|
<br />Bank Card Merchant Agreement Page 5 of 8
<br />BCMA-merchant via partner
<br />indemnify Processor pursuant to section 21 .In no event shall Processor
<br />be liable for any damages or losses (i) that are wholly or partially caused
<br />by the Merchant, or its employees, agents, or Merchant Suppliers that
<br />should have been reported to Processor pursuant to Section 22, (ii) that
<br />first occurred, whether or not discovered by Merchant, more than 30 days
<br />prior to Processor's receipt of written notice from Merchant or (iii) that
<br />were caused due to errors in data provided by Merchant to Processor.
<br />C. Processor's liability related to or arising out of this Agreement shall
<br />in no event exceed an amount equal to the lesser of (i) actual monetary
<br />damages incurred by Merchant or (ii) fees paid to and retained by
<br />Processor for the particular Services in question for the three calendar
<br />months immediately preceding the date on which Processor received a
<br />written notice from Merchant detailing Processor's material
<br />nonperformance under this Agreement. For avoidance of doubt, the cap
<br />on Processor’s liability set forth in the immediately preceding sentence
<br />will not limit Processor’s obligation to settle funds due to Merchant under
<br />this Agreement.
<br />D. Processor shall not be deemed to be in default under this
<br />Agreement or liable for any delay or loss in the performance, failure to
<br />perform, or interruption of any Services to the extent resulting from a
<br />Force Majeure Event. Upon such an occurrence, performance by
<br />Processor shall be excused until the cause for the delay has been
<br />removed and the Processor has had a reasonable time to again provide
<br />the Services. No cause of action, regardless of form, shall be brought by
<br />either party more than 1 year after the cause of action arose, other than
<br />one for the nonpayment of fees and amounts due Processor under this
<br />Agreement. Any restriction on Processor’s liability under this Agreement
<br />shall apply in the same manner to Member Bank. In the event that
<br />Merchant has a claim against Member Bank in connection with the
<br />Services provided under this Agreement, Merchant shall proceed against
<br />Processor (subject to the limitations and restrictions herein), and not
<br />against Member Bank, unless otherwise specifically required by the
<br />Operating Regulations.
<br />E. Processor and Merchant recognize and agree that any limitations of
<br />liability set forth in this Agreement are fair and reasonable. 25. Controlling Documents. This Agreement (including all addenda
<br />and schedules and exhibits hereto and all documents and materials
<br />referenced herein) supersedes any and all other agreements, oral or
<br />written, between the parties hereto with respect to the subject matter
<br />hereof, and sets forth the complete and exclusive agreement between
<br />the parties with respect to the Services and, unless specifically provided
<br />for herein, other services are not included as part of this Agreement. If
<br />there is a conflict between the Bank Card Merchant Agreement and an
<br />addendum or schedule or exhibit hereto, the addendum or schedule or
<br />exhibit shall control. If there is a conflict between the Rules Summary
<br />and this Agreement, the Rules Summary shall control. If there is a
<br />conflict between Operating Regulations and this Agreement, the
<br />Operating Regulations shall control. If there is a conflict between the
<br />Operating Regulations and the Rules Summary, the Operating
<br />Regulations shall control. 26. Regulatory Remedial Right. Processor may suspend or cease
<br />providing any Service in this Agreement if: (i) in Processor’s reasonable
<br />opinion, such Service, or the business of Merchant, violates or would
<br />violate the Operating Regulations, or any federal, state or local statute
<br />or ordinance, or any regulation, order or directive of any governmental
<br />agency or court; (ii) Merchant is accused by any federal, state or local
<br />jurisdiction of a violation of any applicable statute or ordinance or any
<br />regulation, order or directive of any governmental agency or court, or if
<br />Processor reasonably believes, based upon the opinion of its legal
<br />counsel, that Merchant may be in violation of any of the foregoing; and/or
<br />(iii) in Processor’s reasonable opinion, Merchant’s activities may result
<br />in increased regulatory scrutiny or reputational harm. Processor may
<br />also suspend or cease providing any Service in this Agreement to
<br />Merchant if directed to do so by Member Bank. Should Merchant not
<br />process sales transactions through Processor's system for a p eriod of
<br />one year or more, Processor may remove Merchant from Processor’s
<br />systems without notice, without relieving Merchant from any of
<br />Merchant's obligations under this Agreement. 27. Conversion; Deconversion. Merchant shall take all necessary
<br />steps to, and shall, promptly convert to Processor’s system for the
<br />Services in this Agreement not later than 90 days after the execution of
<br />this Agreement by Processor. Processor agrees that it shall not charge
<br />Merchant for Processor’s standard and customary internal testing and
<br />conversion preparation only, in connection with Merchant’s initial
<br />conversion to Processor’s system at the commencement of this
<br />Agreement, and as determined by Processor in its sole reasonable
<br />discretion. The foregoing shall not be deemed to limit Merchant’s
<br />obligation to pay any third party fees and expenses incurred by
<br />Processor in connection with Merchant’s conversion, which shall remain
<br />the sole responsibility of Merchant. Merchant agrees to be responsible
<br />for all direct and indirect costs (including but not limited to those incurred
<br />by Processor, its affiliates and/or agents) in connection with and/or
<br />related to Merchant's conversion from Processor at the termination of
<br />this Agreement and/or related to any conversion or programming effort
<br />affecting the Services after Merchant's initial conversion to Processor. 28. Confidential Information.
<br /> (a) Confidential Information Supplied by Processor. Merchant
<br />acknowledges that Processor will be providing Merchant with certain
<br />confidential information, including but not limited to, this Agreement ,
<br />third party audit reports, and information relating to the finances,
<br />systems, methods, techniques, programs, devices and operations of
<br />Processor and/or the Associations. Merchant shall not disclose any
<br />such confidential information to any person or entity (other than to those
<br />employees and Merchant Suppliers of Merchant who participate directly
<br />in the performance of this Agreement and need access to such
<br />information). Without limiting the foregoing, Merchant agrees that it will
<br />fully comply with any and all confidentiality and security requirements of
<br />the USA Patriot Act (or similar law, rule or regulation), VISA,
<br />MasterCard, Discover, and/or Other Networks.
<br /> (b) Confidential Information Supplied by Merchant. Processor
<br />acknowledges that Merchant will be providing Processor with certain
<br />confidential information, including information relating to the methods,
<br />techniques, programs, devices and operations of Merchant. Such
<br />confidential information does not include transaction information which
<br />has been de-identified or aggregated. Processor will not disclose
<br />confidential and proprietary information about Merchant to any person
<br />or entity (other than to those employees and agents of Processor who
<br />participate directly in the performance of this Agreement and need
<br />access to such information). Merchant acknowledges receipt of
<br />Processor’s privacy notice (“Privacy Notice”). Merchant should direct
<br />any questions or requests for another copy of the Privacy Notice to a
<br />Processor customer service representative or Merchant’s primary
<br />relationship manager, if applicable. Notwithstanding anything to the
<br />contrary in the Privacy Notice or this Agreement, Processor may use,
<br />disclose, share, and retain any information provided by Merchant and/or
<br />arising out of the Services, during the term and thereafter,: (a) with
<br />Merchant's franchisor, Merchant's franchisee(s), association(s) to which
<br />Merchant belongs and/or belonged as of the commencement of this
<br />Agreement, (b) with any affiliate of Merchant; (c) in response to
<br />subpoenas, warrants, court orders or other legal processes; (d) in
<br />response to requests from law enforcement agencies or government
<br />entities; (e) to comply with applicable laws, regulations, or Operating
<br />Regulations; (f) with Processor’s affiliates, partners and agents; (g) to
<br />perform analytic services for Merchant, Processor and/or others
<br />including but not limited to analyzing, tracking, and comparing
<br />transaction and other data to develop and provide insights for such
<br />parties as well as for developing, marketing, maintaining and/or
<br />improving Processor’s products and services; and/or (h) to offer or
<br />provide the Services hereunder.
<br /> (c) Miscellaneous. The parties acknowledge that the injury that
<br />would be sustained by the party disclosing information as a result of the
<br />violation of this Section 28 cannot be compensated solely by money
<br />damages, and therefore agrees that the disclosing party shall be entitled
<br />to seek injunctive relief and any other remedies as may be available at
<br />law or in equity in the event of a violation of the provisions contained in
<br />this Section 28. The restrictions contained in this Section 28 shall not
<br />apply to any information which becomes a matter of public knowledge,
<br />other than through a violation of this Agreement or other agreements
<br />between the parties.
<br /> (d) Publicity. Merchant and Processor agree that they will work
<br />together to issue a mutually agreeable joint press release after the
<br />execution of this agreement and/or after the conversion of Merchant to
<br />Processor’s Services. In any event, Merchant acknowledges and agrees
<br />that Processor may make public the execution of this Agreement by
<br />Merchant and/or any of Merchant’s affiliates, and/or the Services that
<br />may be or have been provided under the Agreement. Merchant agrees
<br />that Processor may include Merchant’s name and logo on a list of
<br />Processor’s customers, which may be made public. Merchant agrees
<br />that, upon Processor’s request, Merchant will provide testimonial
<br />information related to the Services received by Merchant hereunder.
<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
|