|
<br />Bank Card Merchant Agreement Page 3 of 8
<br />BCMA-merchant via partner
<br />the direct result of the gross negligence or willful misconduct of
<br />Processor. Such amounts include, but are not limited to, fees, fines,
<br />assessments, sponsorship fees, penalties, loss allocations, etc. Any
<br />changes or increases in such amounts shall automatically become
<br />effective upon notice to Merchant via Processor’s Service Delivery
<br />Process and shall be immediately payable by Merchant when assessed
<br />by Processor. In the event of a Float Event, Processor reserves the right
<br />to assess to Merchant, and Merchant shall pay to Processor, a cost of
<br />funds associated with the Float Event (which Processor may at its option
<br />assess as a transaction surcharge), the amount of which shall be
<br />determined by Processor in its reasonable discretion, and which may be
<br />changed by Processor from time to time, and such cost of funds shall be
<br />effective as of the start of the Float Event and shall be immediately
<br />payable by Merchant when assessed by Processor. 12. Exclusivity. Processor and Member Bank reserve the right to enter
<br />into other agreements pertaining to the Services with others including
<br />without limitation other merchants. The parties agree that Processor shall
<br />be the exclusive provider of the Services to Merchant at all of its locations.
<br />Merchant agrees that Processor shall be the exclusive provider to
<br />Merchant, at all of Merchant’s locations, of the Services and any services
<br />that are the equivalent of the Services available from another provider,
<br />including any Services or their equivalents that relate to any Cardholder
<br />transactions originating at or with a Merchant Supplier that incorporate
<br />Merchant’s goods and/or services. 13. Default. The following events shall be considered an "Event of
<br />Default":
<br />(i) Merchant becomes subject to any voluntary or involuntary bankruptcy,
<br />insolvency, reorganization or liquidation proceeding, a receiver is
<br />appointed for Merchant, or Merchant makes an assignment for the benefit
<br />of creditors, or admits its inability to pay its debts as they become due; or
<br />(ii) Merchant fails to pay or reimburse the fees, expenses or charges
<br />referenced herein when they become due; or (iii) Merchant is in default of any terms or conditions of this Agreement
<br />whether by reason of its own action or inaction or that of another; or
<br />(iv) Processor reasonably believes that there has been a material
<br />deterioration in Merchant's financial condition; or (v) any standby letter of credit, if and as may be required pursuant to
<br />Section 20, will be cancelled, will not be renewed, or is not in full force
<br />and effect; or
<br />(vi) Merchant ceases to do business as a going concern, or there is a
<br />change in ownership of Merchant which changes the identity of any
<br />person or entity having, directly or indirectly, more than 30% of either the
<br />legal or beneficial ownership of Merchant.
<br />Upon the occurrence of an Event of Default, Processor may at any time
<br />thereafter terminate this Agreement by giving Merchant written notice
<br />thereof. However, except in instances where immediate termination is
<br />required by any Association or if Member Bank and/or Processor
<br />reasonably believe that the Event of Default poses material risk to either
<br />of them or involves a violation of applicable law, Merchant will have 30
<br />days following Processor’s notice to cure an Event of Default under
<br />Section (ii), (iii), (iv) or (v) prior to termination under this section.
<br />Termination of Merchant for any reason shall not relieve Merchant from
<br />any liability or obligation to Processor. Merchant shall also reimburse
<br />Processor for any damage, loss or expense incurred by Processor as a
<br />result of a breach by Merchant, including any damages set forth in any
<br />addendum and/or schedule and/or exhibit hereto and including all past
<br />due, unpaid and/or future invoices for services rendered by Processor in
<br />connection with this Agreement. All such amounts shall be due and
<br />payable by Merchant upon demand. Processor shall also have the option
<br />to require Merchant to reacquire all outstanding sales transactions
<br />acquired by Processor hereunder. 14. Processor Nonperformance: In the event Merchant, in good faith,
<br />reasonably believes that Processor has substantially failed to provide
<br />the Services, other than as a result of (i) a failure by Merchant (or any
<br />Merchant Supplier, or other third party acting at the request of or on
<br />behalf of Merchant) to perform any obligation under the Agreement, or
<br />to provide accurate data to Processor upon which Processor is
<br />dependent to provide accurate and timely Services to Merchant, or (ii)
<br />any Force Majeure Event, Merchant agrees to notify Processor in writing
<br />within 30 days of the date upon which such failure first occurred.
<br />Merchant agrees that such notice shall be sent in accordance with the
<br />terms of this Agreement, and shall specifically describe the nature of
<br />such failure by Processor, specify the date such failure first occurred and
<br />specifically reference this section. Processor will attempt to resolve such failure within 30 days of
<br />Processor's actual receipt of such notice from Merchant. Should
<br />Processor not resolve such failure within the cure period described in
<br />the foregoing sentence, Merchant may terminate this Agreement upon
<br />90 days prior written notice to Processor, provided Processor actually
<br />receives such notice of termination within 30 days after the end of such
<br />cure period. 15. Taxes. Any sales, use, excise or other taxes (other than
<br />Processor's income taxes) payable in connection with or attributable to
<br />the Services provided to the Merchant per this Agreement shall be paid
<br />by Merchant. Processor may, but shall not have the obligation to, pay
<br />such taxes In the event Processor pays such taxes, Merchant shall
<br />immediately reimburse Processor or Processor may, at Processor's sole
<br />option, charge Merchant's Account. 16. Binding on Successors; Assignment. This Agreement and all of
<br />the provisions hereof shall be binding upon and inure to the benefit of the
<br />parties hereto and their respective heirs, administrators, successors,
<br />transferees and assignees. Neither this Agreement nor any interest
<br />herein may directly or indirectly be transferred or assigned by Merchant,
<br />in whole or in part, without the prior written consent of Processor, which
<br />will not be unreasonably delayed or withheld. Merchant will remain liable
<br />for any amounts owed under this Agreement after an unauthorized
<br />transfer or assignment by Merchant, even if Processor continues to
<br />provide Services to such transferee or assignee. This Agreement is for
<br />the benefit of, and may be enforced only by, Processor and Merchant and
<br />their respective successors and permitted transferees and assignees,
<br />and is not for the benefit of, and may not be enforced by, any third party. 17. Notices. All notices, requests, demands and other communications
<br />to be delivered hereunder unless specified otherwise herein shall be in
<br />writing and shall be delivered by nationally recognized overnight carrier,
<br />registered or certified mail, postage prepaid, to the following addresses: if to Processor: Worldpay, LLC, 8500 Governors Hill Drive, Mail
<br />Drop 1GH1Y1, Symmes Township, OH 45249-1384, Attention: General
<br />Counsel/Legal Department; if to Merchant: to the Merchant address provided above, Attention
<br />President/Owner; or to such other address or to such other person as
<br />either party shall have last designated by written notice to the other party. Notices, etc., so delivered shall be deemed given upon receipt. 18. Unenforceable Provision. If any term or provision of this
<br />Agreement or any application thereof shall be invalid or unenforceable,
<br />the remainder of this Agreement and any other application of such term
<br />or provision shall not be affected thereby. 19. Payment. Merchant shall always maintain an open Account.
<br />Merchant irrevocably authorizes Processor to debit and/or credit the
<br />Account to settle any and all fees and other amounts due Processor
<br />under this Agreement, and such authority shall remain in effect for a
<br />period of one (1) calendar year following the date of termination of this
<br />Agreement, regardless of whether Merchant has notified Processor of an
<br />Account Change as defined below. Merchant shall always maintain the
<br />Account with sufficient cleared funds to meet its obligations under this
<br />Agreement. In the event Merchant desires an Account Change,
<br />Merchant shall give Processor 30 days prior written notice in accordance
<br />with the provisions of Section 17 of any such change, and Processor shall
<br />use reasonable commercial efforts to effect such Account Change;
<br />however, such Account Change shall not be effective until the date on
<br />which Processor actually makes such Account Change on Processor’s
<br />system. In no event shall Processor have any liability for any amounts
<br />directed to an Account that has been designated by any purported
<br />representative of Merchant or its Merchant Supplier at any time during
<br />the term of this Agreement, regardless of any Account Change. All
<br />amounts due Processor under this Agreement shall be paid without set-
<br />off or deduction, and shall be due from Merchant as of the date Processor
<br />originates an ACH debit transaction record to Merchant's Account. Any
<br />fees not collected from Merchant by Processor when due shall bear
<br />interest at one (1) percentage point per month but in no event more than
<br />the highest rate permitted by law. The acceptance by Processor,
<br />Processor's affiliate or other financial institution of Merchant's closing (or
<br />termination of) its Account shall not constitute a mutually agreed upon
<br />termination of this Agreement. Without limiting the generality of any other
<br />provision of this Agreement, Processor and/or Member Bank are hereby
<br />authorized by Merchant to charge amounts due under this Agreement i)
<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
|