Welcome! Copyright 2017 MAC. All Rights Reserved.

Transcription

1 Welcome!

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3 M erchant Processing Agreement A R isk Mitigation Tool 1. Type of Relationship 2. Limitation of Liability 3. Version Control 4. Reserve Account 5. Reporting Errors

4 Define the Relationship What are processors and ISOs to their merchants? R isk Example problems Money sent to the wrong MID Card brand fees assessed Reserve withheld Claim for breach of fiduciary duty Punitive damages

5 Define the Relationship What are processors and ISOs to their merchants? R isk M itigation Specify the relationship Arm s length Independent contractor Consider specific disclaimer of fiduciary status Disclaim warranties

6 Limitation of Liability You want me to pay what? R isk Big money dispute Fraud chargebacks after EMV liability shift Business closure after MATCH list reporting Merchant seeks to hold processor liable for entire damage, including incidental costs

7 Limitation of Liability You want me to pay what? R isk M itigation Limit liability to fees paid during relationship Specifically disclaim liability for incidental, punitive, exemplary damages Conspicuousness requirements Explicitly acknowledge ability to report to MATCH without liability

8 R isk Version Control Wait, which one is our contract again? Confusion over the paper means challenge to the existence of a contract Post-acquisition Technological advance Class action challenges to contractual terms Early termination fees Ability to modify terms

9 Version Control Wait, which one is our contract again? R isk M itigation Version control numbers Dates Match application number to terms and conditions number Push to ISO level Confirm right to amend With notice Option to terminate Periodically update the processing agreement Tweak notice periods Tweak early termination fee formulas Internally track updates

10 Reserve Account Whose money is it? R isk Merchant Bankruptcy Is it merchant money? Is it part of the bankruptcy estate? Government Enforcement Action Brought against a merchant Asset freeze and demand for reserve funds

11 Reserve Account Whose money is it? R isk M itigation Prescribe how the reserve will be held Non-segregated Account in processor or ISO s name with acquiring bank Prescribe how long the reserve will be held Six months is a common minimum Consider a definite end time Limit merchant rights to the reserve No right of access to reserve account Shall not be deemed property of merchant during time period acquirer is permitted to hold it

12 R isk Error in fees assessed Missing batches One-time fee Reporting Errors See something, say something

13 Reporting Errors See something, say something R isk M itigation Merchant obligation to review statement and report errors, discrepancies, or disputes within a fixed time (e.g., 60 or 90 days) Clearly prescribe where the report is to be made (e.g., specific mailbox, legal team, etc.) Make reporting a prerequisite to recovery Potential defense to class actions

14 Bonus Content: Arbitration Faster resolution Less expensive than litigation (but you have to pay the arbitrator) Private forum Class action waivers are permissible

15 For more information: Theresa Kananen All rights reserved. This presentation is intended to provide general information on various regulatory and legal issues. It is NOT intended to serve as legal advice or counsel on any particular situation or circumstance.