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<br />Bank Card Merchant Agreement Page 6 of 8
<br />BCMA-merchant via partner
<br />29. Financial Statements. If at any time Merchant is not a publicly
<br />traded company, Merchant shall provide Processor with an audited
<br />financial statement for Merchant's most recent fiscal year end and/or
<br />quarterly financial statements prepared and certified by Merchant's chief
<br />financial officer within 15 days of Processor’s request therefore. 30. No Waiver. If either party waives in writing an unsatisfied condition,
<br />representation, warranty, undertaking or agreement (or portion thereof)
<br />set forth herein, the waiving party shall thereafter be barred from
<br />recovering, and thereafter shall not seek to recover, any damages,
<br />claims, losses, liabilities or expenses, including, without limitation, legal
<br />and other expenses, from the other party in respect of the matter or
<br />matters so waived. Except as otherwise specifically provided for in this
<br />Agreement, the failure of any party to promptly enforce its rights herein
<br />shall not be construed to be a waiver of such rights unless agreed to in
<br />writing. Any rights and remedies specifically provided for in any
<br />addendum or schedule or exhibit are in addition to those rights and
<br />remedies set forth in this Agreement and/or available to Processor at law
<br />or in equity. 31. Compliance with Law.
<br />Merchant represents and warrants to Processor that it will comply with all
<br />applicable federal, state and local laws and regulations in connection with
<br />Merchant’s receipt of the Services and/or applicable to Merchant’s
<br />business operations. Processor will comply with federal, state and local
<br />laws and regulations applicable directly to Processor in its provision of
<br />the Services. 32. Security, Data Incidents. Merchant will be solely responsible for
<br />the security, quality, accuracy, and adequacy of all transactions and
<br />information supplied hereunder, and will establish and maintain adequate
<br />audit controls to monitor the security, quality, maintenance, and delivery
<br />of such data. Without limiting the generality of the foregoing, Merchant
<br />represents and warrants to Processor that it has implemented and will
<br />maintain secure systems for maintaining and processing information and
<br />for transmitting information to Processor. Processor shall have no liability
<br />whatsoever for the security or availability of any communications
<br />connection used in connection with the Services provided hereunder.
<br />Merchant acknowledges that Processor is responsible only for the
<br />security of its own proprietary systems, and not for the systems of any
<br />third party, including without limitation any Merchant Supplier of
<br />Merchant. Merchant shall notify Processor immediately if Merchant
<br />becomes aware of or suspects a Data Incident. Merchant agrees to fully
<br />cooperate with Processor and any Association with respect to any
<br />investigation and/or additional requirements related to a suspected Data
<br />Incident. 33. Audits. At any reasonable time upon reasonable notice to
<br />Merchant, Merchant shall allow auditors, including the auditors of any
<br />Association or any third party designated by Processor or the applicable
<br />Association, to review the files held and the procedures followed by
<br />Merchant at any or all of Merchant’s offices or places of business. Should
<br />Processor conduct an audit which is not required by the Operating
<br />Regulations or is not requested by an Association, such audit will be at
<br />Processor’s sole expense; otherwise the audit shall be at Merchant’s
<br />expense. Merchant will assist such auditors as may be necessary for
<br />them to complete their audit. In the event that a third-party audit is
<br />requested by an Association, and/or required by the Operating
<br />Regulations, Processor may, at its option, and at Merchant’s sole
<br />expense, either retain a third party to perform the audit, or require that
<br />Merchant directly retain a specific third party auditor. If Processor
<br />requires that Merchant directly retain the auditor, Merchant shall arrange
<br />immediately for such audit to be performed, and will provide Processor
<br />and the Associations with a copy of any final audit report.
<br />34. System Requirements and Upgrades. Merchant agrees that the
<br />Services shall be provided in accordance with Processor's then current
<br />systems, standards and procedures and that Processor shall not be
<br />required to perform any special programming, to provide any special
<br />hardware or software or to implement any other system, program or
<br />procedure for Merchant. Unless otherwise agreed in writing by
<br />Processor, all sales transaction, settlement and other data and
<br />information used in connection with the Services shall be provided to
<br />Processor in Processor's then current data formats and by means of
<br />Processor's then current telecommunications configurations and
<br />protocols. Processor may make changes in the Services based upon, but
<br />not limited to, technological developments, legislative or regulatory
<br />changes, or the introduction of new services by Processor. Merchant
<br />shall comply with all time deadlines, equipment and software
<br />maintenance and upgrading requirements to the extent required by the
<br />Associations and/or Operating Regulations. Merchant shall use best
<br />efforts to comply with all other time deadlines, equipment and software
<br />maintenance and upgrading requirements which Processor may
<br />reasonably impose on Merchant from time to time. 35. Title to the Services. Merchant agrees it is acquiring only a
<br />nontransferable, non-exclusive right to use the Services. Processor
<br />shall at all times retain exclusive title to the Services, including without
<br />limitation, any materials delivered to Merchant hereunder and any
<br />invention, development, product, trade name, trademark, service mark,
<br />software program, or derivative thereof, developed in connection with
<br />providing the Services or during the term of this Agreement. 36. Limited Acceptance. If so indicated below, Merchant
<br />acknowledges and agrees that it wishes to be a Limited Acceptance
<br />merchant, which means that Merchant has elected to accept only certain
<br />VISA/MasterCard card types as indicated below, or via later notification.
<br />Merchant further acknowledges and agrees that Processor has no
<br />obligation other than those expressly provided under the Operating
<br />Regulations and applicable law as they may relate to limited acceptance
<br />and that Processor’s obligations do not include policing card types at t he
<br />point of sale. As a Limited Acceptance Merchant, Merchant will be solely
<br />responsible for the implementation of its decision for Limited
<br />Acceptance. Merchant will be solely responsible for policing, at the point
<br />of sale, the card type(s) of transactions it submits for processing by
<br />Processor. Should Merchant submit a transaction for processing for a
<br />card type it has indicated it does not wish to accept, Processor may
<br />process that transaction and Merchant will pay the applicable fees,
<br />charges, and assessments associated with that transaction. For
<br />Merchant’s convenience, a general description of VISA/MasterCard
<br />card types are:
<br />a. Consumer Credit - a consumer credit card issued by a U.S. Issuer
<br />or a commercial credit card issued by a non-U.S. Issuer; this category
<br />does not include VISA or MasterCard branded signature-based debit
<br />cards.
<br />b. Consumer Debit - a VISA or MasterCard branded signature -
<br />based debit card (including certain stored-value and prepaid cards).
<br />c. Commercial - a VISA or MasterCard branded credit card issued
<br />by a U.S. Issuer that bears the descriptive term “Business Card”,
<br />“Corporate Card”, “Purchasing Card”, “Fleet Card”, or similar descriptive
<br />term indicated pursuant to the Operating Regulations.
<br />Only if checked below, Merchant wishes to be a Limited Acceptance
<br />Merchant, which means that Merchant will accept only the
<br />VISA/MASTERCARD card types indicated below:
<br /> VISA Credit Cards
<br /> VISA Debit Cards (signature based)
<br /> MasterCard Credit
<br /> MasterCard Debit Cards (signature based) 37. Security Interest. This Agreement will constitute a security
<br />agreement under the Uniform Commercial Code. Merchant grants to
<br />Processor a security interest in all accounts owned or controlled by
<br />Processor at Member Bank that are funded with settlement amounts,
<br />including the Reserve Account, and the proceeds thereof (collectively,
<br />the “Secured Assets”), to secure all of Merchant's obligations under this
<br />Agreement. With respect to such security interest, Processor will have
<br />all rights afforded under the Uniform Commercial Code, any other
<br />applicable law, and in equity. In addition to the security interest in the
<br />Secured Assets, Processor shall have a contractual right of setoff
<br />against the Secured Assets. Every such right of setoff shall be deemed to have been exercised
<br />immediately upon the occurrence of an Event of Default hereunder
<br />without any action by Processor or notation in the Processor’s records,
<br />although Processor may enter such set off on its books and records at
<br />a later time. Merchant warrants and represents that no other person or
<br />entity has a security interest in the Secured Assets. If a bankruptcy
<br />proceeding is filed by or against Merchant under the Bankruptcy Code
<br />(whether the petition is filed voluntarily and/or involuntarily), it waives
<br />any applicable protection related to the automatic stay provisions of 11
<br />U.S.C. §362 (or any replacement section) and consents to an
<br />appropriate reserve of funds being established between the parties
<br />pursuant to this Agreement or by Court Order.
<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
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