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<br />Bank Card Merchant Agreement Page 4 of 8
<br />BCMA-merchant via partner
<br />against each day’s sales transactions ii) against any reserve; or iii) by
<br />making an ACH debit to Merchant’s Account. 20. Reserve; Letter of Credit. As a specifically bargained for
<br />inducement for Processor to enter into this Agreement with Merchant,
<br />Processor at its option reserves the right to i) establish from amounts
<br />payable to Merchant hereunder, and/or cause Merchant to pay to
<br />Processor, a reserve of funds satisfactory to Processor to cover actual or
<br />anticipated fees, liabilities, chargebacks, returns and any other applicable
<br />assessments incurred or expected to be incurred by Processor or
<br />Member Bank related to the Services provided to Merchant; and/or ii)
<br />require Merchant to establish an irrevocable standby letter of credit,
<br />including additional and/or replacement letters of credit if required by
<br />Processor, with a beneficiary designated by Processor, and which are
<br />issued from a financial institution other than Member Bank or any of its
<br />affiliates, that is acceptable to Processor, in a format, with an expiration
<br />date, and in an amount acceptable to Processor in its sole discretion. In
<br />the event Merchant fails to establish, for any reason whatsoever, a
<br />reserve and/or a letter of credit as required above, Processor shall have
<br />all of the rights and remedies available to Processor in this Agreement,
<br />including but not limited to exercising the rights and remedies of
<br />Processor in Section 13. In the event Processor exercises its right to
<br />establish a reserve or require a letter of credit pursuant to this Section,
<br />Merchant may, subject to the following provisions, terminate the
<br />Agreement upon 30 days advance written notice to Processor provided
<br />Processor receives such written notice from Merchant of its intention to so
<br />terminate within 90 days of the date on which Processor establishes the
<br />reserve or requires the letter of credit. Upon Processor's receipt of
<br />Merchant's written notice pursuant to the immediately preceding sentence,
<br />Processor may, at its option, return the reserve to Merchant or waive the
<br />requirement for a letter of credit, and, in the event Processor elects to
<br />return the reserve to Merchant or waive the requirement for a letter of
<br />credit, Merchant shall not have the right to terminate this Agreement
<br />pursuant to this Section and this Agreement shall remain in full force and
<br />effect notwithstanding Merchant's written notice to terminate. Merchant shall not sell, assign, transfer or encumber all or any part of
<br />its interest in the reserve account, if any, or any present or future rights
<br />under this Agreement, including but not limited to, Merchant’s right to
<br />receive any payments or funds. Neither Processor nor Member Bank
<br />shall be obligated to honor any such purported attempt to sell, assign,
<br />transfer or encumber such interest, rights, payments or funds unless
<br />both Processor and Member Bank consent in writing. In the event
<br />Merchant breaches this paragraph, then, in addition to any other rights
<br />and remedies Processor may have under this Agreement and otherwise,
<br />Processor shall have the right, at its option, to withhold any or all funds
<br />or payments which would otherwise be payable to Merchant under this
<br />Agreement until it shall have received instructions concerning the
<br />disposition of such payments or funds, satisfactory in form and
<br />substance to Processor and signed by both Merchant and any purported
<br />assignee. Merchant shall indemnify Processor and hold it harmless from
<br />and against any and all claims, liabilities and damages which may be
<br />asserted against Processor by any purported assignee or any other
<br />person arising out of Merchant’s purported sale, assignment, transfer or
<br />encumbrance of all or any of Merchant’s present or future rights under
<br />this Agreement. 21. Indemnification. A. Subject to the other limitations, terms and conditions of this
<br />Agreement, Processor shall indemnify, defend, and hold harmless
<br />Merchant, and its directors, officers, employees, affiliates and agents
<br />from and against all third party proceedings, claims, losses, damages,
<br />demands, liabilities and expenses whatsoever, including all reasonable
<br />legal and accounting fees and expenses and all reasonable collection
<br />costs, incurred by Merchant, its directors, officers, employees, affiliates
<br />and agents to the extent resulting from or arising out of Processor's gross
<br />negligence, or willful misconduct. B. Merchant shall indemnify, defend, and hold harmless Processor, and
<br />its directors, officers, employees, affiliates and agents from and against
<br />all proceedings, claims, losses, damages, demands, liabilities and
<br />expenses whatsoever, including all reasonable legal and accounting fees
<br />and expenses and all reasonable collection costs, incurred by Processor,
<br />its directors, officers, employees, affiliates and agents resulting from or
<br />arising out of the Services in this Agreement, Merchant’s processing
<br />activities, the business of Merchant or its customers, any sales
<br />transaction acquired by Processor, any noncompliance with the
<br />Operating Regulations (or any rules or regulations promulgated by or in
<br />conjunction with the Associations) by Merchant or its agent (including any
<br />Merchant Supplier), any Data Incident, any infiltration, hack, breach, or
<br />violation of the processing system of Merchant, its Merchant Supplier, or
<br />any other third party processor or system, or by reason of any breach or
<br />nonperformance of any provision of this Agreement on the part of the
<br />Merchant, or its employees, agents, Merchant Suppliers, or customers.
<br />C. The indemnification of each party shall survive the termination of the
<br />Agreement. The indemnified party shall (i) provide prompt written notice
<br />of any claim to the indemnifying party; (ii) cooperate with all reasonable
<br />requests of the indemnifying party; and (iii) surrender exclusive control of
<br />the defense and settlement of any third party claim to the indemnifying
<br />party provided that the indemnifying party will obtain the indemnified
<br />party’s written consent prior to agreeing to any settlement or agreement
<br />that requires the indemnified party to make any admission of fault or to
<br />pay any amounts in connection with such settlement or agreement that
<br />are not fully paid for by the indemnifying party. The indemnified party
<br />shall not unreasonably withhold or delay any consent required under this
<br />Section. The indemnified party may elect to participate in the action with
<br />an attorney of its own choice at its own expense. 22. Review of Settlement Activity and Reports; Notice of Failure by
<br />Processor. Merchant agrees that it shall review all reports, notices, and
<br />invoices prepared by Processor or its agent and made available to
<br />Merchant, including but not limited to reports, notices, and invoices
<br />provided via Processor’s online reporting tool. Processor reserves the
<br />right to send some or all of the reports and/or invoices and/or notices of
<br />any pricing changes permitted under this Agreement via communication
<br />methods utilized as components of its Service Delivery Process which
<br />method Processor may change from time to time with notice via
<br />Processor’s Service Delivery Process. Merchant expressly agrees that
<br />Merchant's failure to notify Processor that Merchant has not received any
<br />settlement funds within five business days from the date that settlement
<br />was due to occur, or fails to reject any report, notice, or invoice within
<br />thirty business days from the date the report or invoice is made available
<br />to Merchant, shall constitute Merchant's acceptance of the same. In the
<br />event Merchant believes that Processor has failed in any way to provide
<br />the Services, Merchant agrees to provide Processor with written notice,
<br />specifically detailing any alleged failure, within 30 days of the date on
<br />which the alleged failure first occurred. 23. Choice of Law; Jurisdiction; Venue. This Agreement shall be
<br />governed by, and construed and enforced in accordance with, the laws
<br />of the State of Ohio without regard to conflicts of law provisions. The
<br />parties hereby consent and submit to service of process, personal
<br />jurisdiction, and venue in the state and federal courts in Cincinnati, Ohio
<br />or Hamilton County, Ohio, and select such courts as the exclusive forum
<br />with respect to any action or proceeding arising out of or in any way
<br />relating to this Agreement, and/or pertaining in any way to the relationship
<br />between Merchant and Processor. MERCHANT AND PROCESSOR
<br />HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY MATTER
<br />UNDER, RELATED TO, OR ARISING OUT OF THIS AGREEMENT OR
<br />ANY TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED
<br />HEREBY. 24. Limit of Liability; Force Majeure. A. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS
<br />AGREEMENT, PROCESSOR DISCLAIMS ALL WARRANTIES,
<br />INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
<br />PARTICULAR PURPOSE. MERCHANT HEREBY ACKNOWLEDGES
<br />THAT THERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE
<br />OF CARDS AND MERCHANT HEREBY ASSUMES ALL SUCH RISKS
<br />EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
<br />B. Without limiting the foregoing, neither party shall be liable for lost
<br />profits, lost business or any incidental, special, consequential or punitive
<br />damages (whether or not arising out of circumstances known or
<br />foreseeable by the other party) suffered by such party, its customers, or
<br />any third party in connection with the Services provided
<br />hereunder. However, nothing in the foregoing sentence is in any way
<br />intended, and shall not be construed, to limit (i) Merchant's obligation to
<br />pay any fees, assessments or penalties due under this Agreement,
<br />including but not limited to those imposed by telecommunications
<br />services providers, VISA, MasterCard and/or Other Networks; or (ii) any
<br />damages due from Merchant related to an early termination of this
<br />Agreement; or (iii) any damages due from Merchant related to the failure
<br />by Merchant to exclusively receive the Services from Processor to the
<br />extent required by the Agreement, and/or (iv) Merchant’s obligation to
<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
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