|
<br />Bank Card Merchant Agreement Page 7 of 8
<br />BCMA-merchant via partner
<br />38. Modification of Agreement. Except as provided in this
<br />Agreement, this Agreement including any addendum or schedule or
<br />exhibit hereto shall only be modified or amended by an instrument in
<br />writing signed by Merchant and Processor. Any changes, additions,
<br />stipulations or deletions, including lining out, by Merchant, except where
<br />indicated by a space to be filled in (e.g., the space for Merchant’s name
<br />and address), shall not be deemed to be agreed to or binding upon
<br />Processor unless agreed to in writing in the form of an amendment
<br />signed by each party hereto. Merchant agrees that Processor may
<br />amend this Agreement upon notice to Merchant if such amendment is a
<br />requirement of applicable law or an Association. 39. Headings and Construction. The headings used in this
<br />Agreement are inserted for convenience only and will not affect the
<br />interpretation of any provision. Merchant and Processor each
<br />acknowledge that the limitations and exclusions contained in this
<br />Agreement have been the subject of active and complete negotiation
<br />between the parties and represent the parties’ voluntary agreement.
<br />The parties agree that the terms and conditions of this Agreement shall
<br />not be construed in favor of or against any party by reason of the extent
<br />to which any party or its professional advisors participated in the
<br />preparation of this document. 40. Authorization. Each of the parties hereto represents and warrants
<br />on behalf of itself that it has full power and authority to enter into this
<br />Agreement; that the execution, delivery and performance of this
<br />Agreement has been duly authorized by all necessary corporate, limited
<br />liability company or partnership or other appropriate authorizing actions;
<br />that the execution, delivery and performance of this Agreement will not
<br />contravene any applicable by-law, corporate charter, operating
<br />agreement, partnership or joint venture agreement, law, regulation, order
<br />or judgment; that execution, delivery and performance of this Agreement
<br />will not contravene any provision or constitute a default under any other
<br />agreement, license or contract which such party is bound; and, that this
<br />Agreement is valid and enforceable in accordance with its terms. 41. Counterparts. This Agreement may be executed and delivered in
<br />counterparts, each of which shall be deemed an original but all of which
<br />together shall constitute one and the same instrument. 42. Facsimile and Electronic Signatures. Merchant and Processor
<br />agree that electronic signatures will have the same legal effect as original
<br />(i.e. ink) signatures and that an electronic, scanned, facsimile, or
<br />duplicate copy of any signatures will be deemed an original may be used
<br />as evidence of execution. 43. Member Bank. The Processor and Member Bank may jointly or
<br />individually assert or exercise any rights or remedies provided to
<br />Processor and Member Bank hereunder. Processor and Member Bank
<br />reserve the right to allocate the duties and obligations assigned
<br />hereunder to Processor between themselves, as they deem appropriate
<br />in their sole discretion. Member Bank has certain obligations to
<br />Merchant pursuant to the Operating Regulations. In the event of any
<br />conflict between this Agreement and the Operating Regulations on the
<br />subject of Member Bank’s obligations, the Operating Regulations shall
<br />control. Processor is party to an agreement with Member Bank and
<br />under such agreement is authorized to provide the services described
<br />herein. This Agreement shall be deemed accepted by Member Bank as
<br />of the date the first transaction is acquired under this Agreement. As of
<br />the commencement of this Agreement, Member Bank shall be Citizens
<br />Bank, National Association located in Providence, Rhode Island. The
<br />Member Bank may delegate certain or all of its duties to an affiliate of
<br />the Member Bank at any time, without notice to Merchant. The Member
<br />Bank may be changed, and its rights and obligations assigned to another
<br />party by Processor at any time without notice to Merchant. 44. Agency Appointment. The parties acknowledge and agree that
<br />(a) the funds comprising the cardholder payments are property of
<br />Merchant; (b) Merchant hereby appoints the approved processor, the
<br />FIS affiliate legal entity as defined in the Biller Solutions Agreement
<br />(“Approved Processor”), as Merchant’s agent to receive cardholder
<br />payments on Merchant’s behalf; (c) the completion of cardholder
<br />payments and/or the receipt of money from cardholders hereunder by
<br />the Approved Processor shall be considered payment to Merchant,
<br />extinguishing cardholder's payment obligation to Merchant (in the
<br />principal amount paid by cardholder) as if the cardholder had paid the
<br />Merchant directly, even if the funds associated with the cardholder
<br />payment are not settled by Approved Processor to Merchant; (d)
<br />Approved Processor, and not the cardholder, is solely liable to Merchant
<br />for cardholder payment funds if the Approved Processor fails to remit
<br />cardholder payment funds to Merchant; (e) the Approved Processor is
<br />not involved in the collection of any cardholder's debt nor the provision
<br />of Merchant’s goods or services to cardholders; and (f) each cardholder
<br />payment is subject to Approved Processor's terms and conditions. For
<br />the duration of its designation, the Approved Processor shall be joined
<br />as a party to the Agreement for the limited purpose of receiving
<br />cardholder payments from cardholders as agent on Merchant’s behalf,
<br />and the Approved Processor’s sole obligation under this Agreement will
<br />be to accept cardholder payments on Merchant's behalf and remit
<br />cardholder payments to Merchant. 45. Affiliates. The parties acknowledge that Processor, Worldpay,
<br />LLC (an FIS owned entity), is contracting on behalf of itself and FIS
<br />owned affiliated entities (“Affiliates”) and such Affiliates are permitted
<br />transferees as applicable. Services and obligations under this
<br />Agreement, which may include services for which Approved Processor
<br />is responsible pursuant to Section 44 Agency Appointment, may be
<br />delivered by Affiliates including but not limited to Link2Gov Corporation
<br />and Metavante Payment Services, LLC at any point in the term of the
<br />agreement. Notwithstanding the foregoing, Worldpay, LLC will remain at
<br />all times responsible for complying with its obligations under this
<br />Agreement. 46. American Express. American Express Program.
<br />Capitalized terms in this Section 46 are defined in the American Express
<br />Merchant Operating Guide. The following will only apply to Merchant’s
<br />participation in the American Express Program.
<br />a. Merchant hereby authorizes Processer to submit Transactions
<br />to, and receive settlement from, American Express on behalf of the
<br />Merchant. If Merchant is placed in the American Express Program,
<br />Merchant shall be responsible for complying with the provisions set forth
<br />in the Rules Summary and the American Express Merchant Operating
<br />Guide, which can be located at
<br />http://americanexpress.com/merchantopguide and is incorporated
<br />herein by reference.
<br />b. Processor may disclose Transaction Data, Merchant Data, and
<br />other information about the Merchant to American Express; and
<br />American Express may use such information to perform its
<br />responsibilities in connection with the Program, promote the American
<br />Express Network, perform analytics and create reports, and for any
<br />other lawful business purposes, including marketing purposes within the
<br />parameters of the Agreement. American Express may use the
<br />information from the Agreement at the time of setup to screen and/or
<br />monitor Merchant in connection with Card marketing and administrative
<br />purposes.
<br />c. Merchant shall not assign to any third party any payments due
<br />to it under the Agreement, and all indebtedness arising from Charges
<br />will be for bona fide sales of goods and services (or both) at its
<br />Establishments and free of liens, claims, and encumbrances other than
<br />ordinary sales taxes; provided, however, that the Merchant may sell and
<br />assign future Transaction receivables to Processor, its affiliated entities
<br />and/or any other cash advance funding source that partners with
<br />Processor or its affiliated entities, without consent of American Express.
<br />d. Merchant confers on American Express the third party
<br />beneficiary rights, but not obligations, to the Merchant’s Agreement and
<br />subsequent addendums (collectively the “Agreement”) between
<br />Merchant and Processor and, as such, American Express has the
<br />express right to enforce the terms of the Agreement against the
<br />Merchant. Sponsored Merchant warrants that it does not hold third party
<br />beneficiary rights to any agreements between Processor and American
<br />Express and at no time will attempt to enforce any such agreements
<br />against American Express.
<br />e. Merchant may elect to opt out of accepting American Express
<br />Cards at any time without directly or indirectly affecting its rights to
<br />accept other payment products by notifying Processor.
<br />f. Processor may terminate the Merchant’s right to accept American
<br />Express Cards if it breaches any of the provisions in this Section 46, the
<br />Rules Summary or the American Express Merchant Operating Guide.
<br />g. Processor has the right to immediately terminate a Merchant
<br />from the American Express Program for cause, fraudulent or other
<br />activity, or upon American Express’ request.
<br />h. Merchant may not bill or collect from any American Express
<br />cardholder for any purchase or payment on the Card unless Chargeback
<br />has been exercised, the Merchant has fully paid for such Charge, and it
<br />otherwise has the right to do so.
<br />i. Upon termination of the Agreement or termination of Merchant’s
<br />participation in the Program, Merchant must remove any and all
<br />DocuSign Envelope ID: 21DD58A4-4565-4EC5-AD94-06300FFBC6D5
<br />In Process
|