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<br />knowledge of any such judgment, writ, warrant of attachment, execution
<br />or}evy.
<br />
<br />20) Indemnification. All disputes between you and the Cardholder will
<br />~ settled between you and the Cardholder. You must ensure that the
<br />Cardholder IDlderstands that you are responsible for the transaction, for
<br />any related customer service, dispute resolution, and perfonnance of terms
<br />and conditions of transaction. You agree to indemnify and hold us and
<br />any third party providing services hereunder (Providers and Sponsors) and
<br />each Card Organization and said Card Organization's participants harmless
<br />from and against all losses, liabilities, damages and expenses (including
<br />attorneys' and collection fees and expenses) resulting from any breach of
<br />any covenant or agreement or any misrepresentation by you IDlder this
<br />Agreement, or arising out of your or your employees' negligence, fraud or
<br />willful misconduct in connection with your Card transactions, use of our
<br />services, or otherwise arising from your provision of goods and services to
<br />Cardholders, In addition, you agree to indemnify and hold us and any
<br />Providers, Sponsors, States, and each Card Organization and said Card
<br />Organization's participants harmless from and against all losses, liabilities,
<br />damages and expenses (including attorneys' and collection fees and
<br />expenses) resulting from you, or your employees, agents, or
<br />representatives (1) failure to abide by a requirement of this Agreement, (2)
<br />violation of any applicable law or regulation or order, (3) misuse of any
<br />protected mark ofa Card Organization, (4) effecting transactions with the
<br />use of a lost stolen, cOlDlterfeit, or misused Card, or (5) conduct of your
<br />business. Further, you agree to indemnify and hold us harmless from and
<br />against all losses, liabilities, damages and expenses (including attorneys'
<br />and collection fees and expenses) we may incur pursuant to any Rule
<br />resulting from your action or inaction, including but not limited to, all
<br />losses and expenses we may incur as a result of any action you institute
<br />against any Card Organization or Card issuer following a Chargeback,
<br />Further, you agree to indemnify and hold us hannless from and against all
<br />losses, liabilities, damages and expenses (including attorneys' and
<br />collection fees and expenses) resulting from our compliance with the
<br />verbal or written instructions of any Card Organization, You agree to hold
<br />us harmless for any activity arising out of the negligence or willful
<br />misconduct, acts and/or omissions of any third party engaged by you
<br />including the employees and/or agents of sllid third party.
<br />
<br />If providing any of the services to you herelDlder violates, or in our
<br />reasonable opinion is likely to violate, any applicable laws or
<br />governmental regulations, or should we receive instructions from a
<br />governmental agency having authority over your business instructing us to
<br />cease providing any or all of said services, or should you cease operations,
<br />then we may, upon oral notice to you, immediately cease providing the
<br />affected services to you.
<br />
<br />We agree to indemnify and hold you harmless from and against all losses,
<br />liabilities, damages and expenses (including reasonable attorneys' fees and
<br />expenses) resulting from any breach of any covenant or agreement or any
<br />misrepresentation by us under this Agreement or arising out of our or our
<br />employees' gross negligence or willful misconduct in connection with this
<br />AgreemenL
<br />IN NO EVENT WILL WE BE RESPONSIBLE FOR ANY INDIRECT,
<br />INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH YOU
<br />MAY INCUR AS A RESULT OF ENTERING INTO OR RELYING
<br />UPON TInS AGREEMENT OR TERMINATION OF THIS
<br />AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES OCCURRING.
<br />
<br />21. Performance of Duties. Each party will be excused from
<br />perfonnance IDlder this Agreement, except for any payment obligations,
<br />for any period and to the extent that it is prevented from perfonning, in
<br />whole or in part, as a result of delays caused by the other party or any act
<br />of God, war, civil disturbance, court order, labor dispute, third party
<br />nonperfonnance or other cause beyond its reasonable control, including
<br />failures, fluctuations, or nonavailability of electrical power, heat light air
<br />conditioning, or telecommunications equipment. Such nonperfonnance
<br />will not be a default or a grolDld for tennination as long as reasonable
<br />means are taken to expeditiously remedy the problem causing such
<br />nonperfonnance, Notwithstanding the foregoing, during any period when
<br />our perfonnance is hindered or precluded by reason of any of the aforesaid
<br />causes, your obligations to make payments herelDlder will be reduced on
<br />an equitable basis. If you elect not to implement the redlDldant
<br />configuration recommended by us for connectivity to us, we will have no
<br />liability if the connectivity fails and you agree to indemnify and hold us
<br />harmless from any and all resulting losses, liabilities, damages and
<br />expenses resulting therefrom. None of the following will be liable or
<br />deemed to be in default for any delay or failure to perfonn under this
<br />Agreement or for any interruption in the services resulting, directly or
<br />indirectly, from any cause beyond it's reasonable control: any State,
<br />NACHA, EBT Network, a State's designated agent, or us.
<br />
<br />22. Governing Law; Miscellaneous.
<br />
<br />a) This Agreement is governed by and will be construed in
<br />accordance with the laws of the State of North Carolina without
<br />regard to conflicts of law provisions, regardless of where you may
<br />conduct business, except that Section 23 will be governed by the
<br />Federal Arbitration Act. If any part of this Agreement is not
<br />enforceable, the remaining provisions will remain valid and
<br />enforceable. In perfonning its obligations under this Agreement, each
<br />party agrees to comply with all laws and regulations applicable to it.
<br />A waiver by us of any of the covenants, conditions, or agreements to
<br />be perfonned by you or any breach thereof will not be construed to
<br />be a waiver of any succeeding breach or of any other covenant,
<br />condition or agreement contained in this Agreement.
<br />
<br />b) WE MAKE NO WARRANTIES TO YOU, EXPRESSED OR
<br />IMPLIED, INCLUDING,. BUT NOT LIMITED TO, ANY IMPLIED
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
<br />PARTICULAR PURPOSE. Our sole liability to you or any third
<br />party for any claims, notwithstanding the fonn of such claims (e.g.
<br />contract, negligence or otherwise), arising out of the delay of, or
<br />interruption in the services provided or to be provided by us
<br />hereunder, will be to use its reasonable efforts to commence or
<br />resume the services as promptly as reasonably practicable. Should
<br />we be required to defend a claim brought by you and we prevail, we
<br />will be entitled to reimbursement from you, and you agree to pay us
<br />all costs, attorneys' fees and any other expenses incurred in
<br />connection with those proceedings. No action, regardless of fonn,
<br />arising out of or related to this Agreement may be brought by you
<br />more than one (1) year after the cause of action has accrued.
<br />
<br />c) You agree to comply with all applicable federal, state, and
<br />international laws and governmental rules and regulations relating to
<br />the operation of your business.
<br />
<br />d) We, in providing services, are acting as an independent
<br />contractor and do not undertake by this Agreement or otherwise to
<br />perfonn any of your regulatory or contractual obligations. We have
<br />the sole right and obligation to supervise, manage, contract, direct,
<br />procure, perfonn or cause to be perfonned, all work to be perfonned
<br />by us under this Agreement.
<br />
<br />23. Dispute Resolution and Arbitration. If the parties disagree as to
<br />any matter governed by this Agreement, the parties will promptly consult
<br />with one another in an effort to resolve the disagreement. If such effort is
<br />unsuccessful, any controversy or claim arising out of or relating to this
<br />Agreement, or the breach thereof, will be settled by arbitration in
<br />accordance with the Commercial Arbitration Rules of the American
<br />Arbitration Association, and judgment upon the award rendered by the
<br />arbitrator(s) may be entered in any court having jurisdiction thereof.
<br />Arbitration shall take place on an individual basis without resort to any
<br />fonn of class action. The arbitrator(s) will have the right to render
<br />equitable, as well as other, awards and relief. The parties agree that the
<br />underlying agreement between the parties involves interstate commerce,
<br />and that, notwithstanding any choiceoflaw provision in Section 22 of this
<br />Agreement, any arbitration hereunder will be governed by the Federal
<br />Arbitration Act.
<br />
<br />24. Amendments. We may change this Agreement, the
<br />Manuals/Instructions, or other opernting procedures by giving you at least
<br />fifteen (15) days advance notice. However, in the event of changes in the
<br />Rules or due to security or risk control reasons, certain changes may
<br />become effective on shorter notice. In addition, we may from time to time
<br />notify you in writing or through other means of requirements that must be
<br />satisfied to qualify for various incentive programs, Any Card sales made
<br />by you after the effective date of such change will constitute consent to the
<br />new terms.
<br />
<br />Notwithstanding the foregoing, we will use reasonable efforts to notify
<br />you at least thirty (30) days in advance of any fee changes. Following
<br />such notification by us of any amendment of the fees referenced herein
<br />and for thirty (30) days thereafter, you may tenninate this Agreement upon
<br />written notice to us without the obligation to pay us any penalties for early
<br />deconversion. However, any Card sales made by you on or after thirty-
<br />one (31) days following such notice to you will constitute consent to the
<br />new tenns,
<br />
<br />25. Notices. All notices hereunder (unless involving nonnal operational
<br />matters, including requirements for various incentive programs) must be in
<br />writing and will be deemed given (a) if sent by mail, on the third business
<br />day after being mailed first-class mail to the: specified address; (b) if sent
<br />by courier, when delivered; or (c) if sent by facsimile, when trBnsmission
<br />is confinned; in any case, if to you at the address appearing in the
<br />Application, and if to us to BA Merchant Services, 1231 Durrett Lane,
<br />Louisville, Kentucky, 40213, Attention: Customer Services, KY6-200-0l-
<br />14, Fax. (502) 315-2090, or to such other address as we or you may have
<br />
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