TERMS AND CONDITIONS FOR HOME CONSULTANT INITIATED CREDIT CARD TRANSACTIONS RECITALS

Transcription

1 TERMS AND CONDITIONS FOR HOME CONSULTANT INITIATED CREDIT CARD TRANSACTIONS RECITALS WHEREAS, Home Consultant, as an independent contractor of Longaberger, markets and solicits orders for Longaberger products; WHEREAS, Longaberger is a party to a Merchant Agreement with a credit card processing company ( Processor and such agreement being referred to as the Merchant Agreement ), pursuant to which Processor processes Sales Data (as hereinafter defined) submitted by Longaberger in connection with show orders placed by Longaberger customers with Home Consultants; WHEREAS, the parties desire and agree that Home Consultant shall be responsible for placing Credit Card transactions, obtaining Sales Data and submitting Sales Data to Longaberger in accordance with these terms and conditions such that Longaberger may submit Sales Data for orders obtained by Home Consultant to Processor for processing in compliance with Longaberger s obligations to Processor; and WHEREAS, capitalized terms in these terms and conditions have the definitions set forth in Section 11 or otherwise in the text of these terms and conditions. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows: 1. Submission of Sales Data. 1.1 Submission of Sales Data. Home Consultant will provide to Longaberger Sales Data generated from all of Credit Card transactions in a format requested by Longaberger such that Longaberger may submit such Sales Data for processing to Processor in accordance with Processor s formats and procedures. 1.2 Certain Credit Card Acceptance Policies. Each sale a Home Consultant makes involving a Credit Card must be evidenced by a single Sales Data record completed with the sale date and the sale amount, and other information as required by the Associations, by Longaberger or by Processor. Home Consultant may not impose any charge on the Credit Card transaction or otherwise require the Cardholder to pay any fees, including any fees payable by Home Consultant to Longaberger in connection with the Home Consultant Credit Card Program. Home Consultant may not set a dollar amount above or below which Home Consultant may refuse to honor otherwise valid Credit Cards. 1.3 Rules & Procedures. Home Consultant agrees to comply with all rules and procedures as Longaberger may from time to time prescribe for the creation, submission, or transmission of Sales Data. 1.4 Requirements for Sales Data. As to each Sales Data Home Consultant provides to Longaberger for submission for processing by Processor, Home Consultant represents, warrants, and covenants that: (1) The Sales Data represents payment or refund of payment, for the bona fide sale, services or both, which Home Consultant has provided in the ordinary course of its business, and the Sales Data is not submitted on behalf of a third party. (2) The Sales Data does not involve any element of credit for any purpose other than payment for a current transaction (including payment of a previously-dishonored check) and, the goods are being ordered from Longaberger as part of the current transaction. (3) The Sales Data is free from any alteration not authorized by the Cardholder. (4) Neither Home Consultant, nor its employees or agents, has advanced any cash to the Cardholder or to itself or to any of its representatives, agents or employees in connection with the Credit Card transaction, nor has Home Consultant accepted payment for effecting credits to a Cardholder s account. (5) The goods described in each Sales Data are the sole property of Longaberger and Home Consultant is authorized to sell them. Effective Page 1

2 (6) Home Consultant has made no representations or agreements for the issuance of refunds except as stated in Longaberger s return/cancellation policy. (7) Home Consultant has no knowledge or notice of information that would lead Home Consultant to believe that the enforceability or collectibility of the subject Sales Data is in any manner impaired, and the transaction is in compliance with all applicable laws, ordinances and regulations; and Home Consultant has originated the Sales Data in compliance with these terms and conditions. (8) The Credit Card sale is not part of an installment or a deferred payment plan. (9) Home Consultant shall transfer its Sales Data to Longaberger on the same business day that Home Consultant closes the home show through which the Credit Card transaction Sales Data was created. 2 Refunds, Returns and Adjustments.: If Home Consultant allows a return of merchandise or cancellation of services in connection with a Credit Card sale (subject to and in accordance with Longaberger s return/cancellation policy), Home Consultant will prepare and deliver to Longaberger Sales Data reflecting such refund within three (3) days of receiving the customer s request for such refund. The amount of the refund cannot exceed the amount shown as the total on the original Sales Data. Home Consultant may not accept cash or any other payment or consideration from a customer in return for preparing a refund to be deposited to the Cardholder s account nor to give cash refunds to a Cardholder in connection with a Credit Card sale, unless required by law. 3. Retrieval Requests. 3.1 Records. Home Consultant shall retain documentation of each transaction for at least eighteen (18) months from the date of the respective transaction. Home Consultant may not charge a fee for the creation or storage of such copies. Longaberger may, at its sole discretion, require Home Consultant to deliver copies of Sales Data to Longaberger rather than storing it. If Home Consultant is no longer a member of Longaberger s home consultant network, at the request of Longaberger Home Consultant shall promptly destroy all Sales Data and, absent Longaberger s request, shall promptly destroy all original documentation and copies of Sales Data eighteen (18) months after the date of the respective transaction. The indemnity provided under Section 7 shall survive the termination of Home Consultant s participation in the Home Consultant Credit Card Program. 3.2 Response to Retrieval Requests. Longaberger will send Home Consultant any Retrieval Request that it cannot satisfy with the information it has on file concerning any Credit Card sale. In response, Home Consultant must provide Longaberger in writing by certified or overnight mail or by confirmed fax (or by other means as agreed by Longaberger) the resolution of Home Consultant s investigation of such Retrieval Request and include legible copies of any documentation required by the Retrieval Request within five (5) business days after Longaberger sends it to Home Consultant (or such shorter time as may be required by Processor or the Association Rules and of which Longaberger notifies Home Consultant). Home Consultant acknowledges that its failure to fulfill a Retrieval Request in accordance with Association Rules may result in an irreversible Chargeback. 4. Chargebacks. If Longaberger determines that the Sales Data provided by Home Consultant is resulting in an excessive amount of Chargebacks, in addition to Longaberger s other remedies under this Agreement, Longaberger may take the following actions: (i) review Home Consultant s procedures relating to acceptance of Credit Cards and require Home Consultant to adopt new procedures in order to avoid future Chargebacks; or (ii) terminate Consultant s participation in the Home Consultant Credit Card Program with written notice of termination. Home Consultant also agrees to pay any and all Association fees and fines assessed against Home Consultant, Longaberger, or Processor relating to Home Consultant s violation of these terms and conditions with respect to Home Consultant s transactions or with respect to excessive Chargebacks as a result of Sales Data provided by Home Consultant under this Section. 5. Advertising. Wherever Home Consultant accepts Cards Cards, Home Consultant will inform the public of the Credit Cards that it honors. However, Home Consultant may not indicate that any of the Associations endorses its services or Longaberger s products. 6. Termination. These terms and conditions shall become effective as to Home Consultant upon Home Consultant s acceptance hereof and shall continue until either (i) the termination of the Merchant Agreement between Longaberger and Processor; or (ii) the termination of Home Consultant s participation in the Home Consultant Credit Card Program by either party upon thirty (30) days prior written notice. Effective Page 2

3 7. Indemnity. Home Consultant agrees to indemnify Longaberger, Processor, the Associations, and each of their affiliates, officers, directors, employees, and agents from any losses, liabilities, and damages of any and every kind (including, without limitation, our costs, expenses and reasonable attorneys fees) arising out of any claim, complaint, or Chargeback (i) made or claimed by a Cardholder with respect to any Sales Data submitted by Home Consultant or (ii) caused by Home Consultant s noncompliance with these terms and conditions, including any breach of a representation or warranty made by Home Consultant, or (iii) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Home Consultant. The indemnification provided for in this Section does not apply to any claim or complaint to the extent it is caused by Longaberger s or Processor s own negligence or willful misconduct. The indemnity provided under this Section 7 shall survive the termination of Home Consultant s participation in the Home Consultant Credit Card Program. 8. Non-Disclosure of Cardholder Information. Home Consultant agrees to exercise reasonable care to prevent disclosure of any Credit Card or Cardholder information (including, without limitation, any Cardholder s name, account number, or any information about any transaction) (collectively, the Cardholder Information ), other than to Home Consultant s agents and contractors for the purpose of assisting Home Consultant in completing a Credit Card transaction, or to Longaberger, or to the applicable Association, or as specifically required by law. Home Consultant agrees not to use any account information or other Cardholder Information other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to Home Consultant, or as specifically allowed by Association Rules or required by law. Home Consultant agrees to comply with all security standards and guidelines that may be published from time to time by Visa, MasterCard or any other Association. 9. Information About Home Consultant s Credit Card Transactions. With prior notice and during Home Consultant s normal business hours, Longaberger s duly authorized representatives may visit Home Consultant s business premises and may examine only that part of Home Consultant s books and records that pertain to its Sales Data and Credit Card sales. 10. Miscellaneous Section Headings. The section headings of these terms and conditions are for convenience only and do not define, limit or describe the scope or intent of these terms and conditions Assignment. Home Consultant may not assign or transfer its rights or delegate its responsibilities under these terms and conditions without the prior written consent of Longaberger, which may be withheld at its sole discretion. 10.3Party. These terms and conditions bind the Home consultants and their respective heirs, representatives, and permitted assigns. Home Consultant represents and warrants that its execution of and performance under these terms and conditions (i) 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 it and any third party; and (ii) 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 signing this Agreement or is duly authorized to do so. In providing services to Longaberger, Home Consultant acts as an independent contractor, and shall not be acting in the capacity of Longaberger s agent, partner, or joint venturer Severability. Should any provision of these terms and conditions be determined to be invalid or unenforceable under any law, rule or regulation, such determination will not affect the validity or enforceability of any other provision of these terms and conditions Waivers. None of these terms and conditions may be waived unless both parties sign a written waiver Entire Agreement. The Association Rules and all schedules, exhibits, appendices, and attachments to these terms and conditions are made a part of these terms and conditions for all purposes. These terms and conditions represent the entire understanding between Longaberger and Home Consultant with respect to the matters contained herein Notices. Except as otherwise provided in these terms and conditions, all notices must be given in writing and either hand delivered, faxed, or by US mail, postage prepaid (and deemed to be delivered when mailed) to the Home Consultant address on file Governing Law. These terms and conditions will be governed by and construed in accordance with the laws of the State of Ohio without reference to conflict of law provisions. Effective Page 3

4 11. Definitions Association is a group of Credit Card issuer banks and debit networks that facilitates the use of payment credit cards, such as the systems operated by MasterCard International, Inc. and Visa, Inc. Association Rules are the bylaws, rules, and regulations, as they exist from time to time, of the Associations Credit Card is both the plastic card or other evidence of the account and the account number, issued by a Credit Card issuer to the Cardholder, either of which Home Consultant accepts from its customers as payment for their purchases from Home Consultant, such as debit and credit cards issued by MasterCard and Visa, or such other payment card as we may hereafter agree Cardholder is the person to whom the Credit Card is issued and who is entitled to use the Credit Card Chargeback is a reversal of a Credit Card sale Home Consultant previously submitted to Longaberger for processing by Processor Retrieval Request is a request for information by a Cardholder or Credit Card issuer relating to a claim or complaint concerning a Credit Card sale Home Consultant has made Sales Data is the evidence and electronic record of a sale or transaction representing payment by use of a Credit Card or of a refund/credit to a Cardholder. Effective Page 4

5 APPENDIX A SUPPLEMENTAL TERMS AND CONDITIONS 1. Acceptance of Cards. You will accept all consumer credit and debit/check cards accepted by Longaberger (currently VISA and MasterCard). 2. Processing of Sales and Credit Transactions. You shall process debit/check cards as a credit card and without the use of a PIN (personal identification number). You shall not present for processing any transaction that was not originated as a result of an act directly between the Cardholder and you. You shall not present for processing any transaction you know or should have known to be (i) fraudulent or (ii) not authorized by the Cardholder. You shall be responsible for the actions of your employees while acting in your employ. 3. Chargebacks. The term Chargeback refers to the debiting of your commission account or withholding of commissions for all or part of the amount of a particular sale. There may be a chargeback under any of the following circumstances, or as the Association Rules and operational requirements dictate from time to time. Consequently, additions and/or deletions to this list may occur. Cardholder account number is incorrect or otherwise invalid. Cardholder never received merchandise/service requested. Sales transaction was for an incorrect amount. Card was expired, counterfeit, altered, or invalid at time of sale Cardholder did not authorize or consent to the transaction. Signature on the order form does not reasonably match the signature on the Card. Order form was not signed by the Cardholder unless it was a mail order, telephone order or pre-authorized order in compliance with the terms and conditions and authorized by the Cardholder and indicated as such on the order. Cardholder asserts any disputes, claim, counterclaim, defense or offset against you. Order form or Sales Data or any material information thereon is illegible, incomplete, inaccurate or unsigned, or is not delivered to us within the required time limits. Order form or Sales Data is fraudulent or does not represent a bona fide transaction in the ordinary course of your business, or is subject to any claim of illegality, negligence, dishonesty or offset. You have failed to provide copies of order forms requested by us (retrieval request) within the prescribed time period. Suspicious transaction or fraudulent transaction. 4. Disputing Chargebacks. If you have reason to dispute or respond to a chargeback, then you must do so by the date provided by us on our correspondence to you. We are not required to investigate, reverse or make any adjustment to any chargeback when ninety (90) calendar days have elapsed from the date of the chargeback. All responses to chargebacks must be in writing, and must contain the following information: Date of Debit/Credit advice Company case number Total amount of chargeback Date and dollar amount in which the sale/credit was originally submitted If known, the date and authorization approval code Any supporting documentation to substantiate claim. You should include a dated cover letter detailing reasons for requesting a review of the chargeback. You should retain a copy of the correspondence and all documentation for files. You should retain proof that we received your response. Effective

6 5. Presentation of Cards You or your employee must examine each Card presented to determine that the Card presented is valid and has not expired by the terms on its face. You must exercise reasonable diligence to determine that the authorized signature on any Card presented corresponds to the Cardholder s signature on the order form. You must not honor expired, invalid, altered, counterfeit, or revoked Cards nor any Card presented by any person other than the proper Cardholder as evidenced by the authorized signature on the Card. We in our sole discretion may decline at any time or from time to time to process any sales data that does not include the actual signature of a cardholder, even if the cardholder s consent or instructions have been obtained by telephone or by mail. 5.2 A Cardholder may authorize another person to use his or her Card for purchases, provided the user s signature appears on the back of the Card. The signature on the back must match the one on the order form. If the Card is not signed, in addition to requesting an Authorization, you may review positive identification as allowed by local and state law, such as a passport or driver s license, to confirm that the user is the Cardholder, record the information and require the Cardholder to sign the signature panel of the Card prior to completing the transaction. 5.3 In order to protect yourself, you must never complete a transaction if the customer does not present his or her Card. If you elect to do so, you will be deemed to warrant the identity of the purchaser as the authorized holder of the Card, and if the Cardholder later denies making the purchase, you will not be able to rebut the chargeback. 6. Forgeries/Counterfeit Cards. You should examine all notices received from Longaberger or from Visa or MasterCard or other credit card associations to help you determine whether a Card presented is counterfeit. You should examine each Card to see if it looks genuine. Effective

7 Specialized Rules for MAIL ORDER, TELEPHONE ORDER, AND INTERNET TRANSACTIONS 1. Completion of Sales. 1.1 You must submit one Sales Data record for all goods and services sold in the same transaction. The collection and payment of all state, and local taxes is your responsibility unless you have opted for the company to collect and remit sales tax on your behalf. Taxes collected shall be included in the total transaction amount and not collected separately by another form of payment. 1.2 All available information about the sale, including handling and shipping charges, must be accurately recorded. You are responsible for determining that the purchaser is the person whose name appears as the Cardholder. If an account number is transposed into an invalid or inappropriate account number, the sale may result in a chargeback. 1.3 You will provide to the customer a true and completed record of the sale. 2. Data Security and Privacy: 2.1 If you, the Home Consultant, store cardholder information, you must comply with: use and regularly update anti-virus software or programs restrict access to Cardholder data by business need-to-know restrict physical access to Cardholder data 2.2 The Visa and MasterCard rules provide that Cardholder information and transaction data is owned by the Associations, the card issuer, and the Cardholder. Processor also asserts some ownership rights in the data to the extent it belongs to the MasterCard or Visa system. 2.3 You will not use any Card or Cardholder information other than for the sole purpose of completing the transaction authorized by the customer for which the information was provided to you, or as specifically allowed by Association Rules, or required by law. Processor, Longaberger, or any Association may inspect Home Consultant s premises and computers, and the premises and computers of any company the Home Consultant has contracted with, for the purposes of verifying that Cardholder information is securely stored and processed, and is not used for any purpose other than processing the transactions to which it relates. Effective