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Any indemnity clause should be mutual, and the
prevailing party should be entitled to any and all legal
fees. The processor should not ask a partner to sign on to
any indemnity they are not willing to also commit to.

Merchant services professionals should have months
to review their residual reports and to identify errors.
Limiting the time to 90 days or less invites sloppiness on
the processor's part. After all, it's their reporting, and
it sometimes takes months to spot a trend. If reporting
is erroneous, they should make good on the error. At a
minimum, this time frame should be six months.

Committed Sometimes all you have are two people committed to the
commitment

By Ken Musante Relationships will encounter difficult periods. If both
parties are committed, it will survive and flourish.
Napa Payments and Consulting Prenuptial agreements can be used by one party to dictate
actions and lead to an unbalanced, resentful relationship.
am an ordained minister. This past month, I had the Likewise, any agreement that allows for Schedule A to be
honor of a lifetime: I presided over the services to unilaterally modified should be torn up.
consecrate the nuptials of my daughter and son-in-
I law. It was a beautiful weekend, exceeding expecta- I can understand a situation where the pricing may be raised
tions. Marriage is a partnership. A commitment and a vow in line with an increase in costs, but to allow the processor
not to be taken lightly. to unilaterally change Schedule A is unconscionable. Any
contract that allows for such is valueless.
Like some couples at the altar, too often merchant services
professionals sign agreements without understanding the Optionality is never bad
terms, resulting in expensive and painful separations.
Merchant services professionals should understand the In a relationship, each day you may wake up and can
choose to love your partner. Having that optionality
document and partner they are committing to.
is healthy. My wife reminds me there are two people
Love is a necessary but insufficient component for a who have her unconditional love and I am not one of
successful marriage them. Remembering the love we have for each other and
choosing to honor that love with fidelity strengthens our
relationship.
Payments professionals should love their partners,
but love is not enough. Unless both parties work at the
relationship—every day—it will be unfulfilling. To make Merchant services professionals should never sign an
exclusive contract. A merchant services professional may
that type of commitment, you need to understand your
partner and your obligations. choose to send deals exclusively to one processor, and that
may be the best option at the time, but they should not be
contractually obligated to exclusivity.
All too often, contracts have a minimum requirement of
deal count, and if that deal count is not achieved, pricing
changes. While I could understand a tiered pricing As I shared, I am an ordained minister. The ceremony I
performed for my daughter's wedding was legally binding.
schedule based on volume, having a minimum deal count
is not an equitable relationship; it's indentured servitude, I am not an attorney, however. I encourage you to consider
the points I've made with a qualified industry attorney as
which has no place in a merchant services contract.
you contemplate the disparate meanings of this article's
Double coincidence of wants title. Godspeed.
In a good relationship, each party wants the other's
happiness and willingly sacrifices some of their own for As founder of Humboldt Merchant Services, co-founder of Eureka
the betterment of the relationship. Errors should have cure Payments, and a former executive for such payments innovators as
periods and allow for rectification. There is no place in our WePay, a division of JPMorgan Chase, Ken Musante has experience in
industry where contracts should allow for termination, all aspects of successful ISO building. He currently provides consulting
without commission, for small errors. Check your services and expert witness testimony as founder of Napa Payments
contracts and ensure all residuals survive termination and Consulting, www.napapaymentsandconsulting.com. Contact him
with very limited exceptions. at kenm@napapaymentsandconsulting.com, 707-601-7656 or www.
linkedin.com/in/ken-musante-us.

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