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HomeMy WebLinkAbout03-5253DAVIS, BUCCO & ARDIZZI By: John G. Richards, II, Esquire Attorney I.D. Nos. 79128 10 E. 6e Avenue, Suite 100 Conshohocken, PA 19428 Attorney for Plaintiff (610) 238-0880 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CONCORD EFS NATIONAL BANK : CIVIL ACTION ?} V NO. 03 - 5253 ao?C?? CAMPHILL EYECARE and JOSEPH WINBERRY NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO Le han demandado a usted en la corte. Si used quiere defenderse de estas demandas expuestas en las paginas siquientes, used tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado qui si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTS. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUMCIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAMEPOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PURDE CONSEQUIR. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 DAVIS, BUCCO & ARDIZZI By: John G. Richards, 11, Esquire Attorney I.D. Nos. 79128 10 E. 6th Avenue, Suite 100 Conshohocken, PA 19428 (610) 238-0880 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CONCORD EFS NATIONAL BANK : V. CIVIL ACTION CAMP HILL EYECARE and JOSEPH WINBERRY NO. 03 -S'253 COMPLAINT etui(,`Fu-k-? 1. Plaintiff, Concord EFS National Bank ("Concord") is a Tennessee corporation organized and existing under the laws of the State of Tennessee located at 2525 Horizon Lake Drive, Suite 120, Memphis, TN 38133. 2. Defendant, Camphill Eyecare ("Camphill"), is, upon information and belief, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a business address of 3028 Market Street, Camp Hill, PA 17011. 3. Defendant, Joseph Winberry ("Winberry") is, upon information and belief, an individual residing at 30 Glenview Boulevard, Dillsburg, PA 17019 and the agent/owner of Camphill Eyewear. 4. Concord provides credit card processing services for businesses. 5. At the request, of Joseph Winberry as the agent/ owner for Camphill Eyewear, Concord provided the defendants with credit card processing services to be used for Winberry's business. 6. Camphill agreed to pay Concord its stated prices for the services it requested. 7. Winberry, as owner and operator of Camphill personally guaranteed Concord that he would satisfy any debts which Camphill did not pay. 8. The total price for the services provided to the defendants was $4,579.06. The invoices are attached hereto as Exhibit "1" 9. Despite repeated demand, the defendants have failed and refused to pay Concord the $4,579.06 that is now, and has been, due and owing. COUNT I - BREACH OF CONTRACT 10. Concord incorporates by reference the averments made in paragraphs 1 through 9, above, as though fully set forth at length. 11. Camphill and Winberry entered into a valid and binding contract with Concord for the afornoted services. 12. Camphill and Winberry's failure to pay Concord the agreed amounts constitutes a breach of contract. 13. Concord has suffered damages in the amount of $4,579.06 as a result of Camphill and Winberry's breach. WHEREFORE, Concord requests judgment in its favor and against the defendants in the amount of $4,579.06 plus interests, costs and such other relief as the court deems proper. COUNT II- UNTUST ENRICHMENT (in the alternative) 14. Concord incorporates by reference the averments made in paragraphs 1 through 12 above, as though fully set forth at length. 15. Concord supplied Camphill and Winberry with services that the defendant, Winberry used to advance his business interests. 16. Winberry, acting on behalf of Camphill, accepted the services provided by Concord knowing that Concord expected to be paid the reasonable value or agreed price of the services. 17. The defendants have failed to pay Concord for the services. 18. The reasonable or agreed value of the services that Concord supplied to the defendants is in excess of $4,579.06. 19. The defendants' acceptance of the services and its use of those services without proper compensation to Concord is an unjust enrichment to the detriment of Concord. 20. It would be unjust if the defendants were permitted to accept the services of Concord without proper payment. WHEREFORE, Concord requests judgment in its favor and against Camphill and Winberry in the amount of $4,579.06 plus interests, costs and such other relief as the court deems proper. COUNT III - BREACH OF PERSONAL GUARANTEE 21. Concord incorporates by reference the averments made in paragraphs 1 through 20 above, as though fully set forth at length. 22. Winberry's personal guarantee was part of the consideration for Concord's provision of services. 23. Winberry is obligated by the terms of the personal guarantee to pay any and all debts to Concord which Camphill does not satisfy. A copy of the personal guarantee is attached hereto as Exhibit "2". 24. Camphill has refused to pay the amount that is due and owing. 25. Winberry has breached his Personal Guarantee by refusing to pay the amount owed to the plaintiff. WHEREFORE, Concord requests judgment in its favor and against Camphill and Winberry in the amount of $4,579.06 plus interests, costs and such other relief as the court deems proper. DA 4 G. RICHARDS II 6th Street, Suite 100 hohocken, PA 19428 (610) 238-0880 Attorneys for Plaintiff 09/03/2003 14:52 FAX ? NCOLEGAL 8023/052 DIRECT DEBIT SERVICE AGREEMENT THIS AGREEMENT. ("Agreement") is made as of"aw-4i 9 y /999 , by and between LIh^?1+??1 gtez"i- ("USER") having its operating headquarters at rpn10 .4.// IP4 and CONCORD EFS. INC. and its subsidiaries ("CONCORD"), a Delaware corporation. having its principal office at 2525 Horizon Lake Drive, Suite 120. Memphis, Tennessee 38133. Recitals I, CONCORD operates a consumer-oriented electronic financial services system that utilizes a multipurpose terminal. 2. USER owns and operates a store(s). 3. USER and CONCORD desire to develop and implement a financial services system for use by customers of USER and participating financial services institutions at USER's store(s) locations. In consideration of these premises and the following covenants and agreements. USER and CONCORD agree as follows: ARTICLE 1. DEFINITIONS 1.1 For all purposes of this Agreement, the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular. 12 "Access Device" means a plastic card, code or other means or any combination thereof, that identify a customer of a FS), for the purpose of permitting a customer to initiate an electronic fund transfer or other transaction at a POS Terminal. 1.3 "The Acts" means the Federal Electronic Funds Transfer Act and their applicable rules and regulations as now or hereafter amended during the term of this Agreement. 1.4 -USER Storc(s)" means store facilitie(s) owned or operated by USER in the state(s). 1.5 "FSI" means a financial institution who issues ATM cards, the customers of which are entitled to use the System. 1.6 "POS Terminal" means point of sale electrotilc fund transfer device, i.e., an information processing machine located on the premises of a merchant which is connected to the system to effectuate financial transactions authorized by law, and which requires for certain transactions the assistance of a merchant's customer service personnel. 1.7 "Settlement Institution" means such bank designated by CONCORD to handle the reconciliation and settlement of financial transactions initiated at USER Store(s) through the System. 1.8 "Switch" means the computer-based switching system operated by or on behalf of CONCORD and used in connection with the System. 1.9 "System" means all the necessary software and hardware and peripheral devices operated by or on behalf of CONCORD to enable FS1 to offer consumer electronic financial services to their customers on merchants' premises, through an electronic information communication and processing network 1.10 'System Cutoff' means the time each day that the System will produce totals for purposes of later reconciliation or settlements of the day's transactions, which is agreed to be 12:00 o'clock (Midnight) or such other time as USER and CONCORD shall agree. ARTICLE 2. GRANT OF EXCLUSIVE LICENSE TO CONCORD 2.1 Upon and subject to the terms and conditions set forth in this Agreement, USER hereby grants to CONCORD, and CONCORD hereby accepts, the exclusive right, license and privilege, (hereinafter called the "License") to: (a) establish, operate and maintain an electronic funds transfer system, as regulated by the Acts, in USER Store(s): and (b) sell System services to FSI's which allow FSI customers to electronically initiate financial transactions from USER Terminals located in USER Stores(s). 22 CONCORD's Licenses pursuant to paragraph 2.1 above, are expressly conditioned upon and subject to only the following matters: 09/03/200314:52 FAX i NCOLEGAL Z 024/052 (a) the right of USER as to individual USER Store(s) to cease doing business. (b) applicable zoning restrictions and zoning regulations insofar as the aforementioned restricts the operation'of the System. (c) USER shall not use its rights pursuant to paragraph 2.2 (a) to circumvent the obligation of USER to CONCORD pursuant to paragraph 2.3, below. (d) restrictions in the leases covering the various USER Store(s). 2.3 Tenn. This agreement shall become effective when accepted by CONCORD and shall remain in full force and effect for a period of thirty six (36) months, except as otherwise provided in this agreement. This agreement shall be automatically renewed annually under the same terms and conditions provided for herein for twelve (12) months periods unless merchant notifies CONCORD in writing prior to ninety (90) days/three (3) months before the end of any expiration or extended date hereunder of merchant's intent to terminate this agreement. ARTICLE 3. CONCORD DUTIES AND RESPONSIBILITIES 3.1 The System Shall, subject to applicable law, be capable of providing POS debit capabilities for use by customers of F$i. 32 It is recognized that some FSI's may from time to time be prohibited by law from offering some services which may be legally offered by other FSI's. By requesting USER to provide access to USER Terminals or POS Terminals within USER Sture(s) for the System, CONCORD shall be deemed to warrant to and covenant with USER that to the best of CONCORD's knowledge the service, when offered under the System to FSI customers, is fully permitted by law and applicable governmental rules and regulations then or thereafter in effect and applicable to such PSI or proprietary network; and (ii) that CONCORD is in compliance with all rules and regulations applicable to CONCORD. ARTICLE 4. OBLIGATIONS AND RESPONSIBILITIES OF USER 4,1 USER shall: (a) Accept payment for goods by means of debit cards associated with the network. (b) Participate with CONCORD in training sufficient USER trainees to provide said customer service. (c) Provide and pay for such access to electrical power and communication circuits as is necessary to permit operation and utilization of the System in USER Stores provided, however that USER makes no representation nor warranty regarding interruption of clectricai or communications services or with respect to this losses that may arise from power surges and the like: (d) Maintain a USER $.1, Clearing Account with the Settlement Institution for receiving payment for approved debit transactions. 4.2 USER shall provide security, heat, air conditioning, lighting, ventilation and cleaning the POS Terminals and ATM's within USER location to the same extent as it provides such services for its stores generally. 4.3 USER shall provide reasonable access to the POS Terminals and ATM's connected to the system, for System diagnostics by CONCORD during or after the System's Operation Period. 4.4 USER shall provide prompt notice to CONCORD of all System malfunctions of which its customer service personnel become aware. 4,5 USER shall indemnify the Settlement Institution and hold it harmless from and against all claims, losses, liabilities and expenses, including legal fees and costs resulting from actions by the Settlement Institution which actions unjustly enrich USER and are in accordance with this Agreement or which are based upon erroneous information transmitted to the Settlement Institution by USER its officers or employees, through the operation of a USER Terminal, POS Terminals or ATM's located within a USER Score(s). 4.6 USER agrees to display in-store signage. Any in-store signage developed by USER must be approved by CONCORD before being deployed. ARTICLES. SERVICE FEES Merchant will be paid daily through the ACH system for all transactions authorized the previous day. As payment for these services, CONCORD will deduct a service fee in the amount as set out on the merchant data sheet. The service fee will include a charge for each ACH payment. 09/03/2003 14:52 FAX , NCOLEGAL R025/052 ARTICLE 6. RECORDS AND AUDIT 6.1 CONCORD shall keep accurate books of account, contracts and records covering all transactions relating to this Agreement or arising out ofthe Licenses for the purpose of evidencing the settlement of transactions. Such books of account, contracts and records will be maintained by CONCORD in accordance with the normal industry standards. 6.2 If an examination referred to in paragraph 6.1 above, discloses an overpayment or underpayment, the appropriate amount shall be immediately paid or refunded to the party entitled hereto. ARTICLE 7, DATA SECURITY 7.1 CONCORD and USER will each safeguard 211 data relating to the others business or to the business of customers obtained pursuant to this Agreement or the transactions contemplated hereby, to the extent that it safeguards data relating to its own business, unless such data was otherwise available to the public or was already in its lawful possession or was rightfully obtained by it from others, but in any event shall safeguard such data to the full extent required by law. 72 USER will keep confidential all programs and processes of CONCORD, and CONCORD will keep confidential all programs and processes of USER, in each case except as such disclosures arc necessary for the performance of the services contemplated in this Agreement. 7.3 The other provisions hereof notwithstanding, USER and CONCORD shall be free to use said information to improve their own respective operations and to increase the type or quality of services offered to their respective customers, except to the extent that such actions would result in the disclosure of information about the other that the parties might agree should be treated as confidential- 7.4 The provisions of Article 8 shall survive the termination of this Agreement- ARTICLES. MISCELLANEOUS 8.1 Notwithstanding the foregoing or anything contained herein to the contrary, neither the parties hereto, nor the Settlement Institution, shall be liable for nonperformance, delays or loss or damage caused by or resulting from: (A) Hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack: (1) by any government or sovereign power (de jure or de facto), or by any authority maintaining or using military, naval or air forces: or (2) by an agent of any such government, power, authority or forces; (B) Any weapon or war employing atomic fission or radioactive force whether in time of peace or war; (C) Insurrection, rebellion, revolution, civil war, usurped power, or action taken by government authority in hindering, combating or defending against such occurrence, or confiscation by order of any government or public authority. 82 Neither the parties hereto, nor the Settlement Institution shall be liable for nonperformance or delays not caused by its fault or neglect, [tor for nonperformance or delays caused by strikes, lockouts, or other labor disturbances, riots, authority of law, acts of God or other means beyond its control (including unusually severe weather). Notre of the foregoing shalt excuse any nonperformance (as distinguished from a [Here delay) in making any money payment. 83 Acknowledgment of Ownership of System. USER acknowledges that it does not own any of the.programs or processes of CONCORD which are covered by this Agreement, USER further acknowledges that it has no right to use any service mark of CONCORD unless approved by CONCORD. 8.4 Waiver. Any delay or failure of either party hereto at any time to require performance by the other parry of any provision of this Agreement shall in no way affect the right of such parry to require performance or that or any other provision, and any waiver by either party of any breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of any provision, a waiver of this provision itself or a waiver of any other right under this Agreement. 8.5 Authorized Representatives. USER will be represented by Mr. s. L,.J? ?r?.?? and CONCORD will be represented by Mr. Den M_ Palmer (hereinafter referred as "Authorized Representatives"). ?aid Authorized Representatives shall be the only persons with authority to sign amendments to this AgreemenL A parry to this Agreement may change its Authorized Representative, by written notice signed by any duly authorized officer. 8.6 Severability. If any of the provisions of this Agreement are invalid under any applicable statue or rule of law, they are, to that extent, to be deemed omitted- 8.7 Section Headings. Section headings are used for convenience only and in no way limit or alter the terms of this Agreement. 8.8 Integration and Governing Law, This Agreement constitutes the entire agreement between USER and CONCORD and 09/09/2003 14:52 FAX + NCOLEGAL fa026/052 supersedes all proposals oral or written and all other communications oral or written between the panics relating to the subject matter of this Agreement, and may not be modified except in writing signed by both parties. This Agreement shall be governed by the laws of the State of Tennessee. 8.9 Successors and Assigns. This Agreement shall be binding upon and ensure to the benefit of the parties hereto and their respective successors in title. 8.10 Regulatory Authorities. The parties shall cooperate with those state and federal agencies authorized to supervise and examine the activities of USER. CONCORD and FSI's pursuant to this Agreement. 8.11 Legal Expense. In case suit shall be brought because of the breach of any covenant, warranty, duty to pay, or other obligation. herein contained on the part of a party hereto to be kept or performed and a breach shall be established, the prevailing party shall be entitled to all expenses incurred therefore, including reasonable attorneys', accountant's fees and court costs from the other party. 812 Termination. If CONCORD or USER shall materially breach any of its obligations under the terms of this Agreement, other than the breach of a payment obligation, then the other party shall have the right and option to terminate this Agreement upon 30 days prior written notice; but no neglect or failure to serve such notice shall be deemed to be a waiver of any breach of any covenant or stipulation under this Agreement. Such termination of the Agreement shall become effective unless the violation complained of shall be completely remedied within such 30 day period. This Agreement my be terminated by the party deserving payment for any material breach of a financial obligation that is not cured within twenty (20) days of its occurrence- The termination of the Agreement shall be without prejudice to any rights that a party may otherwise have against the other under this Agreement or under law, 8.13 In addition to the terms and conditions of any other agreement entered into between the sponsoring financial institution named below (the "Licensee") and the point of sale merchant or automatic teller machine sponsoree named below (the "Sublicensee'), the parties hereto further agree as follows: (a) A copy of any applicable Service Mark License Agreement (the"Agreements") between Regional Networks ("the Licensor') and the Licensee has been provided to Sublieensee, and Sublieeesee agrees to be bound by all of the obligations and undertakings of Licensee thereih to both the Licensor and the Licensee mined therein, and the right of Sublicensee to use or display the service marks covered by the Agreement (the "Service Marks") shall be governed by that Agreement. (b) The Licensor or the Licensee may enter upon any property under Sublicensee's custody or control for the purpose of determining Sublicensee's compliance with the Agreement at any time during usual business hours. (c) Any graphics or signage of Sublicensee found not to be. in compliance with the Agreement may be destroyed or removed by Licensor. Licensee, or either of their agents, without liability to Sublicensee. (d) Should Licensee cease to sponsor Sublicensee's participation in the electronic funds transfer network operated by Licensor, or should Licensee cease to be a member of Licensor, then the sublicense of Sublicensee to use or display the Service Marks shall terminate, and Sublicensee shall immediately cease all use of the Service Marks_ IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first stated above. USER CONCORD EFS, INC. Y/ 09/03/2005 14:48 FAX + NCOLEGAL 0 004/052 10/04/02 10/05/02 10/10/02 10/10/02 10/17/02 10/18/02 10/18/02 10/23/02 10/24/02 10129/02 10/30/02 11/01/02 11/02/02 11/04/02 11/04/02 11/05/02 11/08/02 11/07/02 11/12/02 11/13/02 11/14/02 11/14/02 11/14/02 11/14/02 11/19/02 12/04/02 12/07/02 12/10/02 12/12/02 12/13/02 12/17/02 12/19/02 12/24/02 12/26/02 12/26/02 01/06/03 01/10/03 01124/03 01 /24/03 02/08/03 02/08/03 02/13/03 02/13/03 Camohill Evecare 0171364-0001 refund sale S 96.00 Oct monthly fee S 15.00 chargsback 4121340002343446 $ 900.00 chargebacc fee $ 15.00 $ sale sale $ (103.99) $ chargeback 4121449992325253 5 60.00 chargeback fee $ 15.00 $ sale sale $ (57.32) $ sale sale $ (73.49) $ held held sales $ (31.68) $ refund sale $ 1,573.04 $ held held sales $ (24.30) held held sales $ (134.03) chargeback 4009276331043611 $ 1,900.00 chargeback fee $ 15.00 $ held held sales $ (217.83) held held sales $ (120.23) S held held sales $ (255.16) $ held held sales $ (154.65) $ held held sales $ (2922) $ ohargebacc 4356002508167150 $ 2,000.00 chargeback fee $ 15.00 $ sale sale $ (48.89) sale sale $ (93.17) held held sales S (405.85) $ held held sales $ (317.47) held held sales S (58.43) held held sales $ (73.49) held held sales $ (176.68) held held sales $ (24.30) held held sales $ (274.63) held held sales $ (141.14) held held sales $ (416.87) chargeback 4428001482306952 $ 96.00 chargeback fee $ 15.00 $ held held sales $ (75.95) held held sales $ (186.09) chargeback 4417112127008326 $ 70.78 chargeback fee $ 15.00 $ 3,305.86 additional amounts due as of 2/20103 chargeback 5424180421937064 $ 1,165.00 chargeback 5424180421937064 6 15.00 chargeback 6438 M 003662448 $ 78.20 chargeback 5438050003662448 $ 15.00 $ 1,273.20 Total amount due as of 2120/03 $ 4,579.06 915.00 7-01 75.00 (50.31) 1.51 (31.68) 1,574.65 1,915.00 (120.23) (255.16) (154.55) (29.22) 1,872.94 (405-85) 111.00 Page 1 of 1 09/03/2003 14:58 FAX -+ NCOLEGAL .tM027/052. POINT OF SALE (FOS) MERCHANT AGREEMENT FOR ELECTRONIC AUTHORIZATION AND PAYMENT This Point of Sale Merchant Agreementfor Electronic Authorization and Payment ("Agreement") is entered into the day and date set forth below by and between EFS National Hank ("EFSNB"), 2525 Horizon Lake Drive, Suite 120; Memphis, Tennessee, 38133, and the undersigned merchant, professional, service, office or establishment, ("Merchant"), In consideration of the mutual covenants herein, the parties agree to the following tams and conditions. I. ACCEPTANCE OF BANK CARDS. Merchant agrees to promptly honor all valid and current MasterCard and Visa Cards when properly presented as payment from a customer of Merchant for a transaction. Merchant shall not establish minimum or maximum transaction amounts as a condition for honoring Cards, shall not impose any surcharge on transactions, shall not make rash advances, and shall collect any lax required in the total transaction amount and not separately in cash. Merchant shall not impose a requirement upon the cardholder m provide anv per,onal information such as a phone number or address, unless domed necessary because of suspicious circumstances. Morehtmt agrees to adequately displav the appropriate Service Marks on promotional materials as required by EFSNB and/or MasterCard International, Eno, or Visa, If.S.A (hereinafter referred to as MasterCard/Viaa). As used herein, the term "Cards" shall refer to any Cards of similar design licensed for use by MasterCard/visa. 2. AUTHORIZATION. Merchant must receive authorization of a transaction from EFSNB using an electronic data terminal ("POS 1"erminuf'). The Card most be present and swiped through the POS terminal in order to receive payment under this Agreement. If the initial attempt to receive an authorization is declined, merchant shall not attempt to receive a subsequent authorization. Authorization maybe by voice over the telephone only if the POS Terminal is not operating. There is a charge for voice authorizations if POS Terminal is operable but not used, hi the ovens EFSNB authorizes the transaction by voice, it will transmit an Authorization code, which must be written on the Sale, Draft. 3. RECOVERY OF CARDS. Merchant shall use its best etrorts, using peaceable means, to retain or reserver any Card, if Merchant is adviszd to retain the Card in response to an authorisation inquiry, or ifMerchant has reasonable grounds to believe such Card is counterfeit, fraudulent ar stolen. 4. SALES DRAFT PROCEDURE. In order to be eligible for payment, Merchant must comply with all Visa/MastcrCurd Rules and Regulations including those listed herein. Each Saba Draft must include the date and a brief description of the merchandise and/or services sold and the price thereof (including any applicable taxes). Merchant must compare the signature an the Sales Draftt with the signature appearing on the Card. Merchant agrees to emboss (imprint) the Sales Draft with the Card. A Sales Draft generated by an electronic printer as the Card is swiped through a POS Terminal coanccted to the. printer will be accepted as an embossed or imprinted Sala, Dtaft. Merchant must still obtain the cardholders signature out the electronically printed Sales Drag If the Card information cannot be read by the POS Terminal and must be munually entered, the Sales Draft must be embossed manually. The Sales Draft must include the total cash price of the sale and the cash price for each item, the authorization code, and any additional information EFSNB reasonably requires. Merchant shall deliver to the Customer a true and complete copy of the Sales Draft at the time of delivery of goods or performance of services. In order to prove that the Sales Draft has been properly completed, Merchant agrees to retain a copy of the Sales Draft, other than the copy given to Customer, for a period of a least three years after the date of the transaction, unless otherwise required by EFSNB. At the request of EFSNB, Merchant shall deliver the proper copy of any Sales Draft so requested, according to the procedures set by USNB. In the event Merchant fails to deliver such Sales Draft, Merchant shall be liable to EFSNB for any and all damages to EFSNB, such as Chargebaeks, which regttve such Sales Drafts for proper investigation, or other damages related to failure to retain Sales Drafts. 5. PAYMENT. EFSNB will pay Merchant daily through the automated clearing house (ACH) system for all transaction authorized the previous day. As payment for its services, EFSNB will deduct charges from the authorized transactions as set out on Merchant data sheet, which may be changed from time to time at the sole discretion of EFSNB upon notice to Merchant Charges will include a daily ACH transaction fee. 6. RETURNED MERCHANDISE. If any merchandiser is accepted for return or any services are terminated or canceled, or any price adjustment is allowed, Merchant shall not make any cash refund to the customer but shall issue promptly to EFSNB via the POS Terminal for deposit a Credit Voucher evidencing such refund or adjustment. The refund or adjustment indicated by the Credit voucher may not exceed the original transaction amount Merchant shall not accept any payments from customer for merchandise and/or services if the purchase has been previously transmitted to EFSNB via the Terminal. Any such remittance which is inadvertently received by Merchant will be segregated and promptly delivered to EFSNB properly endorsed or signed, or Merchant shall prepare a Credit Voucher on the POS Terminal for the purpose of effecting a deposit to the cardholder's account. 7. WARRANTIES AND REPRESENTATIONS. Merchant warrants and represents that each Sales Draft prepared and each transaction transmitted to EFSNB represents a valid obligation for the amount set forth therein, is not subject to any disputes, set offs, or counterclaims, is valid in form and complete on its face in accordance with iruNructions described above, is signed by customer to whom Merchant has actually sold the merchandise or services on the date thereof, that the Sales Draft was personally signed by Customer and the signature corresponds with the signature on the Card, that ail statements on the Sales Draft are live and Merchant has no knowledge which would impair the ralidily of or collectibility of the Sales Diafl, the Merchant has performed all of its obligations with respect to the sales transaction, that the silo does not involve any element of credit except to sell the merchandise or service, and that there have been no services carrying or any special charges or any special agreements, conditions or securities extracted in connection with the sale. Merchant further warrants that merchandise has been delivered and/or services rendered to the Customer in satisfaction of the underlying obligation. Merchant agrees that EFSNB may establish a Chargeback reserve by debiting Merchant's incoming transactions or other funds of Merchant in EFSNB's control in the event that Merchant beaches this Agreement or violates any rule or regulation of MssterCard(Visa regarding the use of their cards in any manner. U9/U3/2U03 14:53 FAX 4 NCOLEGAL 14028/052 i C) g Vr3 8. CHARGEBACKS. Merchant audionzes EFSNB to charge back any transaction which breadus the terms of the Agreement and/or the rules and procedures of MaatetCetd/Visa. Transactions that have been chugged back and not mpreseoted may not be reauthorized. 9. IIYIPRINTERS At the request of Merchant, EFSNB will Aunish Merchant for afar, a sufficient number of imprintero for Merchant's needs. The ingainters are the property ofMercbant If Merchant has or supplies the imprinter, it must meet with the approval of EFSNB. EFSNB will supply Merchant with Sales Draft and other forms as necessary. 10. RECORDS Merchant agrees to furnish EFSNB with such financial or other information about Merchant's business as may by requested from time to time. EFSNB shall have the right to verify all sales and to m mine Merchant's books, records and other papers relative to Sales Drafts delivered to EF'SNB. 11. MESCELLANEOUSS This Agreement shall become clfcotivc when accepted by EFSNB and shall remain in affect until notice of termination shall have been provided to the other petty. Notioc shall be deemed to have been duly given when mailed to the party at the address given below or otherwise provided. Notwithstanding the foregoing provision, EFSNB has the right to terminate this Agreement immediately and without notice in the avant that Merchant breeches this Agreement or violates rite Rules or Regulations of MasterCard/Visa. Termination of this Agreement shall not affect any obligation assumed or incurred by Merchant and existing as of the date of tho termination. Following termination of the Agreement, Merchant shall no longer hector Cards or use any of the materials issued under this Agreement Merchant expressly agrees to pay EFSNB on demand any and all indebtedness incurred pursuant to this Agreement and costs and/or expenses which may be incurred by EFSNB in any attempt to enforce any provision of the Agreement or to collect any indebtedness incurred pursuant to the Agreement including, but not limited to, court costs and all expenses and reasonable attorney's fees. This Agreement cannot be smigned to any patty by Merchant, but will be binding upon and inure to the benefit of any heirs, representative, or successors. This Agreement may be amended at any time by EFSNB upon written notice to Merchant This Agreement shall be construed and enforced in accordance with the internal laws of the State of Tennessee without reference to choice of law rules, Any legal action, including an original complaint or third party claim, by or in the right of any party to this Agreement or any action arising under or related to this Agreement Including, but not limited to, a claim for paymerd under the Agreement, and also including any noncontract claim, shall be brought and maintained exclusively in a statc or federal court of competent subject matter jurisdiction in Shelby County. Tennessee, and the parties hereby submit themselves to the personal jurisdiction and venue of those courts for the purpose of any such action and hereby waive any defense related to personal jurisdiction, }rotas or venue brought in those courts. MERCHANT UNDERSTANDS THAT THIS AGREEMENT SHALL NOT TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED BY EFS NATIONAL BANK AND A MERCHANT NUTABER ISSUED. EFS NATIONAL BANK Nameof C .?L+?/J?i`?? M / ?2y Name Name -fMcfdwwmtt Rrpresentativ-e" D/yy e.2 Titlle Title 9 Q(% Signature Date Signed and Accepted Data Signed FOR VALUE RECEIVED, and in eonaidordicm of the mutual undertakings contained in the MERCHANT PROCESSINGAGREFMENf (the "A ffoemarit") by and between MERCHANT and BANIt the undersignod jointly, and severally if more than one, unconditionally guarantees to BANK, its successors and nefto,, the full and prompt payment when due of all the obligations of every kind and nature of MERCHANT arising directly or indirectly out of the Agreement or any document or agreement executed and delivered by MERCHANT in accordance with the tams of the Agreement The undersigned further agrees to pay to the BANK 4 expenses (including attorney'a fees and court vests) paid or incurred by the Bpt?K in collecting such obligations, and in enforcing the Guaranty - X 61J.,? f'' No Titles owed No Titles Allowed ?s O ? '? f1 V / ? W _ W r'?? : l J ?," I V) 7 ? L.i -?.? 1.) !?1 1 ?? .,J ti CASE NO: 2003-05253 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CONCORD EFS NATIONAL BANK VS CAMPHILL EYECARE ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CAMPHILL EYECARE the DEFENDANT , at 1358:00 HOURS, on the 7th day of October , 2003 at 3028 MARKET STREET CAMP HILL, PA 17011 JOSEPH WINBERRY by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this] day of ?cU`f A.D. _r; I,i-771 PO ?y rothonotary So Answers: R. Thomas Kline 03/11/2004 DAVIS & BUCCO By: De uty Wsf SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-05253 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CONCORD EFS NATIONAL BANK VS CAMPHILL EYECARE ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT WINBERRY JOSEPH but was unable to locate Him deputized the sheriff of YORK serve the within COMPLAINT & NOTICE to wit: He therefore County, Pennsylvania, to On March 11th , 2004 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep York County 71.84 .00 96.84 03/11/2004 DAVIS & BUCCO -1 So answer - , - /::r---- R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this /j ?rl day of Wta- ? -;2#oA. D. 18 .1? (2, Prothonota¢y in his bailiwick t_ COUNTY OF YORK ?{ -f OFFICE OF THE SHERIFF SERVICE CALL 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1. PLAINTIFF/S/ Concord EFS National Bank 2. COURT NUMBER 03-5253 civil 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT CampHill Eyecare et al Notice and Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Joseph Winberry 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO., CITY, BORO, TWP, STATE AND ZIP CODE) AT 30 Glenview Blvd. Dillsburg, PA 17019 7. INDICATE SERVICE: J PERSONAL J PERSON IN CHARGE O DEPUTIZE nt?f&'..fl1AN" J 1ST CLASS MAIL J POSTED JOTHER NOW October 6, 2003 20 _ I, SHERIFF OF IM COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute ?ake return the cording to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF? COUNTY B. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. ttanberlanfl Out of t31fMNIKMXllIIdX XXX*XX County - Cumberland Advanced fee paid by attorney NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY/ ORIGINATOR and SIGNATURE 19428 10. TELEPHONE NUMBER 11. DATE FILED John G. Richards II 10 E. 6th St. Ste. 100 Conshohocken PA610-238-0880 10/03/200: 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). SPACE BELOW FOR USE OF THE SHERIFF- DO NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above 4d a M. XAeIs ,RAT 10/07/2003 11/03/2003 16. HOW SERVED: PERSONAL ( RESIDENCE ( OSTED ( ) POE ( ) SHERIFF'S OFFICE( ) OTHER( ) SEE REMARKS BELOW 17*2ATTF J I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. name above. (See remarks belm.) j E OD TITLE OF INDIVIDUAL SEWED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 119. D to of service 120. Timmf Service MDat,f Time it©es Int. a (Mile's lrc-cLQ Date Time M' Int. Date Time Miles Int. Date Time es lint. Date Time Miles Int. I Q ?WC l" I'? I I I I I? 22. REMARKS: I?io lap 23. Advance Costs ??S eviceCosts 25. N/F 26. Mileage 27. Postage 26, ///yS;;ub ToWI 29. Pound 30. Notary 131. Surchg. 132. Tat. COS 34. Foreign County Costs 135. Advance Costs 136. Service Costs 137. Notary dart. 38. Mileage/Posted/Not Found 39. Total Costs 41. AFFIRME and subscribed to before me this 6th ????([11//?1,, Signature rr 42. day of J n • NOTAR.D` HAb%'l Dap. Sh ((I MELISSA J. SHAFFEP., Nd,,T GIIO q6. Signa net of York City of York. Vork County Coun ShediF [Myy?Co/mmmissiion Expires AA pni 2201, 2006 Sher' f 1 "i"?f C' J48. Signature ri Foreign County Sheriff DGE RECEIPT?Y OF THE SHORIZED ISSUING AUTHORITY AND TI ?]?A 33. Costs Due? 4f fund ?heck N -31 140. Costs Due or Refund iam M. Hose 47. 0 DATE -06-2004 49. DATE 51. DATE RECEIVED 1. WHITE- Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriffs Office Curtis R. Long Prothonotary office of the protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor O 3 - S2 3 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573