|
<br />
<br />I
<br />
<br />(ii) our reasonable estimate of all fees, transactions; we receive excessive retrieval requests against your prior
<br />charges, obligations and other amounts that may be owed to us activity; excessive Chargebacks are debited against your prior activity;
<br />or we reasonably expect to be owed to us under or in connection you do not deliver product or render fulI service on or before the
<br />with this Agreement at or following termination (including all transaction date; or you key a foreign card transaction. If your funds are
<br />adjustments needed to reconcile any discrepancies, to reflect diverted by us or we have temporarily suspended processing under this
<br />increased interchange fees because of failure to comply with Agreement, such diversion or suspension wilI be for any reasonable
<br />intended rates or interchange fees, or otherwise), any and all period of time required by us to fully investigate your account activity
<br />fines assessed against you or us or which may be assessed and resolve, to our sole satisfaction, your subject transaction or activity.
<br />against you or us, any and all fines assessed against you or us in We will maintain any funds diverted in a non-interest bearing account,
<br />relation to Compliance Cases (as defmed in the Rules) directly which may be a commingled accOlmt. We will have no liability for any
<br />or indirectly attributable to you, any other fees and charges not losses, either direct or indirect, which you may attribute to any
<br />collected by us prior to termination, and damages and other diversion of funds, or suspension of processing.
<br />amounts due under Section 17(e) upon premature termination; j) In the event you fail to establish or maintain any required
<br />plus reserve/security account, we may immediately tenninate this Agreement
<br />(iii) our reasonable estimate of all uncollected and may exercise any other rights we have under this Agreement.
<br />fees (including, but not limited to, debit adjustment fees and k) If this Agreement is terminated for any of the reasons specified
<br />Authorization fees), charges, obligations and other amounts as cause by the Rules, including, but not limited to, fraud, counterfeit
<br />(including damages and other amounts due upon premature paper, prohibited Card transactions, excessive Chargebacks, highly
<br />termination) payable to either ofus or to any of our affiliates for suspect activity or non-payment of fees, you acknowledge that we may
<br />related equipment or related services. be required or may elect to report your business name and the names of
<br />I) Without exercising (and without waiving) our right to terminate your principals together with other identifying information to the
<br />this Agreement immediately without notice and exercise our rights and MATCH (Membership Alert To Control High Risk Merchants) System
<br />remedies, if any of the events in Section 17(b) occur, we may, in our and other security/credit alert systems, You expressly agree and
<br />sole discretion, (i) require you to establish a reserve/security account consent to such reporting in the event this Agreement is so terminated
<br />with us during the term of this Agreement equal to the same amount as and, furthermore, will hold us harmless against any claims that arise as
<br />set forth in Section 17(e) and/or (ii) change processing or payment a result of such reporting.
<br />terms to suspend for any reasonable period of time required credits or 18. Security Interest and Setoff Rights. To secure your obligations to
<br />other payments of any and all amounts now due or to become due to us and our affiliates under this Agreement and any other related
<br />you pursuant to this Agreement. Should processing or payment terms agreements described below, you irrevocably grant to us a lien against and
<br />be changed, we will notify you within a reasonable time after effecting security interest in any funds pertaining to the transactions contemplated
<br />a suspension of credits or other payments, stating our reason for such by this Agreement now in our possession or that may come into our
<br />suspension. If you have accepted and processed fraudulent transactions, possession, whether due or to become due to you, together with the
<br />we will not be obligated to pay you for such transactions and will have proceeds thereof, the Settlement Account, the reserve/security account and
<br />full recourse against you for all such aforementioned transactions, We any other deposit account held by you with Bank or any other financial
<br />will also have the right to assess fees and recover all costs associated institution, whether now existing or established in the future, and in the
<br />with the investigation of any suspected fraudulent activity. We will proceeds of all those accounts, and any of your property ~Id by us. Any
<br />have no liability to you for any losses, either direct or indirect, which such funds may be commingled with other funds, and need not be
<br />you may suffer as a result of any such suspension of funds disbursement maintained in a separate account In addition to any rights granted under
<br />or failure to pay for transactions. applicable law and not by way of limitation of such rights, you authorize
<br />g) In connection with the termination of this Agreement or any us at any time and from time to time, without notice or demand (any such
<br />other event entitling us to require a reserve/security account from you notice and demand being expressly waived) to set off, to appropriate and
<br />(and continuing thereafter until the reserve is released pursuant to to apply any and all such funds against and on account of your obligations
<br />Section 17(h)), we may use any funds otherwise due to you, or we may (including damages and other amounts due under Section 17(d) upon
<br />debit your Settlement Account for funds, to establish and maintain on premature termination) under or in connection with this Agreement and
<br />your behalf (or restore/supplement) the balance of your funds in a any other agreement with us or any of our affiliates for any related
<br />reserve/security account containing your funds equal to the amount set equipment or related services, whether such obligations are liquidated,
<br />forth in Section 17(e). Your reserve/security funds required by Section unliquidated, fixed, contingent, matured or unmatured. You agree to
<br />17 may be held in a commingled reserve/security account for the execute and deliver to us such instruments and documents we may
<br />reserve/security funds of our customers, without involvement by an reasonably.request to perfect and confirm the lien, security interest and
<br />independent reserve agent. right of setoff set forth in this Agreement. In addition, your signature on
<br />h) The requirement to maintain a reserve/security account will not the Application also will be considered your signatwe agreeing to any
<br />limit our right to debit or withhold ongoing settlement payments as master control agreement as defined in Article 9 of the Uniform
<br />recoupment for Chargebacks, potential Chargebacks, adjustments, fees, Commercial Code among you, us and any other bank, under which
<br />charges, obligations and other amounts due hereunder. Your funds in agreement we, you and any other bank agree to the disposition of funds in
<br />the reserve/security account may be used to settle Chargebacks, the Settlement Account, the reserve/security account or any other deposit
<br />adjustments, fees, charges, obligations and other amounts described in account without further consent by you, provided that the control
<br />Section 17(e), whether arising before, on or after termination and agreement will not obligate you to pay additional fees to the Bank or to the
<br />whether such obligations or other amounts are liquidated, fixed, other bank.
<br />contingent, matured or unmatured, whenever there are not sufficient 19. Financial and Otber Information. You and your undersigned
<br />settlement funds due to you to cover such Chargebacks, adjustments, official wiIl provide us upon request financial statements and other
<br />fees or other charges or obligations. We will refund any of your unused information about your business and principal owner(s) and officer(s) and
<br />funds remaining in such reserve/security account to you generally no your compliance with the terms of this Agreement. You and your
<br />later than 280 days after termination of this Agreement, and if we undersigned official(s) and any Guarantor(s) authorize us to obtain from
<br />receive a written request from you within thirty (30) days thereafter, we third parties financial and credit information about you, your undersigned
<br />will provide you with an accounting of any of your funds debited or official(s) and any Guarantor(s), respectively, in connection with our
<br />credited from or to such account. If your funds in the reserve/security determination whether to accept this Agreement and our continuing
<br />account are not sufficient to cover the Chargebacks, adjustments, fees, evaluation of the financial and credit status of you, your undersigned
<br />charges, obligations and other amounts due from you, or if your funds official(s) and any Guarantor(s). Upon request, you will provide to us or
<br />in such account have been released, you agree to promptly pay us such our representatives reasonable access to your facilities and records for the
<br />sums upon request. purpose of performing any inspection and/or copying of your books and/or
<br />i) You acknowledge that we may monitor your daily credit card records we deem appropriate.
<br />transaction activity, You agree that we may upon reasonable grounds You will provide us with written notice of your intent to liquidate,
<br />divert into a reserve/security account the disbursement of your funds substantialIy cbange the basic natwe of your business, transfer or sell any
<br />and/or temporarily suspend processing under this Agreement. substantial part (25% of more) of your total assets, or change the control or
<br />Reasonable grounds will include, but not be limited to, the following: ownership of your business or of any other entity that controls your
<br />suspicious or unusual transaction activity; material variance in the business, thirty (30) days prior to such liquidation, change, transfer or sale
<br />nature of your business, type of product and/or service sold, average taking place, You will also notify us of any judgment, writ, warrant of
<br />ticket size, monthly volume or swipedlkeyed percentages, from such attachment, execution or levy against any substantial part (valued at 25%
<br />disclosures made by you in this Agreement; you do not authorize or more) of your total assets not later than three (3) days after you obtain
<br />
<br />BAMS MSA (8.2~05) Page 15 of 19
<br />
<br />I
<br />
|