|
Merchant File and in other programs that monitor merchants. In the event that this AGREEMENT is terminated for cause
<br />and MERCHANT is obligated to TMS or BANK for sums due and the principals of MERCHANT are liable for such debts, a
<br />negative credit report may be submitted to a credit-reporting agency.
<br />B. MERCHANT hereby releases, indemnifies and holds TMS, BANK, and the ASSOCIATIONS harmless to the fullest extent
<br />permitted by applicable law for any loss or damage it may incur as a result of reporting MERCHANT or its principals to a
<br />credit reporting agency hereunder or as a consequence of MERCHANT or its principals being placed by TMS, BANK, or its
<br />Agents on the ASSOCIATIONS' merchant monitoring lists.
<br />6. BANKRUPTCY:
<br />6.1 It is not the intention of the PARTIES that TMS or BANK remains obligated to continue processing SALES or providing
<br />SERVICES in the event of a bankruptcy filing by MERCHANT. Upon filing voluntary or involuntary bankruptcy proceedings by or
<br />against MERCHANT, MERCHANT must notify BANK and TMS in writing within five (5) days. Notification must be sent by
<br />certified mail to BANK and TMS at the addresses for NOTICES set out herein.
<br />6.2 Credits to MERCHANT's DESIGNATED ACCOUNT and other payments to MERCHANT are provisional. The PARTIES
<br />acknowledge the AGREEMENT is an agreement whereby BANK is extending financial accommodations to MERCHANT within
<br />the meaning of Section 365 of the Bankruptcy Code as amended from time to time. The right of MERCHANT to receive any
<br />amounts due or to become due from TMS or BANK is expressly subject and subordinate to the CHARGEBACKS, recoupment,
<br />setoff, lien, and security interest rights of TMS and/or BANK under this AGREEMENT without regard to whether such
<br />CHARGEBACKS, recoupment, setoff, lien, and/or security interest rights are being applied to claims that are liquidated,
<br />unliquidated, fixed, contingent, matured, or unmatured.
<br />7. INFORMATION AND DOCUMENTATION:
<br />7.1 MERCHANT agrees to comply with all requests for information and documentation regarding SALES and the CARDS utilized in
<br />processing such SALES or SERVICES under AGREEMENT within the time period stated by TMS and BANK in its request.
<br />7.2 USA PATRIOT ACT REQUIREMENTS. To help the government fight the funding of terrorism and money laundering activities,
<br />the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person
<br />(including business entities) who opens an account. What this means: When MERCHANT opens an account, TMS and/or BANK
<br />will ask for the applicant's name, physical address, date of birth, taxpayer identification number, and other information that will
<br />allow TMS or BANK to identify the applicant. TMS or BANK may also ask to see the applicant's driver's license or other
<br />identifying documents. TMS or BANK will advise MERCHANT if additional information is required.
<br />7.3 Upon TMS's or BANK's request, MERCHANT shall provide TMS or BANK with current financial statements in a format
<br />acceptable to TMS and BANK.
<br />7.4 MERCHANT and its signing officer/owner/partner/principal authorize TMS and BANK, or their agents or assigns, to make, from
<br />time to time, any business and personal credit and other inquiries TMS and BANK consider necessary to review the acceptance
<br />and continuation of this AGREEMENT. MERCHANT authorizes parties contacted by TMS and BANK or any of their respective
<br />affiliates, in relation to this AGREEMENT, to release the credit information requested by TMS, BANK, or any affiliate.
<br />7.5 MERCHANT is supplied with monthly reports by TMS regarding MERCHANT's SALES or SERVICES activity. It is MERCHANT's
<br />sole responsibility to report any error or discrepancies detected by MERCHANT in writing to TMS within ninety (90) days following
<br />the end of the monthly reporting period. After such period, MERCHANT will be deemed to have accepted the monthly reports as
<br />delivered.
<br />7.6 MERCHANT will notify TMS immediately of any change in ownership, corporate or "d/b/a" name, location address, or the
<br />information contained on MERCHANT's imprinter plates.
<br />7.7 If MERCHANT participates in any TMS third party program, MERCHANT agrees that TMS may report information as required to
<br />such third party.
<br />7.8 MERCHANT is solely responsible for maintaining complete backup records of all information relating to its customers' orders,
<br />inquiries, purchases, SALES and any other customer information in accordance with this AGREEMENT, LAWS, and RULES.
<br />8. PROCESSING RESTRICTIONS:
<br />8.1 MERCHANT agrees that it will not materially change its BUSINESS or the method in which it markets or sells the goods and
<br />services of BUSINESS without informing TMS in advance of such change. TMS and BANK will only process SALES from the
<br />BUSINESS as defined in the AGREEMENT.
<br />8.2 If actual monthly SALES volume substantially exceeds the projected annual SALES volume as provided in the Merchant
<br />Application and pro-rated to one month, TMS and BANK may, at their option, do one or more of the following: (i) refuse to
<br />process SALES in excess of such sum; (ii) process such SALES and retain the proceeds of such SALES until the next month and
<br />release such sums to MERCHANT at that time counting this volume as SALES volume for that month; (iii) terminate this
<br />AGREEMENT; and/or (iv) amend this AGREEMENT in a way as to ensure that TMS and BANK have security for the increased
<br />volume. Such rights of termination and retention of funds are in addition to those already provided for herein.
<br />8.3 In the event of failure, including bankruptcy, insolvency, or other suspension of business operations by MERCHANT,
<br />MERCHANT shall not sell, transfer, or disclose any materials that contain cardholder account numbers, personal information, or
<br />other ASSOCIATION transaction information to third parties. Upon request from TMS or BANK, MERCHANT shall either (i)
<br />provide this information or (ii) provide acceptable proof of destruction of this information.
<br />9. USE OF THE INTERNET SYSTEM INTEGRATORS AND/OR THIRD PARTY SERVICE PROVIDERS:
<br />9.1 If MERCHANT accepts SALES through its web site or through a system integrator, MERCHANT shall at all times maintain and be
<br />responsible for the security of the transmission of data relating to the processing of SALES associated with this AGREEMENT.
<br />MERCHANT shall be responsible for obtaining and maintaining web site security, for the encryption of all data, and for any and all
<br />storage of data. MERCHANT shall display on its web site its: (i) consumer data privacy policy and (ii) security method for
<br />transmission of payment data. An e-commerce MERCHANT must display the address of its "permanent establishment" on its
<br />web site along with MERCHANT's country of domicile, either a) on the same screen view as the checkout screen used to present
<br />the total purchase amount, or b) within the sequence of web pages the cardholder accesses during the checkout process.
<br />201108 MTPA Terms and Conditions Page 6 of 35 CONFIDENTIAL
|