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including, but not limited to, damages for loss of data, goodwill, profits, investments, use of money, or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets; or labor claims), even if such party has been advised of the possibility of such damages. tcb's aggregate, cumulative liability to the merchant for all claims of actual direct damages relating to the services, this agreement, or the relationship between tcb and merchant, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees paid by the merchant to tcb for services delivered under this agreement during the three (3) month period preceding the origination of the claim giving rise to liability.

Term And Termination

Term: The initial term of this Agreement shall be set forth as month to month; upon expiration of the initial term, this Agreement shall automatically renew for an additional thirty (30) days, unless either party gives written notice of its election not to renew this Agreement to the other party no later than sixty (60) calendar days prior to the end of the current term. Notwithstanding any other provisions in this Agreement, TCB may cease providing the Services without notice in the event

  • There is a data security breach or other event that involves a high level of potential exposure to damages for TCB due to breach of this Agreement by Merchant that TCB believes in its reasonable judgment justifies this Agreement to be terminated immediately; or,
  • NACHA, a bank or a third party with control over TCB orders TCB to cease providing the Services, or its providers cease providing services in support of the Services.
Termination For Cause
Termination Due to Material Breach

This Agreement may be terminated by either party for cause upon giving the other party written notice of the breach of this Agreement committed by the other party and giving the other party a reasonable time to cure the breach. For this Agreement, a reasonable time to cure the breach specified in the written notice shall be deemed to be five (5) business days from receipt of the written notice.

Notwithstanding the foregoing, in the event either party materially breaches any provision of this Agreement by fraud, act of intent to defraud, failure to notify the other party of a material change in the party's financial structure or a material change in the information originally provided to induce the other party to enter into the Agreement, the non-breaching party may immediately terminate this Agreement in writing without giving the breaching party an opportunity to cure the breach with prior written notice.

Termination Due To Changed Circumstances

TCB reserves the right to terminate this Agreement in whole or in part at any time due to the occurrence of any of the following changed circumstances:

  • Merchant ceases the operation of a substantial part of its business, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights, any of which in TCB's reasonable judgment impairs the ability of Merchant to perform its responsibilities under this Agreement
  • In TCB's sole judgment, there is a deterioration or other materially negative change in the Merchant's financial status or structure which increases the financial risk being assumed by TCB in processing the Merchant's Entries
  • There is a change in the laws, regulations or NACHA Rules that are applicable to this Agreement and TCB's provision of any of the Services which restricts or prohibits TCB from providing the affected Services to Merchant or significantly increases TCB's costs in providing the affected Services to its customers generally; or,
  • Merchant's business or all or a substantial part of its assets is acquired by a competitor of TCB or its providers,

In these instances, TCB will provide written notice of the termination on this basis to the Merchant, which shall become effective upon receipt by the Merchant.

The provisions of this Agreement and any other provisions of the other Sections of this Agreement which by their nature should reasonably be expected to continue to apply after termination of this Agreement shall survive the termination of this Agreement.

General Provisions

Governing Law; Waiver of Jury Trial; Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Wyoming without reference to conflict of law provisions. Any action, proceeding, arbitration or mediation relating to or arising from this Agreement must be brought, held, or otherwise occur in the federal judicial district that includes Wyoming. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ALL DISPUTES MUST BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING AGAINST TCB. Any claim, dispute, or controversy ("Claim") by either Merchant or TCB against the other, or against the employees, agents, parents, subsidiaries, affiliates, beneficiaries, agents or assigns of the other, arising from or relating in any way to this Agreement or to our relationship, 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, under its Commercial Arbitration Rules in effect at the time the Claim is filed, except as otherwise provided below. All Claims are subject to arbitration, no matter what theory they are based on or what remedy they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources 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, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. The arbitration will be conducted before a single arbitrator and will be limited solely to the Claim between Merchant and TCB. 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. 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 American Arbitration Association 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. Any arbitration hearing will take place at a location within the federal judicial district that includes Wyoming. This arbitration agreement applies to all Claims now in existence or that may arise in the future. Nothing in this Agreement shall be construed to prevent any party's use of (or advancement of any Claims, defences, 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 owed by either party to the other. However, the parties hereto may have recourse to courts of justice to seek injunctive or seizure orders only; the issuance of such orders by a court of justice shall not give competence to the court to hear the matter, which shall remain subject to arbitration as provided for hereunder. IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, THE MERCHANT AND TCB MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR A JURY, AND/OR 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 MUST NOW BE RESOLVED THROUGH ARBITRATION.


Any notice required or permitted hereunder shall be in writing and shall be sent by certified mail, return receipt requested, or by overnight express mail, with proof of delivery retained, and addressed to the respective parties at the address set forth below. Notice of breach or termination of this Agreement sent to TCB shall be directed to the same address, attention Legal Department


This Agreement shall not be assigned or delegated in whole or in part by Merchant to any other party without the prior written consent of TCB, which shall not be unreasonably withheld. TCB may assign this Agreement in its sole discretion without the written consent of the Merchant.

Legal Fees

In the event of any dispute arising out of or related to the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees, court costs and collection expenses in addition to any other recovery.

Force Majeure

If performance by TCB, the ODFI or any of their respective affiliates, of any Services or obligation under this Agreement is prevented, restricted, delayed or interfered with by reason of acts or events beyond their reasonable control, including but not limited to labor disputes and strikes; acts of nature, fire, floods, lightning, hurricanes, earthquakes or severe weather; utility or communications failures; failures of the ODFI, ACH or Federal Reserve Bank system network; computer-associated outages or delay in receiving electronic data; war, civil commotion or acts of terrorism; or the introduction of any new law, order or regulation which prohibits or restricts the performance of this Agreement, then TCB, the ODFI, and their respective affiliates affected by the occurrence of such acts or events shall be excused from their performance hereunder to the extent of the prevention, restriction, delay or interference.


This Agreement may be amended by TCB by posting a new version of this Agreement within the control panel or any place that the Merchant has access to view the revised Agreement. Any new version of this Agreement will immediately replace in its entirety this Agreement.

Entire Agreement

This Agreement contains the entire agreement between Merchant and TCB relating to the subject matter addressed herein, and supersedes any prior or contemporaneous understandings or agreements, whether oral or written, between the parties regarding the subject matter of this Agreement. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights, or remedies under or by reason of this Agreement.

Form And Delivery Of Signed Agreement

This Agreement is executed by the Merchant through its signature of its application and the Merchant shall deliver to TCB an original, facsimile, scanned or other electronic copy of the original signed application by physical or electronic means. For legal evidentiary purposes, a facsimile, scanned or other electronic copy of this Agreement bearing the signature of the authorized representative of the Merchant shall be accepted as an equivalent to a signed original copy of this Agreement.

Independent Contractors

The parties are and shall remain independent contractors and shall have no legal right or authority to make any binding commitments on behalf of the other party.

Third-Party Providers

TCB's third-party providers are providing some of the Services specified in this Agreement and, as a result, these third-party providers shall be intended third-party beneficiaries of this Agreement between TCB and Merchant. Each third-party services provider shall have the right to enforce directly against Merchant the terms of this Agreement which relate to the provision of the third-party provider's services to Merchant and the ownership and protection of the intellectual property rights of the third-party provider and its licensors in and to its services. Merchant acknowledges that the third-party providers shall have no responsibility or liability regarding TCB's obligations to Merchant under this Agreement.


If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect but shall be construed in a manner to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.


No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.


No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

Section Headings

The section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.