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<br />specified in a written notice to the other. We may include a notice with or
<br />on your statement. As an alternative, we may make any notices available
<br />by electronic means such as on our Internet web site and notify you how it
<br />may be accessed, including notification by electronic mail. If we make a
<br />notice available by electronic means, we also will provide a toll-free
<br />telephone number where you may order a paper copy with postage paid by
<br />us. You agree to read all notices affecting this Agreement that we send or
<br />make available to you,
<br />
<br />26. Certain Rights of Card Organizations. The parties acknowledge
<br />that the Rules give the Card Organizations, including all applicable Debit
<br />and EBT Networks, the States, the State EBT Service Provider, and certain
<br />governmental entities participating in the EBT Project, certain rights to
<br />investigate you and to require tennination or modification of this
<br />Agreement with respect to transactions involving said Card Organization's
<br />systems.
<br />
<br />27. Systems Enhancements. If after the effective date of this
<br />Agreement, you request us to perfonn or provide any System
<br />Enhancements and we subsequently agree to provide you such System
<br />Enhancements, we will use reasonable efforts to provide such System
<br />Enhancements if you pay us the additional fees charged by us for such
<br />System Enhancements. Any subsequent changes that we must make in
<br />your Systems Enhancements to accommodate changes in applicable law or
<br />the Rules will be at your expense.
<br />
<br />28. Signature; Electronic Contracting; General Provisions. Your
<br />signature, a facsimile copy of your signature, a digitally stored image of
<br />your signature, or a unique digital signature on or captured within (as
<br />applicable) the Application attached to this Agreement, the Fee Schedule
<br />attached to this Agreement and, if applicable, an Equipment Agreement
<br />serves as the signature for this Agreement. The parties to this Agreement
<br />expressly acknowledge and agree that the parties to this Agreement may
<br />choose to contract via electronic means and that such contracts will have
<br />the same force and effect as if conducted via conventional fonn.
<br />Notwithstanding anything to the contrary elsewhere in this Agreement or
<br />in other agreements you may have with us, it is expressly acknowledged
<br />and understood that all such electronic contracting is and will be
<br />conducted pursuant to the provisions of North Carolina Gen. Stat. ~66-3 I I
<br />
<br />et seq, The parties to this Agreement also expressly acknowledge and
<br />agree that any duplicate original (whether digital, photographic, or
<br />otherwise) or electronic record of this Agreement will have the same force
<br />and effect as the original fonn of this Agreement You indicate, by signing
<br />the Application or by submitting sales data, your acceptance of and
<br />agreement to the tenns and conditions of this Agreement. This Agreement
<br />will become effective only if and when we note our acceptance of it or
<br />process sales data that you submit. In addition, if, after the effective date
<br />of this Agreement, you elect to accept other card types, by submitting sales
<br />data for said card type (after approval by us and the card issuer, if
<br />applicable) you indicate your acceptance to the pricing and conditions
<br />associated with accepting said card types.
<br />
<br />29. Telephone and Mail Orders; Electronic Commerce; Recurring
<br />Sales or Other Preauthorized Orders or Sales. You may not accept
<br />MO/TOIIO transactions unless you have specifically infonned us of the
<br />percent of MOrrOIIO transactions to be conducted and we have
<br />specifically authorized you to accept such tnmsactions. Acceptance of
<br />such transactions without authorization from us will constitute a breach of
<br />this Agreement If you accept and we authorize you to accept telephone or
<br />mail orders or electronic commerce transactions or recurring sales or other
<br />preauthorized orders or sales, you must comply with all requirements of the
<br />Rules regarding mail order, telephone order, electronic commerce, recurring
<br />sales and other preauthorized orders or sales, including but not limited to the
<br />rules contained in the ManualslInstructions.
<br />
<br />You acknowledge and agree that you will only submit Electronic
<br />Commerce Card transactions in U.S. Dollars that arise from a
<br />Cardholder's purchase over the Internet. You will be responsible for
<br />obtaining any operational consents required of the Card Issuer to comply
<br />with procedures or practices contemplated by both you and us under this
<br />Agreement. If software is to be purchased by you, you will be responsible
<br />for sublicensing fees and all other fees for software and the software
<br />program utilized by you that enables you to connect to and maintain
<br />communication between you, the Internet and us. You will, at all times,
<br />maintain in effect a Sublicense Agreement for any such software. You
<br />agree to use any such software and the software program properly and for
<br />the purposes for which it was intended.
<br />
<br />EQillPMENT AGREEMENT
<br />
<br />I
<br />
<br />This Equipment Agreement is being entered into by and between BA
<br />Merchant Services, LLC. ("BA Merchant Services") and the Merchant
<br />identified in the attached Application ("You").
<br />
<br />This Agreement governs the sale of certain tenninals, printers, and other
<br />equipment identified in the Application (the "Equipment"). All references
<br />to the Application in this Agreement mean both the Application attached
<br />to this Agreement when it is first executed by you and us and any
<br />supplemental versions of the Application mutually agreed upon when you
<br />open additional locations or when you otherwise request additional or
<br />different equipment. THE EQUIPMENT IS NOT BEING SOLD TO
<br />YOU FOR HOME OR PERSONAL USE. In this Agreement,
<br />Equipment refers to any electronic tenninal, electronic printer or other
<br />electronic peripheral equipment identified on the Application.
<br />
<br />In consideration of the mutual covenants and agreements set forth herein
<br />and other good and valid consideration, the receipt and sufficiency of
<br />which are hereby acknowledged, you and we agree as follows:
<br />
<br />The text of the attached Application, and Card Processing Agreement,
<br />including any related Schedules, Amendments, Addenda, or Exhibits
<br />thereto attached, is hereby incorporated herein as if fully set forth at this
<br />point, but with the following modifications thereto:
<br />
<br />I. Sections 2-7, 9-13,15,18,19,26 and 29 thereof are deleted in their
<br />entirety ,
<br />
<br />2. For the purposes of this Equipment Agreement, any and all
<br />references to "Bank," "we," "our" and "us," unless the context clearly
<br />requires otherwise, refer only to BA Merchant Services.
<br />
<br />3 Section 17 of the Card Processing Agreement is hereby deleted and
<br />replaced with the following: "Effective Date and Term of
<br />Agreement/Default; Remedies.
<br />
<br />a, This Agreement will become effective on the earlier of the date
<br />this Agreement is fully executed by you and us or the first date you
<br />are deemed to have accepted any piece of Equipment covered by this
<br />Agreement. This Agreement will remain in effect until all of your
<br />obligations and all of our obligations under this Agreement have been
<br />satisfied. We will deliver the Equipment to the site or sites designated
<br />in the Application. You will be deemed to have accepted each piece
<br />of Equipment upon delivery, The provisions of this Agreement wi\1
<br />survive the tennination or expiration of the Card Processing
<br />
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<br />HAMS MSA (8-2-05)
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<br />Page 17 of 19
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<br />Agreement, unless this Agreement tenninates or expires before the
<br />Card Processing Agreement.
<br />
<br />b, If any debit of your Settlement Account initiated by us for charges
<br />due hereunder is rejected when due, or if you otherwise fail to pay us
<br />any amounts due hereunder when due, or if you default in any
<br />material respect in the perfonnance or observance of any obligation
<br />or provision in this Agreement, or if any other Default occurs under
<br />the Card Processing Agreement, any such event will be a Default
<br />hereunder. In the event that you default in the payment or
<br />perfOlmance of any of your obligations under this Agreement, you
<br />will immediately (I) forfeit all monies paid hereunder and (2)
<br />surrender peacefully and deliver up promptly all Equipment to us.
<br />
<br />Upon the occurrence of any Default and in addition to the foregoing,
<br />we may at our option, effective immediately without notice, either:
<br />(i) terminate our future obligations under this Agreement and proceed
<br />in any lawful manner against you for collection of all charges that
<br />have accrued and are due and payable, in which case this Agreement
<br />will terminate as soon as your obligations to us are satisfied or (ii)
<br />require the immediate payment of all remaining amounts due under
<br />this Agreement and be entitled to reimbursement for any costs of
<br />repossession and/or any amount necessary to restore the Equipment
<br />to the same condition in which it was delivered to you, ordinary wear
<br />and tear excepted. In either case, you will also be responsible for
<br />court costs and reasonable attorney's fees incurred by or on behalf of
<br />us, as well as applicable shipping, repair and refurbishing costs,"
<br />
<br />4 The following will be added as Section 30: "Equipment Options
<br />and Applicability of Agreement Terms.
<br />
<br />a, ECluioment Ootions. Whereas: Option 1: You desire to purchase
<br />certain Equipment directly from us in consideration of the payment
<br />of a purchase price by you to us; or
<br />
<br />Whereas: Option 2: You desire to purchase certain Equipment
<br />through a person or persons other than us who have procured said
<br />Equipment from us, payment for which will be made by you to said
<br />other person or persons.
<br />
<br />b, Aoolicabilitv of Agreement Tenns, In the event of Option I
<br />above, you and we agree that all terms and conditions of this
<br />Agreement will apply.
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