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<br />otherwise required by the Rules. You acknowledge that you will not acquire
<br />any right, title or interest in or to any Visa, MasterCard, Debit or EBT
<br />Networlc: or other applicable Card Issuer marks by virtue of this Agreement.
<br />Further, you must not indicate that Visa, MasterCard, or any other Card
<br />Organization or state endorse your goods or serVices and must not
<br />continue using such materials after termination of this Agreement. Any
<br />use of a color reproduction, facsimile, replica or picture of a Card
<br />Organization Card for advertising purposes other than media advertising is
<br />prohibited unless the reproduction, facsimile, replica or picture is
<br />proportionately larger or smaller in length and width by at least 10% of the
<br />standard dimensions for Card Organization Cards. You will promptly
<br />cease all use of a program's marks upon termination of your participation
<br />in the applicable Card Organization or \1pon notification from US or any
<br />state or Card Organization to cease use of said marks. No right, title or
<br />interest in the service marks have been transferred or is being transferred
<br />to this Agreement, except the non-exclusive right to use said marks as
<br />provided in this Agreement.
<br />
<br />16. Assignment. Subject to the following provisions, this Agreement is
<br />binding upon successors and assigns and inures to the benefit of the parties
<br />and their respective permitted successors and assigns. You may not assign
<br />or transfer this Agreement, by operation of law or otheIWise, without our
<br />prior written consent. For purposes of this Agreement, any transfer of
<br />voting control of you or your parent will be considered an assignment or
<br />transfer hereof. No assignee for the benefit of creditors, custodian,
<br />receiver, trustee in Bankruptcy, debtor in possession, sheriff or any other
<br />officer of a court, or other person charged with taking custody of your
<br />assets or business, will have any right to continue, assume or assign this
<br />Agreement. We may assign or transfer this Agreement and our rights and
<br />obligations under this Agreement and we may delegate our duties under
<br />this Agreement, in whole or in part, to any third party, without obtaining
<br />your consent.
<br />
<br />17. Terms; Default; Reserve/Security Account
<br />
<br />a) This Agreement is binding upon the earlier of (i) its execution
<br />by all parties as evidenced by signatures on the Application or (ii) the
<br />sfi:ttlement by us of (A) any Card transaction submitted by you to us
<br />pursuant to this Agreement if you are a new customer that does not
<br />already have an agreement with us for Card transaction services or
<br />(B) any Card transaction submitted by you thirty (30) or more days
<br />after your receipt of this Agreement if you are one of our existing
<br />customers whose current agreement with us for Card transaction
<br />services is being replaced by this Agreement. Unless otherwise
<br />agreed by the parties, the Initial Term of the Agreement will be three
<br />(3) years. The Agreement will continue in full force thereafter for
<br />successive one-year periods on the same terms and conditions
<br />expressed herein, unless any party gives one hundred twenty (120)
<br />days advance written notice of termination to the other parties to be
<br />effective no earlier than the expiration of the Initial Term or any
<br />Renewal Term, or as otherwise set forth herein.
<br />
<br />b) We may terminate this Agreement upon thirty (30) days'
<br />written notice to you, with or without cause. In addition, if any of the
<br />following events (each a "Default") occurs, we may terminate this
<br />Agreement immediately without notice and exercise all of our other
<br />rights and remedies under this Agreement and applicable law' (i) a
<br />material adverse change in your business, financial condition,
<br />business procedures, products or services, a sale of all or a substantial
<br />portion of your assets, or a change in control of your business
<br />(directly or indirectly); (ii) any information provided on the
<br />Application was false or misleading, (iii) irregular Card sales,
<br />excessive Chargebacks, illegal activity or any other circumstances
<br />which, in our discretion, may increase our potential exposure for your
<br />Chargebacks or otheIWise present a financial or security risk to \J&; or
<br />(iv) a default by you in any material respect in the performance or
<br />observance of any term, covenant, condition or agreement in this
<br />Agreement, or in any other agreement with us or any of our affiliates,
<br />including the non-payment of any fees due to us; (v) any non-
<br />compliance by you with the tenns of the Agreement or the Rules, or
<br />any reasonable belief by us, as applicable, that you may fail to
<br />comply with the terms of the Agreement, which failure would
<br />constitute a substantial risk to us, (vi) if you are disqualified or
<br />withdrawn from the Benefit issuance program(s) indicated on the Fee
<br />Schedule, (vii) there is an overdraft for five (5) consecutive. days in
<br />your Settlement Account, (viii) any guaranty is revoked, (IX) your
<br />business name and/or the names of your principals is listed on the
<br />MATCH (Membership Alert To Control High Risk Merchants)
<br />System and/or other security/credit alert systems, or (x) you file a
<br />voluntary petition or complaint seeking relief under any federal or
<br />state Bankruptcy or other debt relief statute, an involuntary petition
<br />under any federal or state bankruptcy or other debt relief statute is
<br />filed against you, you generally become unable to pay your debts or
<br />
<br />BAMS MSA (8-2-05)
<br />
<br />Page 14 of 19
<br />
<br />trade obligations as they become due, or you make a general
<br />assignment for the benefit of creditors. If an order of relief is entered
<br />against you in a case commenced under Title II of the United States
<br />Code and you are given the right to assume or reject this Agreement,
<br />YQU must do so within sixty (60) days after the entry of such order Qf
<br />~elief; if you fail to do so, we may terminate this Agreement I
<br />immediately upon written nQtice to you. If, during any six (6) month
<br />period (the "Measurement Period") the average size Qr the total
<br />amount of your Card transactions is mQre than 20% lower than the
<br />amount stated in the Application fQr (i) your average Card transactiQn
<br />size or (ii) Qne-half Qf your annual Card volume, then we may
<br />terminate this Agreement by giving YQU at least thirty (30) days
<br />advance nQtice; any such notice must be sent to YQU within thirty (30)
<br />days after the end of the applicable Measurement Period.
<br />
<br />We may, upon receipt of verbal or written instructions from any Card
<br />Organization to which we are providing access hereunder,
<br />immediately cease to provide to you, including your clients, access tQ
<br />such Card Organization. We will use reasonable efforts tQ promptly
<br />notify YQU Qf such interruption in Card Organization access.
<br />
<br />c) The provisions of this Agreement that govern processing of
<br />Card sales and credits and settlement will continue to apply even
<br />after this Agreement is terminated, until all Card transactions are
<br />settled or resQlved, and the provisiQns of Sections 10, II, 12, 13, 14,
<br />16, 17, 18,20,21,22, and 23 will survive any termination. Upon
<br />termination, all amounts payable to us will be due and payable in full
<br />without demand or Qther nQtice Qf any kind (all Qf which you agree
<br />to expressly waive) and you must immediately send us all the data
<br />relating to Card sales and credits made up to the date of termination,
<br />We will not be liable to you for any direct or consequential damages
<br />you may suffer as a result Qfthe terminatiQn Qfthis Agreement.
<br />
<br />d) If this Agreement is terminated at any time Qther than upon
<br />expiration in accordance with Section 17 (a), we will be entitled to
<br />recover, and you will pay on demand, any and all losses (including
<br />consequential damages, loss of profits, costs, expenses and liabilities)
<br />incurred by us in connection with termination, You will be
<br />responsible for all collection and legal fees and expenses we. incur in
<br />the collection of any delinquent amounts you may owe us. You also
<br />acknowledge that we will incur costs and expenses to provide certain
<br />routine services following termination of the Agreement, similar to
<br />those provided during the term of this Agreement, including I
<br />processing Chargebacks relating to transactions that initially occurred
<br />prior to tennination, providing monthly statements to you to report
<br />any such Chargebacks or other adjusbnents and responding to
<br />telephone calls and other inquiries. Therefore, notwitbstanding any
<br />terms or conditions to the contrary contained elsewbere, if tbis
<br />Agreement is terminated prior to expiration of any term, you
<br />agree to pay us an Early Deconversion Fee for eacb location as
<br />set fortb on the Fee Scbedule to cover our routine post-
<br />termination services. Whether or not we charge an Early
<br />Deconversion Fee for our services, you will remain liable fQr
<br />Chargebacks and other adjusbnents as provided in SectiQn 17(e) and
<br />for other costs, damages, losses, expenses and liabilities incurred by
<br />us in cQnnection with an early termination of this Agreement. You
<br />authorize us to debit your Settlement AccOlmt for, or deduct from any
<br />settlement funds otherwise owed to you, the Early Deconversion Fee,
<br />plus any arid all losses (including costs, expenses and liabilities)
<br />incurred by us in connection with termination. If your settlement
<br />funds or the balance in your Settlement Account is insufficient to
<br />cover the Early Deconverslon fee and all such losses, you agree to
<br />pay us such amounts immediately Qn receipt of invoice.
<br />
<br />e) After any termination of this Agreement, you will continue to
<br />bear total, responsibility for any and all Chargebacks, credits and
<br />adjusbnents and all other amounts then due, or which later become
<br />due, to us under this Agreement or to either of us or any of our
<br />affiliates for any related equipment or related services. In connection
<br />with termination, we may require that a reserve/security account be
<br />established and maintained by you Qr on your behalf with us (or
<br />otherwise for Qur benefit) in an amount equal to:
<br />
<br />(i) our reasonable estimate of your dollar
<br />volume of incoming Chargebacks, for a nine (9) month period
<br />and your credits (for returns Qr Qtherwise) for a two (2) month
<br />period (which may be based on actual volume during the
<br />preceding 270 days for Charge backs and 60 days for c~dits ~r 9
<br />times your average monthly dollar volume of mcommg i'
<br />Chargebacks and 2 times your average monthly doll~ volume
<br />of credits, as determined during a recent 12-month penod or any
<br />shorter term of this Agreement) or such higher amount that we
<br />deem necessary and sufficient to cover our potential liability for
<br />Chargebacks and credits; plus
<br />
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