Contract = Good, Termination Fee = Bad

Merchant Account Contract

A contract does not equate to a cancellation fee and having a contract term end is not really a good thing.

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All merchant accounts have a contract and a term; some merchant account contracts do not have an early termination fee.

A contract is a good thing because it provides protections for businesses and processors by clearly outlining the responsibilities of each party under a merchant processing agreement.

A contract term is also a good thing because without a term a processor would not be obligated to provide processing services for any length of time, and most businesses would find it very disruptive to have the ability to accept credit cards terminated without warning.

A fee to cancel a contract before the term expires is a bad thing. Contracts are terms are unavoidable, but early termination fees should be avoided whenever possible.

For example, CardFellow does not allow processors to charge businesses a fee to cancel a contract regardless of the term, but all processors within CardFellow's marketplace require businesses to sign a contract that dictates the details of the merchant service agreement.


Addressing Confusion

The ideal merchant account for many businesses is one that can be cancelled at any time without penalty. Business people and processing professionals alike often refer to this type of merchant account as not having a contract, or as having a month-to-month agreement. Both of these declarations are incorrect and create confusion regarding the true nature of merchant account agreements.

To learn why, we need to look at the actual meaning of the key phrases "contract", "term" and "termination fee."

Contract

A contract is an agreement entered into by two or more parties with the intention of creating a legal obligation.

All merchant accounts have contacts (usually referred to as "Merchant Processing Agreement" or "Merchant Services Agreement") because the contract outlines the responsibilities that the processor and the business have to one another.

Term

A term is the period of time during which all or part of a contract is in effect.

A merchant account contract remains in effect for as long as a business is processing. If a contract term expires, the processor would no longer be obligated to provide credit card processing services for the business.

Termination Fee

A termination fee is a charge levied when a party cancels or dissolves a contract prior to the end of the contract term.

The termination fee is the source of the issue, and it is what you want to avoid when entering into a merchant services agreement.

Putting it All Together

A merchant account contract always exists, and it dictates the term of the agreement and the termination fee. For example, which of the following options would you rather have?

  • A.) A merchant account contract that has a month-to-month term and a $500 termination fee
  • B.) A merchant account contract that has a 5-year term that automatically renews and a $0 termination fee

It would cost $500 to cancel Merchant Account A regardless of when, and Merchant Account B could be cancelled at any time without penalty.

No Contract Credit Card Processing

All credit card processors have a contract. What people are *really* looking for when searching for small business credit card processing without a contract is a credit card processor that does not charge a termination fee.

Month-to-Month Contracts

The saying "month-to-month contract" is typically used to refer to a contract that does not have a termination fee. The term of a contract (how long it is effective) is inconsequential if there is no penalty to cancel the agreement.

Contract Term

All merchant account contracts will declare the length of the contract term in one of the following three ways.

Open-Ended

In very rare cases a merchant account contract term will commence once the agreement becomes effective, and will continue until cancelled by the processor or business. In the case of an open-ended term, the business would have to pay a termination fee (if one exists) regardless of when it cancels the agreement.

An example of how an open-ended term may be worded in a contract is as follows:

"The initial term of this agreement shall commence after it becomes effective, and it shall continue until we or you terminate this Agreement upon written notice to the other."

Fixed

A fixed contract term applies an initial term to the processing agreement so that the processor can charge a termination fee (if one exists) if a business cancels the agreement prior to the end of the term. Once a business fulfills the initial term, it would be able to cancel the contract without being assessed a termination fee.

An example of the language used for a fixed contract term taken from First Data's Program Guide is as follows:

"... In the event that Client terminates this Agreement within three (3) years from the date of approval by First Data Merchant Services ... Client will be charged a fee for such early termination, if so indicated on the Application..."

What is important to realize here is that the contract term remains in effect even after the first three years. Only the processor's ability to levy a termination fee expires.

Automatically Renewing

Contract terms that automatically renew begin with an initial term, and then automatically renew for successive terms unless they are cancelled within a certain window of time. Automatically renewing contract terms are very common, and they make it difficult for a business to avoid being charged a termination fee, if one exists.

An example of the language used in a merchant account contract for an automatically renewing term is as follows:

"The initial term of this Merchant Agreement shall be for the term of three (3) years (the "Initial Term") ... this Merchant Agreement will automatically renew for successive one (1) year periods ... unless a party provides the other parties with notice of its intent not to renew this Merchant Agreement at least ninety (90) days prior to the expiration of the then current term."

The initial term of this contract is three years, and it automatically renews thereafter for another year unless the business cancels the contract ninety days prior to the expiration of the current term.

Cancellation Fee / Early Termination Penalty

Termination fees are not created equal, and processors have different motives (some more reputable than others) for charging them.

Why Cancellation Fees Are Charged

Processors charge termination fees for a number of reasons, but the primary function of a termination fee is to guard against losses or to generate profit.

For example, there is a real cost that processors incur to underwrite, board and maintain a merchant account. If a business cancels its merchant account before the processor generates enough profit to cover underwriting expense, the processor will lose money. A cancellation fees guards against this type of loss.

Termination fees also serve as a barrier to attrition (when a business closes it merchant account). A termination fee is one of many tactics that a processor can employ to make it difficult for its clients to switch to a competitor.

Power to Waive Fees

The credit card processing industry is a virtual web of processors, acquirers, independent sales organizations, and independent agents collectively referred to as merchant service providers.

Merchant service providers contract with one another to provide services, and not all merchant service providers have the power to waive termination fees.

Location Within Paperwork

The majority of merchant account contracts declare the amount of a termination fee within the fine print of the agreement. However, some processors such as First Data declare the amount of the termination fee on the application portion of paperwork, and then refer to the fee from within the merchant account contract.

Don't assume that a processor does not charge a termination fee simply because one is not visible on the merchant account application. Termination fees are often buried deep with the fine print of the merchant processing agreement. If you don't see a termination mentioned in either the application or the agreement, ask the processor where to look to verify the amount of the termination fee, if any.

Flat

A flat termination fee remains the same regardless of when a merchant account contract is terminated.

Prorated

A prorated termination fee will decrease over time. The following is an example of a prorate termination fee set forth in a merchant account contract:

"Merchant shall pay ... the sum of (i) $350.00 if terminated before completion of the first year of the Initial Term; or (ii) $250.00 if terminated after completion of the first year of the Initial Term ..."

Liquidated Damages — Based on Lost Profit

Although any type of termination fee is *technically* a charge for liquidated damages, we reserve the name for a particular type of termination fee that is especially damaging and controversial.

Some processors, such as Pivotal Payments base the termination fee on lost profits rather than a flat dollar amount. For example, if a processor is making $150 a month from a business's merchant account, and the business cancels the account ten months prior to the end of the term, the business would have to pay a termination fee of $1,500.

Termination fees of any kind should be avoided when possible, but termination fees based on lost profits should be avoided without question.

The following is an example of the language used in a merchant account contract for a termination fee that is based on lost profit taken from Pivotal Payments' agreement:

"Merchant shall pay ... damages ("Damages") representing the greater of: (a) five hundred (500) dollars; or (b) the amount determined by computing the number of months remaining in the Agreement, and multiplying that number by the average monthly fees paid by Merchant."

Getting out of a merchant account contract

The goal in getting out of a merchant account contract is to cancel the agreement without being subject to a termination fee. Since the termination fee is just one clause within the contract, many variables of your individual situation will determine whether the termination fee clause may be nullified.

Your lawyer is the best place to get advice about getting out of a merchant account contract without having to pay a termination fee.

Enforceable

Merchant account contracts are like any other in that the degree to which they can be enforced depends on a number of variables pertaining to your individual situation. Your lawyer will be able to examine your processor's contract to determine whether the termination fee is enforceable.

Rate & Fee Changes

A termination may be waived if rates and fees are increased during the term of a merchant account contract.

State Laws

State and local laws impact merchant account contracts. Check the laws in your state regarding early termination and cancellation fees.

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4 Responses to Contract = Good, Termination Fee = Bad

  1. Ben says:

    Hi Karen,

    Often times a processor is not able to approve a merchant account application without supporting documentation that validates a business and justifies risk.

    If you never returned tax returns requested by the processing bank, it’s possible that your new account was never actually approved, and therefore the agreement was never executed. However, that’s speculation, and your new representative doesn’t seem very forthright or willing to tell you one way or another if your account is active. You’ll know if your new account is in fact active if you see fees being deducted from your business checking account.

    I have never seen a processing agreement that provides a grace period during which a business can cancel without being charged a cancellation fee, and we’ve pretty much seen them all here at CardFellow.

    Each processing bank has a different agreement and terms, so I can’t tell you one way or another whether the cancellation fee will hold up. I can tell you that some agreements don’t execute until you actually process a transaction.

    For example, TransFirst’s merchant agreement states that, “This Merchant Agreement becomes effective on the date Bank processes the first Transaction for Merchant (including a test Transaction).”

    However, most agreements become effective when you sign the application, or when the processing bank approves the application. For example, First Data’s merchant agreements states, “This Merchant Agreement becomes effective on the date Bank processes the first Transaction for Merchant (including a test Transaction).”

    As noted above, the best course of action when dealing with legal agreements is to consult your lawyer.

  2. Karen Schwab says:

    Is there any kind of grace period. I signed a contract with a new merchant service company and then within 3 business days I found out I had a cancellation fee from my existing. I let my sales rep know immeditely and he said I could not cancel. I had not even sent all the paper work into him that was required. ( tax returns). I did sent a certified letter to the company and have not used them to process any charges.

  3. Jeanie Waugh says:

    I was totally lied to by a solicitation from Pivotal Payments. The salesman told me there was no termination fees and that Pivotal would process our credit cards for less than our current processor. They called constantly until I agreed to let them process… They sent a fax for me to sign, they said it was so they could access my bank account for customer payments. I never processed one payment before I was told I had signed a 3 year contract and would have to pay $500.00 to get out of it. Is that even legal? Never believe anyone until the lawyers tell me to. And how do you make these people stop soliciting you when they won’t listen. Any suggestions would be appreciated. Thanks

    • Ben says:

      Hi Jeanie, I’m sorry to hear about your ordeal with Pivotal Payments. It’s unfortunate, but there are certainly salespeople and processors that employ questionable tactics. As this article outlines, termination fees are an especially volatile issue because many processors use the fee to generate profit.

      If you never used the account to process a single payment, the agreement with Pivotal may never have actually commenced. You should also look at the laws in your state regarding termination fees. For example, Arkansas limits termination fees to $50.

      Given that the termination fee Pivotal is charging is $500, a call to your lawyer is the best course of action. Let him/her look over the agreement to see if you can avoid the cancellation fee.

      This situation is exactly why we don’t allow processors to charge termination fees on the quotes they offer through CardFellow. If you’re ever in the market for another processor, we will be happy to help you review offers and agreements. It’s our job to make sure you never have to deal with a hassle such as this again.

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