HomeMy WebLinkAbout4560 Contract Number: 4560
Vendor BANK OF AMERICA
Sub�ect Government Banking Services
Department Finance
File Class LEG 12-1
Begin Date 7/1/2006
End Date 6/30/2010
Review Date 5/1/2010
Vault Date.
Comments 1 year extension (2010) w/same terms at City's option,
extended to 6/30/11
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CITY OF BREMERTON
Agreement for Bankuig Services
This Agreement for Government Bankmg Services (the "AgreemenY') is made as of this 1 st day
of July, 2010, between City of Bremerton (the "ClienY') and Bank of Amenca, N A, a national
bankmg association
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifymg the term
and constituent documents of the agreement between Chent and Bank regarding Banking
_ ___ i _ _ Services, _ _
NOW, THEREFORE, m consideration of the foregomg, and other good and valuable
consideration, the parties hereby agree as follows
1 Inte�rated Agreement The entire and mtegrated agreement between Client and Bank
related to the Services shall consist of this Agreement and Bank's Treasury Terms and
Conditions booklet (mcludmg user documentation and set-up forms) In the event of
conflict among any of the preceding documents, such documents shall govern m the
following order of precedence (1) this Agreement, (2) Bank's Treasury Terms and
Conditions booklet (includmg user documentahon and set-up forms) (3) the Bid Response,
dated May 9, 2006 The integrated agreement supersedes all pnor negotiations,
representations, statements and agreements, whether written or oral, regazdmg the Services
2 Commencement of Performance Except as otherwise agreed by the parties, Bank shall
begm performmg each Service upon execution and delivery of this Agreement, the pertinent
service-level agreement and the related set-up forms Bank shall continue to perform such
Services dunng the term of this Agreement
3 Term This Agreement is for an mihal term of one (1) year The Agreement may be
extended by mutual consent of the parties
In witness whereof, the parties have executed this Agreement as of the date first written above
By By �
,/ �
� �`�"
Signa re) (Signature)
Name Patty Lent Name Peter Sullivan
Address 345 6th Street, Suite 600 Address 800 5` Ave, 34` Floor
Crty, Crty,
State, Zip Bremerton, WA 98337 State, Zip Seattle, WA 98104
Trtle Mayor Trtle Chent Manager
1 of 1
Contract Number: 4560
Vendor: BANK OF AMERICA
Subject: Government Banking Services
Department: Finance
File Class: LEG 12-1 ,
Begin Date: 07/O1/2006
End Date: 06/30/2010
Review Date: 05/01/2010
Vault Date:
Comments: 1 yr extension (2010) w/same terms at City's option
Agreement for Government Banking Services
This Agreement for Government Banking Services (the "Agreement") is made as of this
~day of :::rLUle ,~, between City of Bremerton (the "Client") and Bank
of America, N.A., a national banking association.
WHEREAS, Client issued a Request for Proposal ("RFP") more fully identified below,
for providing banking services identified in the RFP (the "Services"):
City of Bremerton, Request For Proposal dated April 14, 2006; and
WHEREAS, the Bank was the successful bidder under the RFP, having submitted its bid
response dated May 9,2006 (the "Bid Response"); and
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifying
the term and constituent documents of the agreement between Client and Bank regarding
the Services;
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the parties hereby agree as follows:
1. Integrated Agreement. The entire and integrated agreement between Client and Bank
related to the Services shall consist of this Agreement, Bank's Treasury Terms and
Conditions booklet (including user documentation and set-up forms), Merchant
Services Agreement, Deposit Agreement and Disclosures Booklet, Bank's Bid
Response and Client's RFP as modified by the Bid Response. In the event of
conflict among any of the preceding documents, such documents shall govern in the
following order of precedence: (1) this Agreement, (2) Bank's Treasury Terms and
Conditions booklet (including user documentation and set-up forms), (3) Merchant
Services Agreement (4) Deposit Agreement and Disclosures Booklet (5) the Bid
Response and (6) the RFP. The integrated agreement supersedes all prior
negotiations, representations, statements and agreements, whether written or oral,
regarding the Services.
2. Commencement of Performance. Except as otherwise agreed by the parties, Bank
shall begin performing each Service upon execution and delivery of this Agreement,
the pertinent service-level agreement and the related set-up forms. Bank shall
continue to perform such Services during the term of this Agreement.
3. Term. This Agreement is for an initial term ofthree () ~ years. The Agreement
may be extended by mutual consent of the parties as set forth in the RFP.
4. Notices. Except as may otherwise be specified in the applicable service-level
agreement or set-up form, notices to Client and Bank shall be sent to the addresses
set forth below:
188251.04
Client: Cathy Johnson, Finance Officer
City of Bremerton
345 6th Street, Suite 600
Bremerton, WA 98337
360-473-5296
Bank: Tana Aarda1, Senior Vice President
Bank of America
WAl-501-34-03
800 5th Avenue, F134
Seattle, W A 98104
Changes in the respective address set forth above may be made from time to time by
any party upon written notice to the other party.
In witness whereof, the parties have executed this Agreement as of the date first written
above.
City of Bremerton, Washington
[Client Name]
BY:~.~
[Siknature]
---........
By:
[Signature]
Name: Cary BG~eman Name:
[Type or Print] [Type or Print]
Title: Mayor Title:
[Type or Print] [Type or Print]
BANK OF AMERICA, N.A.
~
[Signature]
By:
By:
[Signature]
Name: Tana Aarda1
[Type or Print]
Name:
[Type or Print]
Title: Senior Vice President
[Type or Print]
Title:
[Type or Print]
188251.04
2
AUTHORIZATION AND AGREEMENT FOR TREASURY SERVICES
I am an authorized representative of the organization specified below (the "Client"). The Client has received Bank of America's Treasury Services
Terms and Conditions Booklet (the "Booklet") and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America
("Bank"). The Services covered by the Booklet and the banks providing Services are listed on the accompanying List of Banks and Services,
which we may change from time to time. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the
meanings given to them in the Booklet.
After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the
Booklet. The Client may begin to use any such Service once Bank has approved such use and has received all required and properly executed
forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the
Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services.
I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver
on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to a Service. I am ,
authorized to enter into all transactions contemplated by the provision of Services to the Client. These may include, but are not limited to, giving
the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of
the Client.
Guidelines for completion:
If Client is a: Who must sign:
corporation ,.,.,...".........., .any authorized officer
limited liability company. . , , . . , , . . . .all members, or any authorized officer*
partnership (general or limited) , , . . , . .any general partner*
limited liability partnership. . . . . , .. . .the managing partner*
sole proprietorship ...,.."..,.... .the sole proprietor
governmental entity. . . . , . . , . . . . . . . .the Treasurer*
* Includes any individual authorized under Client's charter or organizational or constituent documents. The legal name of any member,
managing member, manager or general partner who is signing and who is not an individual must appear in the signature block. Note that
in most cases the Client must also complete the Certification form which follows.
f{1(f//3109
[Signature, if two are required by Client]
[Sign
Catherine A. Jo
[Print Name]
Finance Officer
[PrintTitle (include the legal name of any member, managing
member, manager or general partner who is signing and who
is not an individual)]
[Print Name]
[Print Title (include the legal name of any member, managing
member, manager or general partner who is signing and who
is not an individual)]
The following addresses may be used for giving notices in connection with this Booklet except as you or we provide the other different addresses
to be used in conjunction with your accounts or particular Services,
Address for Client Notices:
~fiXn8fa~~~:rggs Department
345 6th Street, Suite 600
Bremerton WA 98337
Telephone: ( 360) 473-5296
Fax: L36D 473-')200
Address(es) for Bank Notices:
Bank of America, N.A,
Documentation Management (CA4-706-04-07)
P.O. Box 27128
Concord, CA 94527-9904
Fax I~o.: (925) 675-7131
and, if filled in, the following:
Telephone: L--)
Fax: L--)
AD-AG-04558
TREASURY SERVICES DELEGATION OF AUTHORITY FORM
This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to someone other than the
person who signed the Authorization and Agreement form in the front of this Booklet.
By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B below, acting
alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including but not
limited to designating one or more persons (which may include himself or herself) authorized to initiate, amend, cancel, confirm or verify the
authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization
granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service
with us, unless otherwise specified. We are entitled to rely upon this delegation until written notice of its revocation is received by us.
Guidelines for CompLetion: FiU out either section A or section B, or both, depending on your needs.
. To delegate authority to any person holding a specific title, fill out section A.
. To delegate authority to specific individuals by name, fill out section B.
For each name or title, indicate "All" in the "Service" column if the person or title has authority to sign documents for all Services which you
receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or
entities for which the person or title has authority to sign documents.
)
A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS
Dir. Financial Services All Gitv of nBr:-emerton
Finance Officer All Citv of Bremerton
Title
Service
Entity
B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS
CLIENT AUTHORIZATION
Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this
Treasury Services Delegation of Authority form.
6/28/06
[Sig re]
Catherine
[Print Name]
Finance Officer
[Print Title (include the legal name of any member, managing
member, manager or general partner who is signing and who
is not an individual)]
Dated
AD-AG-045 5 B
CARD PROCESSING AGREEMENT
This CARD PROCESSING AGREEMENT ("Agreement") is among the
Merchant identified in the attached Application and its accompanying
documentation, including the Fee Schedule (which documents are
incorporated herein and constitute a part of this Agreement as if fully set
forth herein), Bank of America, N.A., with its principal office in Charlotte,
North Carolina ("Bank") and BA Merchant Services, LLC., an Ohio
limited liability company headquartered in Louisville, Kentucky ("BA
Merchant Services"). BA Merchant Services is engaged in the business of
processing and transmitting electronic data of a financial, banking or
economic natureol including but not limited to card transactions. Bank is a
member of Visa U.S.A., Inc. ("Visa") and MasterCard" International Inc.
("MasterCard"). In this Agreement, the words "you" and "your"mean the
Merchant and the words "we," "our" and "us," unless the context clearly
requires otherwise, refer collectively to Bank and BA Merchant Services.
We may allocate our rights and obligations hereunder as between
ourselves as we deem appropriate. During the term of this Agreement and
unless we otherwise specifically agree in writing, this will be a
"requirements contract" which means we and you agree that we (directly
or through others providing services on our behalf) will be the sole
providers of all services necessary to 1) authorize, process and settle all of
your Visa and MasterCard credit and off-line debit Card transactions, 2)
process and settle all of your online debit Card transactions, 3) authorize,
process and settle all of your point of sale Electronic Benefit Transfer
("EBT") transactions, and 4) all services specified in the Application for
any other Cards specified therein. Notwithstanding the foregoing, we will
not process any Visa or MasterCard Card transactions beyond the
authority of a U.S. member of Visa and MasterCard.
1. Definitions. In this Agreement, the following definitions apply and
are capitalized throughout:
"Application" - both the Application as attached to this Agreement when
first executed by you and approved by us and any supplemental versions
of the Application that you and we agree upon when you open additional
locations or when you otherwise request additional or different services.
"Authorization" - the process whereby a Card transaction for a specified
dollar amount is approved by the card-issuing bank or its approved agents
for processing.
"Card" - means a credit, off-line debit card, online debit card or EBT card
bearing the service mark of Visa or MasterCard or issued by any of the
other card issuers or Network specified in the Application as being
covered by this Agreement. Unless otherwise agreed in writing, "Card"
includes online debit cards. such as an Interlink or Maestro debit cards that
generally require use of the holder's PIN. "Card" will also mean all
international point of sale payment cards bearing one of the Electron
Program Marks and governed by the Visa International Operating
Regulations.
"Cardholder" - the person to whom the Card has been issued and/or the
authorized user. For the purposes of this Agreement, thei term
"Cardholder" will also include any Recipient as defined herein below:
"Card Issuer(s)" - American Express, Diners Club/Carte Blanche.
Discover Financial Services. Inc. (the issuer of Discover Cards and certain
other cards), ICB, Visa. MasterCard, and any other card issuers designated
on the Application.
"Card Organization(s)" - a card organization such as Visa or
MasterCard that promulgates operating rules and operates an interchange
system for exchanging charges and credit vouchers among you. Card
Issuers and us. [n the case of online debit cards and EBT cards, "Card
Organization" includes Debit Networks and EBT Networks. respectively.
"Charge back" - the return of any Card transaction. even without notice
to you or without consent from you, upon occurrences permitted by the
Card Organizations. A Chargeback is initiated by a Cardholder or a Card
Issuer, for transmittal to and payment by you under the Rules. For the
purposes of online debit Card transactions, the term "Chargebacks" in this
Agreement will also be construed as "Chargebacks/adjustments."
"Debit Network(s)" - the telecommunications and processing system of
each shared electronic funds transfer network of which we are a member
that is used by network members to allow their Cardholders to purchase
goods and services using the member bank's propriety debit card at a point
of sale. The term includes all Debit Networks as specified by us from time
to time.
"Electronic Benefits Transfer (EBT)" - the electronic transfer of
government benefit funds to individuals through the use of Card
technology with POS terminals.
BAMS Merchant Services Agreement (Commercial) (10-28-05)
"EBT Network(s)" - the system of each shared electronic funds transfer
network that is used by network members to assist government agencies in
the distribution of benefits to eligible Recipients, whether such benefits are
the delivery of services or the transfer of funds or information.
"ISO/MSP" - independent sales organization/member service provider.
"Manuals/Instructions" - various manuals and instructions regarding
Chargebacks, terminal processing and other operational compliance
matters supplied to you or available on the internet.
"Merchant Provider(s)" - any and all of the third parties engaged by you.
"MO/TO/IO" - mail order/telephone order/internet order
"PIN" - Personal Identification Number.
"Recipient" - the recipient of United States Department of Agriculture,
Food and Nutrition Services ("FNS") food stamp benefits ("FS Benefits")
and/or Temporary Assistance to Needed Families (''1 ANF") benefits
and/or other government delivered cash assistance benefits
"Rules" - any and all rules and regulations adopted by a Card
Organization, Debit Network and/or EBT Network. Some Rules are
available to you on the Internet (see Section 3).
"Settlement Account" - the bank account(s) you designate for us to debit
and credit for Card transactions and related amounts.
"State" - a State participating in an EBT Project.
"System Enhancements" - any system enhancements, custom reports,
special files, terminal applications or related service enhancements that are
different from or in addition to the system, services and reports we agreed
to provide to you as of the effective date of this Agreement.
2. Acceptance of Cards.
a) You may elect to accept:
(i) A. all MasterCard cards, including consumer credit and
business cards and off-line debit cards (you must
maintain a policy that does not discriminate among
customers seeking to make purchases with any
MasterCard card),
B. MasterCard consumer off-line debit cards only (you
must maintain a policy that does not discriminate
among customers seeking to make purchases with an
off-line debit MasterCard card),
C. MasterCard consumer credit and business cards only
(you must maintain a policy that does not
discriminate among customers seeking to make
purchases with any MasterCard credit card), or
D. No MasterCard cards;
and
(ii) A. all Visa cards, including consumer credit and
business cards and off-line debit cards.
B. Visa consumer off-line debit cards only (includes
mandatory acceptance of all Visa consumer debit
card products),
C. Visa consumer credit and business cards only
(includes mandatory acceptance of all Visa credit and
commercial products including Visa business check
cards), or
D. No Visa cards:
The above-referenced acceptance options apply only to U.S. transactions.
The Visa and MasterCard rules and regulations require merchants
accepting any Card product bearing a Visa or MasterCard symbol to
continue to accept both debit and credit card products issued by non-U.S.
Members. You may selectively reject or decline transaction requests for
Card account numbers that are within a product category not accepted by
you. Should you submit a transaction outside of the Card or product
categories regularly accepted by you, there is no requirement for us to
reject the transaction. If you elect limited acceptance as set forth on the
Application, any transaction submitted into interchange outside of the
selected Card or product category will be assessed the standard
interchange reimbursement fee applicable to that product or any other
applicable fee set forth on the application. Your initial election will be
made in your Application. If you wish to modify your election and we
agree to said modification, then you will provide us sixty (60) days
advance notice of your intent to change said election in writing, and you
will be responsible for any Card Organization charges assessed as a result
of your limited acceptance and any and all costs incurred by us as a result
of your election.
b) You must honor any valid and applicable Visa and MasterCard Cards,
including credit, off-line debit and online debit Cards, properly tendered
for use. as well as any properly tendered Electron card or EBT Card,
without imposing any special conditions not required by any Rules.
However, if you do not deal with the public at large (for example, if your
business is a private club), you are required to honor a valid Card only if
presented by a Cardholder who has purchasing privileges or a membership
with you. You may offer a "discount for cash" if you clearly disclose this
as a discount from the standard price available for all other means of
payment. You may present Card transactions to us only for the activities
and in the volumes described on the Application, including the percentage
of MOrrOIIO transactions. Any Card transaction volume exceeding the
volume indicated on the Application by more than twenty five percent
(25 %) must be approved in writing by our authorized officer before you
submit Card transactions to us. You must submit any Card transaction
drafts and records to us no later than five (5) calendar days or three (3)
banking days (whichever is earlier)(and no later than two (2) business days
for Electron Cards) after you complete Card transactions (unless you are
entitled to any special extension of these deadlines). These are outside
deadlines. and faster time frames are required to Qualify for incentive
programs. if applicable. Unless otherwise specifically provided in this
Agreement or the applicable requirements of Visa or Visa International, all
provisions of this Agreement applicable to Visa Cards also will apply to
Electron Cards. Electron Card transactions are permitted only in face-to-
face transactions when the Card and the Cardholder are present. You must
process any Electron Card transactions through an electronic data capture
terminal that obtains an electronic Authorization response and prints a
transaction receipt. You agree to check the valid date and expiration date
of each Card presented. You have a zero "floor limit", which means you
agree to process only Card transactions for which you have received an
Authorization. Obtaining an Authorization will not assure payment to you
for a Card transaction. The fact that an Authorization is obtained by you
will not affect our right thereafter to revoke Authorization of a Card
transaction or to charge back the transaction to you, except if prohibited by
the Rules. In no event will the fact that an Authorization is obtained by
you be deemed to be our representation or warranty, either express or
implied, that the panicular Card transaction is in fact a valid, authorized or
undisputed transaction entered into by the Cardholder. If you are
approved to utilize batch Authorization by us, you may obtain batch
Authorization for cenain sales after such sales have occurred provided,
however, that Authorization for each transaction is obtained by end of the
calendar day upon which such sale was initiated and that you do not
preson the batch by account number or BIN. Funher, you explicitly agree
that you will be responsible for any fines, fees, Chargebacks, assessments,
and declined or disputed transactions that may result from using a batch
Authorization process.
For each Card transaction submitted to us, you represent and warrant that:
(a) the transaction represents obligations of the Cardholder for the amounts
in the transaction (including tax. but without any surcharge) and only for
merchandise actually sold or rented or services actually rendered by you
(except for any delayed delivery or advance deposit authorized by the
Rules and this Agreement) and does not involve any element of credit for
any other purpose, (b) the transaction represents a bona fide sale/rental of
merchandise and/or services not previously submitted and, except as
otherwise provided in the Rules, does not represent a refinancing of any
prior obligation (including any obligation otherwise owed to you by a
Cardholder, or arising from the dishonor of a personal check), (c) the price
charged for the transaction is not be subject to any dispute, setoff or
counterclaim, (d) the transaction does not result from any transaction
outside of your normal course of business, as described in the Application,
and (e) you have no knowledge or notice of any fact, circumstances or
defense which would indicate that the transaction was fraudulent or not
authorized by the Cardholder or which would otherwise impair the validity
or collectibility of the Cardholder's obligation or relieve the Cardholder
from liability for the transaction.
Unless we otherwise agree in writing, you may not accept Card
transactions for services or products that will be delivered or provided
more than thiny (30) days from the date you submit any ponion of said
transaction for settlement. You may not process transactions using your
own. personal or business Cards or those of your employees, officers,
spouses, etc. Transactions of this type can be considered advances of cash
and are not permissible under this Agreement or the Rules and regulations.
You acknowledge that we may use an ISO/MSP operating under
applicable Rules and regulations. ISO/MSP is an independent contractor
and not an agent of BA Merchant Services/Bank. ISO/MSP has no
authority to execute the Agreement on our behalf or to alter the terms
BAMS Merchant Services Agreement (Commercial) (10-28-05)
hereof without our prior written approval. Any alteration of the terms of
this Agreement must be initialed and approved by us.
You will be responsible for the quality and accuracy of all data provided to
us. We may, at our option, return to you for correction before processing
any data submitted by you which is incorrect, illegible or otherwise not in
proper form. If you do not provide your data to us in accordance with our
specified format and schedule, we will use reasonable efforts to reschedule
and process the data as promptly as possible, but related expenses incurred
by us will be charged to you.
We will make the services selected by you operational and available to
you upon a mutually agreed upon implementation plan. You agree to
cooperate with us and provide us with all necessary information and
assistance required for us to successfully make the services operational
and available to you. You agree that, except as otherwise contemplated
herein or otherwise permitted by us, you will use the services provided by
us only for your own internal and proper business purposes and will not
resell, directly or indirectly, any of the services or any portion thereof to
any third party.
3. Manuals/Instructions. We will provide or make available to you the
ManualslInstructions and may from time to time otherwise advise you of
requirements imposed by the Rules by providing you with relevant
ponions or summarizations thereof of the rules, regulations, releases,
interpretations and other requirements of Visa, MasterCard and any other
issuers of Cards, including Debit and EBT Networks. which you accept as
specified in the Application. You agree to follow the procedures in the
ManualslInstructions in connection with each Card transaction and to
comply with all requirements of the Rules. Unless the context clearly
requires otherwise, references to this Agreement include the
ManualslInstructions and the Rule provisions. If there is any conflict
between the terms of this Agreement and the ManualslInstructions, the
terms of this Agreement will govern, except to the extent the
ManualslInsrructions specifically provides that a panicular provision in it
overrides any conflicting provision in this Agreement. Additional
information is available at the Visa web site (download the "Card
Acceptance & Chargeback Cycle Management Guide" under the
"Operations & Risk Management" section at
hrro://www.usa.visa.comlbusiness/accepting visa) and the MasterCard
web site (download the "Merchant Rules" under the "Accept MasterCard"
section at (hrro://www.rnastercardmerchant.com ).
4. Merchant Representations. You represent that (a) you have the full
power and authority to sell the products and services you offer and to
display the advenisements you use; (b) no products or services offered by
you constitute a violation of any applicable law and you will not accept a
Card for any illegal transaction; (c) you will prominently and
unequivocally inform each Cardholder of your identity at all points of the
interaction between the Cardholder and you so that the Cardholder can
readily distinguish you from any other party such as a supplier of goods or
services to you; (d) the products and services offered by you and the name
of your business do not infringe upon the rights of any other person,
including, without limitation, trademark. copyright, confidentiality or
patent rights; and (e) you will not sell, market or display any products or
services that would jeopardize the Bank's reputation.
For each Card transaction submitted to us, you represent and warrant that:
(a) the transaction represents obligations of the Cardholder for the amounts
in the transaction (including tax, but without any surcharge) and only for
merchandise actually sold or rented or services actually rendered by you
(except for any delayed delivery or advance deposit authorized by the
Rules and this Agreement) and does not involve any element of credit for
any other purpose, (b) the transaction represents a bona fide sale/rental of
merchandise and/or services not previously submitted and, except as
otherwise provided in the Rules, does not represent a refinancing of any
prior obligation (including any obligation otherwise owed to you by a
Cardholder, or arising from the dishonor of a personal check), (c) the price
charged for the transaction is not be subject to any dispute, setoff or
counterclaim, (d) the transaction does not result from any transaction
outside of your normal course of business, as described in the Application,
and (e) you have no knowledge or notice of any fact, circumstances or
defense which would indicate that the transaction was fraudulent or not
authorized by the Cardholder or which would otherwise impair the validity
or collectibility of the Cardholder's obligation or relieve the Cardholder
from liability for the transaction.
5. Additional Cards. Our sole responsibility for transactions involving
Cards issued by American Express, Diners Club/Carte Blanche, Discover
Financial Services, Inc. (the issuer of Discover Cards and certain other
cards) and JCB will be to provide the services which we have agreed to
provide, as specified in the Application.
Except to the extent the Application specifies that we will provide
settlement services for any of these additional Card transactions, we will
provide Authorization and/or processing services only, and all settlement
and Chargeback obligations and similar financial responsibilities arising
from your transactions involving Cards other than Visa and MasterCard
will be governed exclusively by your agreement with the respective Card
Issuer and you must not seek Authorization for or submit for processing or
settlement any transactions involving Cards other than Visa and
MasterCard unless you have in effect a valid agreement with the
applicable Card Issuer, except to the extent we have agreed to provide
settlement services with respect to your lCB, Diners Club/Carte Blanche
or Discover Card transactions. You must notify us immediately upon
termination of any issuer agreement. Upon such termination, we will have
no further obligation to provide any services to you for transactions
involving the Cards covered by the terminated issuer agreement (except to
the extent we have agreed to provide settlement services with respect to
your lCB, Diners Club/Carte Blanche or Discover Card transactions). We
do not warrant or bear any responsibility for any Card Issuer or for its
performance of any obligations to you. If any agreement with a Card
Issuer requires such Card Issuer's consent for us to perform the services
contemplated by this Agreement, you are responsible for obtaining that
consent.
a) If the Application indicates that we will provide settlement
services with respect to your Diners Club/Carte Blanche Card
transactions, you will not have a separate agreement with such Card
Issuer; instead, we will provide you with all specified services for
such Card transactions solely pursuant to this Agreement (and any
provisions from the ManualslInstructions or any updates thereto). In
addition, the following special provisions apply (notwithstanding any
contrary provision in this Agreement) to your lCB or Diners
Club/Carte Blanche Card transactions to be settled by us:
a) For Diners Club/Carte Blanche: (i) you must retain original sales
records and credit records for at least ninety (90) days after the
transaction and must retain microfilm or legible copies of sales
records and credit records for at least seven (7) years after the
transaction; and (ii) you must not accept a Card embossed "for local
use only" outside the territory in which it was issued.
b) For lCB: (i) you must retain original sales drafts and credit
vouchers for at least 120 days after the transaction and must retain
microfilm or legible copies of sales drafts and credit vouchers for at
least three (3) years after the transaction; (ii) for purposes of your
Chargeback liability with respect to lCB Card transactions, an
Authorization obtained on a transaction does not override any
Chargeback reason which may apply to the item; (iii) if you process
lCB Card transaction data electronically, your account number must
be included in the lCB Card transaction data transmitted to us, in
addition to the other information required to be included on each
sales draft or credit voucher; (iv) if you are a lodging merchant, lCB
Cardholders must be allowed to cancel reservations at resort
establishments until 4:00 p.m. on the scheduled arrival date; and (v)
by contracting for lCB settlement services, you authorize lCB to
publish your name, address and telephone number in lCB solicitation
materials.
6. Access to Debit Networks and Use of Services. In entering into this
Agreement and performing services for you with respect to online point of
sale debit transactions. we will provide you with access and sponsorship or
will cause you to be provided with access and sponsorship to the point of
sale Debit Networks specified by us. Any penalties incurred by you for
failure to comply with Debit Network Rules will be your responsibility.
You assume exclusive responsibility for the consequences of any oral or
written instructions you may give to us, for your failure to properly access
the services in the manner prescribed by us, and for your failure to supply
accurate input information. You will be responsible for auditing,
balancing, verifying and reconciling any out-of-balance condition, and for
notifying us of any errors in the foregoing after receipt of the applicable
report from us. You will reject all incorrect reports or output within two
(2) Business Days after receipt of the reports or output.
Except as otherwise provided in this Agreement, you will be responsible
for the supervision, management and control of your use of our systems,
including without limitation (1) implementing sufficient procedures to
satisfy its requirements for the security and accuracy of the input you
provide, and (2) implementing reasonable procedures to verify reports and
other output from us within the time frames specified here in above. You
agree that you will use the services in accordance with such reasonable
rules as may be established by us from time to time as set forth in any
materials furnished by us to you.
7. EBT Transactions. If elected by you on the Application, you wish
to purchase from us and we wish to sell to you certain services necessary
for the authorization, processing and settlement of point of sale EBT
transactions submitted to the EBT Networks and which transactions are
BAMS Merchant Services Agreement (Commercial) (10-28-05)
initiated through you in connection with the authorization, providing
and/or issuance of United States Department of Agriculture, Food and
Nutrition Services ("FNS") food stamp benefits ("FS Benefits") and/or
Temporary Assistance to Needed Families ("T ANF") benefits and/or other
government delivered cash assistance benefits ("Cash Benefits" with FS
Benefits, "Benefits") to benefit recipients in the EBT Project areas
("Recipients") supported by us through the applicable gateway through the
use of a State-issued Benefit Security Card ("EBT Card") issued by a state
participating in the EBT Project and benefit recipients of other states not
within the Project area ("Other Recipients"). You agree to provide and/or
issue Benefits at each of your locations to the Recipie'nt as hereinafter
provided and in accordance with the procedures specified by us, the
applicable EBT Network or State's EBT rules and regulations as amended
from time to time and all applicable laws governing the issuance and/or
provision of Benefits. You will provide each Recipient a receipt for each
Benefit issuance transaction undertaken by you. You will be solely
responsible for your issuance of Benefits other than in accordance with
authorizations received from us.
You will provide us, upon execution of this Agreement, with a complete
list of all of your locations in the continental United States where you
desire to accept EBT Cards, with correct and complete mailing addresses
and complete telephone numbers, in location number order. You will
provide an updated list at our request or as changes occur. All locations
from which you accept EBT Cards will be subject to this Agreement and
will be included on the lists provided from time to time by you to us.
You will honor any valid EBT Card properly tendered for use when it is
presented with a valid personal identification number (PIN). You will not
engage in acceptance practices or procedures that discourage the use of
any valid EBT Card. You will not complete any point-of-sale EBT Card
transaction that has not been authorized. You will ensure that if Recipient
enters a valid PIN, you will not require another form of identification from
Recipient unless you have grounds to suspect fraud.
You will provide and/or issue Benefits to Recipients, in accordance with
the policies and Rules in the amount authorized through your point-of-sale
terminal, with PIN Pad and printer ("Equipment"), upon presentation by
Recipient of an EBT Card and Recipient entry of a valid PIN . You agree
that in the event of failure of the Equipment to print Benefit issuance
information as approved and validated as a legitimate transaction, you will
comply with our procedures and rules for authorization of Benefits in such
instance.
If you have agreed to Cash Benefits, you agree to maintain adequate cash
on hand to issue and/or provide confirmed Cash Benefits and will issue
and/or provide Cash Benefits to Recipients in the same manner and to the
same extent cash is provided to your other customers. You will not
require, and will not in the advertising suggest, that any Recipient must
purchase goods or services at your facilities as a condition to the issuance
and/or provision of Cash Benefits to such Recipient, unless such condition
applies to other customers as well. You will not designate special
checkout lanes restricted to use by Recipients, provided that if you
designate special checkout lanes for electronic debit, or credit cards and/or
other payment methods such as checks or other than cash, Recipients may
be directed to such lanes so long as other customers are directed there as
well.
If you support the issuance and/or provision of FS Benefits through
manual benefit issuance procedures during the period of time when normal
benefit issuance is not possible, then the following limitations will apply to
manual issuance and/or provision ofFS Benefits by you.
(i) You must receive an authorization number for the
amount of the purchase via telephone at the time of sale.
(ii) Specified Recipient, clerk and sales information,
including the telephone authorization number, must be entered
properly and legibly on the manual sales draft form.
(iii) The manual sales draft must be submitted to the
applicable EBT Network for processing within ten (10)
calendar days following the date of authorization or any such
earlier period of time specified in any applicable rules or
regulations.
(iv) Except as otherwise specifically provided by any
applicable rules or laws, you will not be reimbursed and will be
solely responsible for all manual transactions when you fail to
obtain an authorization number at the time of sale or otherwise
fail to process the manual transactions in accordance with any
applicable Rules or laws.
(v) Except as otherwise specifically provided by any
applicable Rules or laws, you may not "resubmit" a manual
sales draft for payment if insufficient funds exist at the time that
the manual sales draft is presented for processing and payment.
You agree to comply with all applicable laws and Rules in the
performance of your obligations under this Agreement, including without
limitation, laws penaining to delivery of goods and services to Benefit
Recipients and Benefit Recipient confidentiality, and the federal Civil
Rights Act of 1964, Rehabilitation Act of 1973, Americans with
Disabilities Act of 1990, Clean Air Act, Clean Water Act, Energy Policy
and Conservation Act, Immigration Reform and Control Act of 1986, and
regulations issued by the Depanment of Agriculture penaining to Food
Stamp Program regulation.
You agree to comply with Quest Operating Rules issued by the National
Automated Clearing House Association ("NACHA") as approved by FNS
or the Federal Reserve Bank and such other Rules and regulations as may
be applicable to the providing and/or issuance of Benefits by you
hereunder. You agree to comply with all additional procedures specified
by the State or EBT Networks, regarding lost EBT Cards, forgotten PINs,
discrepancies in benefits authorized and similar matters.
You will not accept any EBT Card for any purpose other than the
providing and/or issuance of Benefits, including without limitation as
security for repayment of any Recipient obligation to you. In the event of
any violation of this provision, you will be obligated to reimburse the State
for any Benefits unlawfully received by either Recipient or you.
You agree to separately maintain records of EBT transactions as may be
reasonably requested or required by the State or its designated agent and to
promptly make such records available for audit upon request to
representatives of the State or its designated agent, or other authorized
State or Federal government agency during normal business hours.
To assure compliance with this Agreement, the State, its designated agent,
or other authorized State or Federal governmental agency, will at all times
have the right to enter, during normal business hours, your premise to
inspect or evaluate any work performed under this Agreement, or to obtain
any other information required to be provided by you or otherwise related
to this Agreement.
You agree to maintain and preserve all financial records or documentation
arising hereunder during the course of this Agreement and for a period of
three (3) years following Benefit provision and/or issuance, or for such
additional period as applicable regulations or law may require. Records
involving matters in litigation will be kept for a period of not less than five
(5) years following the termination of the litigation.
If you provide or issue FS Benefits under this Agreement, you represent
and warrant to us that you are a FNS authorized retailer and you are not
currently disqualified or withdrawn from redeeming food stamps or
otherwise disqualified or withdrawn by FNS. You agree to secure and
maintain at your own expense all necessary licenses, permits, franchises,
or other authorities required to lawfully effect the providing and/or
issuance and distribution of Benefits under this Agreement, including
without limitation, any applicable franchise tax cenificate and non-
governmental contractor's certificate, and covenants that you will not issue
Benefits at any time during which you are not in compliance with the
requirements of any applicable law.
Your authority to issue Benefits may be suspended or terminated by the
State or its agents or contractors, in their sole discretion, effective upon
delivery of a notice or suspension or termination specifying the reasons for
such suspension or termination if there will be (i) any suspension,
injunction, cessation, or termination of our ability to provide EBT
processing services, or (ii) failure by you, upon not less than thiny (30)
days prior written notice, to cure any breach by you of the provisions of
these terms and conditions, including without limitation, your failure to
suppon the issuance of Benefits during your normal business hours
consistent with your normal business practices, your failure to comply
with issuance procedures, your impermissible acceptance of an EBT card,
or your disqualification or withdrawal of the FS program.
8. Availability of Terminals. You will take all reasonable steps
necessary to ensure that all point-of-sale devices and PIN pads will be
available for use by the Cardholders of each Debit and EBT Network to
which you are being provided access as set forth on the Application for the
Cardholders online debit card transactions and such devices and PIN pads
will function in a reliable manner.
9. Age-Restricted Products. If you are engaged in the sale of age
restricted products such as alcoholic beverages, tobacco products, adult-
content material or adult Web sites, gaming transactions, weapons and/or
any other applicable age-restricted products or services, you must comply
fully with all local, state and federal laws governing the distribution of age-
related products. You certify herein that you will implement age verification
procedures governing the sale of such products, including age verification of
each customer against an official government records database before
entering certain transactions into the credit card payment system. For face-
to-face sales, you will require the signature of the Cardholder. To verify
BAMS Merchant Services Agreement (Commercial) (10-28-05)
legal age, you will also require the Cardholder to present a valid,
government-issued photo identification card in the same name and address as
the Cardholder. For sales made via mail, telephone and/or the Internet, you
will (1) only deliver age-restricted products to the name and address listed as
belonging to the Cardholder, and (2) require, without exception, the
signature of the Cardholder, as well as presentation of a valid, government-
issued photo identification card in the same name and address as the
Cardholder to verify legal age upon delivery of the merchandise. Failure to
abide by all applicable age verification laws may result in fines and/or loss of
card merchant services privileges, as well as termination of your account
with us.
10. Settlement of Card Transactions. All credits to the Settlement
Account, as well as any other payments to you, are provisional and are
subject to our final audit and checking. We may debit or credit your
Settlement Account for any deficiencies and overages or may deduct such
amounts from settlement funds due to you. We may, within our sole
discretion, delay your settlement payments for up to seven (7) days, which
period will begin after the settlement payments were received by us. In
this event, you acknowledge that we will, and you expressly authorize us
to, delay your settlement payments for up to seven (7) days. This delay of
your settlement funds does not preclude us from exercising our right to
establish a reserve/security account or to suspend payments pursuant to
Section 17 of this Agreement. The settlement payments will begin to be
credited to your Settlement Account, less any monies owed us, on the next
business day following expiration of this rolling delay period. This rolling
delay of the settlement payments will be ongoing and continue as long as
we are providing your processing services.
Except as otherwise set forth in this Agreement, if we receive your sales
records or other transaction records by the applicable cut off time'
established by us, we will initiate a transfer of applicable settlement funds
received from Visa and MasterCard, less any monies owed us, through the
ACH to your Settlement Account once we receive said funds from Visa
and MasterCard; this will generally occur by 8:00 P.M. Eastern time on
the following banking day after we process the applicable transactions.
This Agreement is a contract whereby we are extending financial
accommodations to you within the meaning of Section 365(c) of the
Bankruptcy Code. We are not liable for any delays in receipt of funds or
errors in debit and credit entries caused by unaffiliated third panies
including but not limited to the Card Organizations, Debit Networks, EBT
Networks, a clearing house or your financial institution.
To the extent the Automated Clearing House (ACH) settlement process is
used by us to effect debits or credits to your Settlement Account for the
services elected by you on the Application, you hereby agree to be bound
by the terms of the operating rules of the National Automated Clearing
House Association, as are in effect from time to time. You hereby
authorize us to initiate credit and debit entries and adjustments to your
Settlement Account through the ACH settlement process and/or through
direct instruction to (or such other arrangements as we deem appropriate
with) the financial institution where your Settlement Account is
maintained for amounts due to us under this Agreement and under any
agreements with us or our affiliates for any related equipment and related
services, as well as for any credit entries in error. You hereby authorize
and direct the financial institution maintaining your Settlement Account to
effect all such debits and credits to your account initiated by us. This
authority will remain in effect until we provide written notice to the
financial institution maintaining your Settlement Account that all monies
due from you to us or our affiliates for any related equipment or services
have been paid in full. For the duration of the Agreements, you will be
solely liable for all fees and charges assessed by your financial institution,
including all overdraft and NSF charges, and you irrevocably release us
and hold us harmless from the same fees and charges, regardless of cause.
All sales and credits accepted by us are subject to audit and verification by
us and you agree that we may debit or credit your Settlement Account for
any inaccuracies, and we will have the right to charge you for any
improper sales slips and return them to you.
11. Fees; Adjustments; Collection of Amounts Due From You.
a) CREDIT AND OFF-LINE DEBIT CARD
TRANSACTIONS ONLY: Our fees and other charges to you
for the services and any supplies we provide will be calculated
pursuant to this Section, the Application and the Fee Schedule
or any subsequent amendment to this Agreement or the Fee
Schedule. Fees and charges for related services and equipment
will be specified on the Fee Schedule. We will charge you a fee
daily for the services to be provided by us to you under this
Agreement as stated in this Section and the Fee Schedule. The
fees with respect to Card transactions will be a percentage of the
gross amount of a Card transaction or an inquiry fee for each
Card transaction. The discount fees shown in the Fee Schedule
will be calculated based on the gross amount of all Visa and
MasterCard transactions submitted to us. The inquiry fee will be
assessed on every communication attempt from your point of
sale device. Further, you will pay, in accordance with this
Agreement, all fees, cost escalations, assessments, tariffs,
penalties, fines or other items that may be charged, assessed or
imposed under this Agreement and/or the Rules. The Visa and
MasterCard interchange fees and assessments, which are
separately specified on the Fee Schedule if your processing fee
is stated as a per transaction dollar amount, or are part of the
processing fee if it is stated as a percentage of the dollar volume
of transactions, are based on the current interchange rates and
assessments set by Visa and MasterCard. Any increases in
these interchange fees and assessments will be passed through
to you either as part of the separately stated interchange fees
and assessments or as part of any percentage-based processing
fee. You acknowledge that whenever your transactions fail to
qualify for any reduced interchange fees, we will process such
transactions at the applicable interchange fees as set by the
applicable Card Organization, and you will pay us the
corresponding interchange fees (or any percentage-based
processing fee based on the corresponding interchange fees).
You acknowledge that the fees specified in the Fee Schedule, as
they may be updated or amended from time to time, are basic
fees, the lowest discount fee you can achieve, and will apply
only to Card transactions which exactly meet certain processing
criteria or "qualify" for basic fees according to the Rules.
Criteria for determining qualification will include, but not be
limited to, whether a Card transaction is: (1) hand entered (the
required data is not electronically captured by a point-of-sale
device reading the information encoded in or on a Card); (2)
voice authorized; (3) not authorized; (4) transmitted for
processing within twenty-four (24) hours of the Card
transaction; or (5) deemed "Non-Qualifying" by the Rules, such
as, but not limited to, Card transactions involving foreign Cards
or Cards issued as business, commercial, purchasing or
government Cards. In the event that Card transactions
submitted to us for processing only partially qualify or do
not at all qualify for the qualified discount rate quoted in
accordance with the Fee Schedule and/or the Rules, you may
be assessed and agree to pay an additional Non-Qualified or
Mid-Qualified Surcharge if set forth on the Fee Schedule.
Also, if your average ticket size and/or annualized Bankcard
volume falls below the amount shown in the Application and/or
Fee Schedule for any three (3) month period, we may adjust our
fees as we deem appropriate, and you will pay us the
corresponding adjustments.
b) ONLINE DEBIT CARD TRANSACTIONS ONLY: We will
charge the BA Merchant Services processing fee set forth on the
attached Fee Schedule for each debit transaction submitted to
each Debit Network regardless of whether such transaction is
approved, declined, or determined invalid. In addition, you will
be assessed for each debit transaction a Debit Network fee,
which is a blended fee based on the transaction fees assessed by
the various Debit Networks. The current Debit Network fee set
forth on the attached Fee Schedule is based upon Debit Network
fees currently in effect and upon certain sponsorship
arrangements made by us with a Debit Network Sponsor
(Sponsor) for your sponsorship needed to participate in each
applicable Debit Network. You agree that should any Debit
Network or Sponsor raise or lower its interchange fees or other
charges, we will have the right to adjust your fees to reflect the
increase or decrease in such fees or charges. You agree to pay
for all Debit Network or Sponsor setup fees, Chargeback fees
and adjustment fees including but not limited to late fees which
may be imposed by Debit Networks and Sponsors. Any taxes so
imposed will be exclusive of the taxes based on our net income.
We will charge you the daily/monthly fees as set forth on the
Fee Schedule for the services to be provided pursuant to this
Agreement and such other fees as set forth thereon and such
amounts will be payable as provided for in the Fee Schedule,
this Section and Section 17. Said fees may be collected
hereunder in accordance with the terms and provisions of the
Fee Schedule, this Section and Section 17.
c) EBT TRANSACTIONS ONLY: We will charge you a fee for
each EBT Card transaction as set forth on the attached Fee
Schedule regardless of whether said transaction is approved,
declined or determined invalid.
HAMS Merchant Services Agreement (Commercial) (10-28-05)
You acknowledge that the aforesaid fees set forth on the
attached Fee Schedule are based upon certain EBT Network,
State, gateway and access fees currently in effect and upon
certain sponsorship arrangements made by us with an EBT
Network for your sponsorship needed to participate in the EBT
project and to certain other States not within the EBT Project
area.
You agree that should any State or U.S. government entity or
any of a State's or U.S. government's designated agents charge
a fee or assess any charges on or in connection with EBT Card
transactions then we will have the right to adjust our fees to you
to reflect the increase in such fees or charges.
You agree to pay for all gateway and access fees, EBT Network
fees, setup, adjustment or chargeback fees which may be
imposed by us, an EBT Network or a State participating in the
EBT Project.
You agree to pay any taxes imposed on us as a result of the
services furnished to you on the transactions under and subject
to this Agreement during the term of this Agreement and such
taxes will be added to the charges owed to us and will be
deducted from the settlement monies owed to us in accordance
with the Agreement terms or immediately paid by you to us
upon receipt of issuance. Any taxes so imposed will be
exclusive of the taxes based on our net income.
We will charge you the daily/monthly fees as set forth on Fee
Schedule for the services to be provided pursuant to this
Agreement and such other fees as set forth thereon and such
amounts will be payable as provided for in Section 10. Said
fees may be collected hereunder in accordance with the terms
and provisions of this Section, Section 17, and the Fee
Schedule.
d) ALL CARD TRANSACTIONS: You will pay any applicable
excessive Chargeback handling fees or fines imposed by the
applicable Card Organization due to your excessive Chargeback
volume and any other fees or fines imposed by the applicable
Card Organization for your acts or omissions or related to your
submission of transactions for processing to us. If your total
Visa and MasterCard Chargeback items in any line of
business exceed 0.5% of your total Visa and MasterCard
transactions in such line of business, you will pay us, for all
Visa and MasterCard Chargebacks in excess of such 0.5%
threshold during such month in your applicable line(s) of
business, the excessive Chargeback fee shown on the Fee
Schedule, in addition to the regular Chargeback fees due to us
and any applicable Chargeback handling fees or fmes
imposed by the applicable Card Organization. You agree to
reimburse us for any fees, fines, charges. and/or penalties assessed
against you or us arising from your obligations under this
Agreement. At our option, we may deduct any Chargebacks,
adjustments, fees, charges, obligations and other amounts you
owe us pursuant to any provisions of this Agreement from any
settlements due to you, or we may debit your Settlement
Account for any such amounts you owe us, or we may invoice
you, in which case you must pay us for the invoiced amounts
within thirty (30) days of the date of our invoice or such shorter
time as may be specified. Except for amounts we elect to
collect by invoice, if there are insufficient funds available to be
withheld or debited to pay amounts you owe, you must
immediately reimburse us upon demand. You authorize us to
debit your Settlement Account, or any other account we are
otherwise authorized to debit, for any amounts due pursuant to
this Agreement, or due us or any of our affiliates for any related
services.
If you believe that any adjustments should be made to your
Settlement Account based on debits or credits we have made to
your Settlement Account, including missing credits, or if you
have any other questions or concerns regarding services or
regarding any report or statement provided by us, you must
notify us in writing within forty-five (45) days after the debit or
credit in question was made or is missing, such services are
performed, or such report or statement is provided. If you fail
to notify us within such time period, we will not be responsible
for investigating or effecting any required adjustments. If you
notify us after such time period, we may, in our discretion,
assist you in investigating whether any adjustments are
appropriate and whether any amounts are due to or from other
parties, but we will not have any liability to effect any such
adjustments. Any voluntary efforts by us to assist you in
investigating such matters will not create any obligation to
continue such investigation or assist with any investigation in
response to any future notices of possible adjustments that are
not timely submitted.
Pursuant to Section 24, we may amend the fees and charges for
services and supplies provided under this Agreement. You
agree to pay any taxes imposed on the services furnished to you
on the transactions under and subject to this Agreement and
such taxes will be added to the charges owed to us and will be
deducted from the settlement monies due to you in accordance
with the Agreement terms. Any taxes so imposed will be
exclusive of the taxes based on our net income. You will pay us
any extra or special charges imposed by third parties plus our
reasonable handling charge for any supplies that we provide,
and, if applicable, an overnight shipping charge. You will also
pay us any extra or special charges imposed by third parties,
plus our handling charge, if any transactions processed or
initiated hereunder are charged back, reversed or rejected
(including Chargeback fees and fines and ACH reject fees). We
may charge you interest at our then current rate for any amounts
that are not timely paid by you.
At the time we investigate possible fraud or suspicious account
activity, we will charge you an investigative fee of up to fifty
dollars ($50.00).
12. Chargebacks, Etc. We may charge back to you any transaction
amount (commonly referred to as "Chargeback") (and you will reimburse
us for any related losses we incur) when it appears that the transaction is
subject to charge back by the Card issuer or Cardholder in accordance with
the Rules or applicable law.
13. Retention of Records; Retrieval Requests. You will retain legible
images (on microfilm or otherwise) or legible copies of your Card
transaction drafts or sales records for a period of at least eighteen (18)
months from the date of the transaction or such other period as may be
required by law or the Rules. You will submit to us a legible copy of a
Card transaction draft or sales record if any Card issuer requests such
retrieval.
Your deadline for providing us a legible copy of the requested Card
transaction draft or sales record will be ten (10) days after the date of the
Card issuer's retrieval request, as specified in the notice from us.
14. Confidentiality and Data Security.
a) You will treat this Agreement, all Manualsllnstructions and any
other information provided by us as confidential and will not
disclose to any third parties the terms of this Agreement, the
provisions of the BA Merchant Services Manualsllnstructions,
any information received from Card Organizations. or any other
such information; provided, however, that these restrictions will
not apply to information: (a) rightfully obtained by you on a
non-confidential basis from an entity or person other than us
and our agents and representatives, which entity or person was
not subject to a duty of confidentiality, (b) rightfully and
independently known by you on a non-confidential basis prior
to its disclosure by us or (c) generally available to the public
other than through any disclosure by or fault of you or your
agents or representatives. In accordance with state and federal
law, as well as our applicable policies, we may participate in
sharing relevant information among other financial institutions,
regulatory authorities, law enforcement agencies and other
entities authorized by such law/policies. If you provide and/or
issue EBT Benefits in more than one State pursuant to this
Agreement, the laws of the State in which the Benefits were
issued will apply to information arising out of that transaction.
We may disclose to our affiliates information about you and
your activities so that they may consider you for, and if they
desire; offer to you their products and services. You agree that
we may share information about our experience with you
among Bank and its subsidiaries and affiliates, such as
information about transactions and experiences between us and
you. In addition, we may share with Bank and its affiliates and
subsidiaries information contained in any applications, financial
statements or other documents provided by you in connection
with these or other transactions, and information we may obtain
about you from outside sources. If you are an individual, you
may instruct us not to share this information with Bank and its
subsidiaries and affiliates by sending a written request to: Bank
of America, A TIN: Data Integrity, P.O. Box 27025, Richmond,
VA 23261-7025. Please include your name, address, phone
number, account number(s) with us and Social Security number.
BAMS Merchant Services Agreement (Commercial) (10-28-05)
If you make this election, certain products and services may not
be made available to you.
All BA Merchant Services Systems are and will remain the
exclusive property of BA Merchant Services or licensers of
such BA Merchant Services Systems, as applicable (except as
may expressly provided to the contrary in this Agreement). BA
Merchant Services System(s) will be defined for the purposes of
this Agreement as software and related documentation; software
technical formats and specifications; hardware and related
documentation, formats and specifications; technical and
business information relating to inventions and present and
future products and product lines; intellectual property; know-
how; and any other information that is identified by us as a BA
Merchant Services System. You acknowledge that BA
Merchant Services System(s) and the electronic funds transfer
systems operated by each Card Organization or its provider and
all technical and operational data, specifications, marketing
materials and manuals, including the Rules and any other
information regarding such systems, are proprietary and unique
and subject to the confidentiality provisions of this Agreement.
You will have no ownership interest or other rights in any BA
Merchant Services System. Upon the expiration or termination
of this Agreement you will return all copies of all manuals or
other items relating to the BA Merchant Services System(s)
which are in your possession and certify to us in writing that
you have retained no material relating to the BA Merchant
Services System(s).
b) Unless you obtain consents from the applicable Card
Organizations, card issuers and Cardholders, Recipients and/or
States you must not use, disclose, sell or disseminate any
Cardholder information obtained in connection with a Card
transaction (including the names, addresses and Card account
numbers of Cardholders) for any purpose other than
authorizing, completing and settling Card transactions and
resolving any Chargebacks, retrieval requests or similar issues
involving Card transactions, except pursuant to a court or
governmental agency request or order. You will promptly
advise the State or its designated agent of all requests made to
you for information described above relating to EBT Card
transactions. You must use proper controls for secure storage
of, and limit access to, and must render unreadable prior to
discarding, all records containing Cardholder account numbers,
Card imprints and Cardholder signatures. You must not retain or
store magnetic stripe data after a transaction has been
authorized. If you store any electronically captured Cardholder
signature you may reproduce such signature only upon our
request. You must notify us of the identity of any and all third
parties engaged by you ("Merchant Provider(s)") who will have
access to Cardholder data and you may allow Merchant
Providers access to that data only for purposes authorized under
the Rules. You and Merchant Providers must have proper
security measures in place for the protection of Cardholder data,
and you must comply with and assure that Merchant Providers
comply with the Card Associations' Payment Card Industry
("PCI") Data Security Standard, which may also be referred to
as the Visa Cardholder Information Security Program ("CISP")
and the MasterCard Site Data Protection Program ("SDP"). You
must have written agreements with Merchant Providers
requiring that compliance. Any fees, fines or penalties from
non-compliance will be passed through to you. During any term
of this Agreement, you will immediately notify us of any
suspected or confirmed loss or theft of any transaction
information, including any loss or theft from Merchant
Provider. As required under the Rules, you are responsible for
demonstrating your and Merchant Providers' compliance with
the CISP, SDP and PCI programs, and providing reasonable
access to your locations and ensuring Merchant Providers
provide reasonable access to their locations to verify your and
their ability to prevent future security violations. You
indemnify us against any and all costs, expenses, damages
and/or losses resulting from such breach of security, or loss or
theft of transaction information.
15. Advertising. You must display Visa, MasterCard and any other
applicable Card Issuer, Debit and EBT Network decals and program marks
on promotional materials we furnish, and if applicable the Electron
symbol, in equal prominence near the point-of-sale devices and as
otherwise required by the Rules. You acknowledge that you will not acquire
any right, title or interest in or to any Visa, MasterCard, Debit or EBT
Network or other applicable Card Issuer marks by virtue of this Agreement.
Further, you must not indicate that Visa, MasterCard, or any other Card
Organization or state endorse your goods or services and must not
continue using such materials after termination of this Agreement. Any
use of a color reproduction, facsimile, replica or picture of a Card
Organization Card for advertising purposes other than media advertising is
prohibited unless the reproduction, facsimile, replica or picture is
proportionately larger or smaller in length and width by at least 10% of the
standard dimensions for Card Organization Cards. You will promptly
cease all use of a program's marks upon termination of your participation
in the applicable Card Organization or upon notification from us or any
state or Card Organization to cease use of said marks. No right, title or
interest in the service marks have been transferred or is being transferred
to this Agreement, except the non-exclusive right to use said marks as
provided in this Agreement.
16. Assignment. Subject to the following provisions, this Agreement is
binding upon successors and assigns and inures to the benefit of the parties
and their respective permitted successors and assigns. You may not assign
or transfer this Agreement, by operation of law or otherwise, without our
prior written consent. For purposes of this Agreement, any transfer of
voting control of you or your parent will be considered an assignment or
transfer hereof. No assignee for the benefit of creditors, custodian,
receiver, trustee in Bankruptcy, debtor in possession, sheriff or any other
officer of a court, or other person charged with taking custody of your
assets or business, will have any right to continue, assume or assign this
Agreement. We may assign or transfer this Agreement and our rights and
obligations under this Agreement and we may delegate our duties under
this Agreement, in whole or in part, to any third party, without obtaining
your consent.
17. Terms; Default; Reserve/Security Account.
a) Either party may terminate this Agreement on thirty (30) days'
written notice, with or without cause, and as otherwise provided in
this Agreement, except to the extent you agree in writing with us to a
longer written-notice period from you to us. If not terminated, this
Agreement will continue without need for renewal. This Agreement
is binding upon the earlier of (i) its execution by all parties as
evidenced by signatures on the Application or (ii) the settlement by
us of (A) any Card transaction submitted by you to us pursuant to this
Agreement if you are a new customer that does not already have an
agreement with us for Card transaction services or (B) any Card
transaction submitted by you thirty (30) or more days after your
receipt of this Agreement if you are one of our existing customers
whose current agreement with us for Card transaction services is
being replaced by this Agreement.
b) We may terminate this Agreement upon thirty (30) days'
written notice to you, with or without cause. In addition, if any of the
following events (each a "Default") occurs, we may terminate this
Agreement immediately without notice and exercise all of our other
rights and remedies under this Agreement and applicable law: (i) a
material adverse change in your business, financial condition,
business procedures, products or services, a sale of all or a substantial
portion of your assets, or a change in control of your business
(directly or indirectly); (ii) any information provided on the
Application was false or misleading, (iii) irregular Card sales,
excessive Chargebacks, illegal activity or any other circumstances
which, in our discretion, may increase our potential exposure for your
Chargebacks or otherwise present a financial or security risk to us; or
(iv) a default by you in any material respect in the performance or
observance of any term, covenant. condition or agreement in this
Agreement, or in any other agreement with us or any of our affiliates,
including the non-payment of any fees due to us; (v) any non-
compliance by you with the terms of the Agreement or the Rules, or
any reasonable belief by us, as applicable, that you ntay fail to
comply with the terms of the Agreement, which failure would
constitute a substantial risk to us, (vi) if you are disqualified or
withdrawn from the Benefit issuance program(s) indicated on the Fee
Schedule, (vii) there is an overdraft for five (5) consecutive days in
your Settlement Account, (viii) any guaranty is revoked, (ix) your
business name and/or the names of your principals is listed on the
MATCH (Membership Alert To Control High Risk Merchants)
System and/or other security/credit alert systems, or (x) you file a
voluntary petition or complaint seeking relief under any federal or
state Bankruptcy or other debt relief statute, an involuntary petition
under any federal or state bankruptcy or other debt relief statute is
filed against you, you generally become unable to pay your debts or
trade obligations as they become due, or you make a general
assignment for the benefit of creditors. If an order of relief is entered
against you in a case commenced under Title 11 of the United States
Code and you are given the right to assume or reject this Agreement,
you must do so within sixty (60) days after the entry of such order of
BAMS Merchant Services Agreement (Commercial) (10-28-05)
relief; if you fail to do so, we may terminate this Agreement
immediately upon written notice to you. If, during any six (6) month
period (the "Measurement Period") the average size or the total
amount of your Card transactions is more than 20% lower than the
amount stated in the Application for (i) your average Card transaction
size or (ii) one-half of your annual Card volume, then we may
terminate this Agreement by giving you at least thirty (30) days
advance notice; any such notice must be sent to you within thirty (30)
days after the end of the applicable Measurement Period.
We may, upon receipt of verbal or written instructions from any Card
Organization to which we are providing access hereunder,
immediately cease to provide to you, including your clients, access to
such Card Organization. We will use reasonable efforts to promptly
notify you of such interruption in Card Organization access.
c) The provisions of this Agreement that govern processing of
Card sales and credits and settlement will continue to apply even
after this Agreement is terminated, until all Card transactions are
settled or resolved, and the provisions of Sections 10, 11, 12, 13, 14,
16, 17, 18, 20, 21, 22, and 23 will survive any termination. Upon
termination, all amounts payable to us will be due and payable in full
without demand or other notice of any kind (all of which you agree
to expressly waive) and you must immediately send us all the data
relating to Card sales and credits made up to the date of termination.
We will not be liable to you for any direct or consequential damages
you may suffer as a result of the termination of this Agreement.
d) If this Agreement is terminated at any time other than upon
expiration in accordance with Section 17 (a), we will be entitled to
recover, and you will pay on demand, any and all losses (including
consequential damages, loss of profits, costs, expenses and liabilities)
incurred by us in connection with termination. You will be
responsible for all collection and legal fees and expenses we incur in
the collection of any delinquent amounts you may owe us. You also
acknowledge that we will incur costs and expenses to provide certain
routine services following termination of the Agreement, similar to
those provided during the term of this Agreement, including
processing Chargebacks relating to transactions that initially occurred
prior to termination, providing monthly statements to you to report
any such Chargebacks or other adjustments and responding to
telephone calls and other inquiries. You will remain liable for
Chargebacks and other adjustments as provided in Section 17(e) and
for other costs, damages, losses, expenses and liabilities incurred by
us in connection with an early termination of this Agreement. You
authorize us to debit your Settlement Account for, or deduct from any
settlement funds otherwise owed to you any and all losses (including
costs, expenses and liabilities) incurred by us in connection with
termination. If your settlement funds or the balance in your
Settlement Account is insufficient to cover all such losses, you agree
to pay us such amounts immediately on receipt of invoice.
e) After any termination of this Agreement, you will continue to
bear total responsibility for any and all Chargebacks, credits and
adjustments and all other amounts then due, or which later become
due, to us under this Agreement or to either of us or any of our
affiliates for any related equipment or related services. In connection
with termination, we may require that a reserve/security account be
established and maintained by you or on your behalf with us (or
otherwise for our benefit) in an amount equal to:
(i) our reasonable estimate of your dollar
volume of incoming Chargebacks, for a nine (9) month period
and your credits (for returns or otherwise) for a two (2) month
period (which may be based on actual volume during the
preceding 270 days for Chargebacks and 60 days for credits or 9
times your average monthly dollar volume of incoming
Chargebacks and 2 times your average monthly dollar volume
of credits, as determined during a recent 12-month period or any
shorter term of this Agreement) or such higher amount that we
deem necessary and sufficient to cover our potential liability for
Chargebacks and credits; plus
(ii) our reasonable estimate of all fees,
charges, obligations and other amounts that may be owed to us
or we reasonably expect to be owed to us under or in connection
with this Agreement at or following termination (including all
adjustments needed to reconcile any discrepancies, to reflect
increased interchange fees because of failure to comply with
intended rates or interchange fees, or otherwise), any and all
fines assessed against you or us or which may be assessed
against you or us, any and all fines assessed against you or us in
relation to Compliance Cases (as defined in the Rules) directly
or indirectly attributable to you, any other fees and charges not
collected by us prior to termination, and damages and other
amounts due under Section 17(e) upon premature termination;
plus
(iii) our reasonable estimate of all uncollected
fees (including, but not limited to, debit adjustment fees and
Authorization fees), charges, obligations and other amounts
(including damages and other amounts due upon premature
termination) payable to either of us or to any of our affiliates for
related equipment or related services.
1) Without exercising (and without waiving) our right to terminate
this Agreement immediately without notice and exercise our rights and
remedies, if any of the events in Section 17(b) occur, we may, in our
sole discretion, (i) require you to establish a reserve/security account
with us during the term of this Agreement equal to the same amount as
set forth in Section 17(e) and/or (ii) change processing or payment
terms to suspend for any reasonable period of time required credits or
other payments of any and all amounts now due or to become due to
you pursuant to this Agreement. Should processing or payment terms
be changed, we will notify you within a reasonable time after effecting
a suspension of credits or other payments, stating our reason for such
suspension. If you have accepted and processed fraudulent transactions,
we will not be obligated to pay you for such transactions and will have
full recourse against you for all such aforementioned transactions. We
will also have the right to assess fees and recover all costs associated
with the investigation of any suspected fraudulent activity. We will
have no liability to you for any losses, either direct or indirect, which
you may suffer as a result of any such suspension of funds disbursement
or failure to pay for transactions.
g) In connection with the termination of this Agreement or any
other event entitling us to require a reserve/security account from you
(and continuing thereafter until the reserve is released pursuant to
Section 17(h)), we may use any funds otherwise due to you, or we may
debit your Settlement Account for funds, to establish and maintain on
your behalf (or restore/supplement) the balance of your funds in a
reserve/security account containing your funds equal to the amount set
forth in Section 17(e). Your reserve/security funds required by Section
17 may be held in a commingled reserve/security account for the
reserve/security funds of our customers, without involvement by an
independent reserve agent.
h) The requirement to maintain a reserve/security account will not
limit our right to debit or withhold ongoing settlement payments as
recoupment for Chargebacks, potential Chargebacks, adjustments, fees,
charges, obligations and other amounts due hereunder. Your funds in
the reserve/security account may be used to settle Chargebacks,
adjustments, fees, charges, obligations and other amounts described in
Section 17(e), whether arising before, on or after termination and
whether such obligations or other amounts are liquidated, fixed,
contingent, matured or unmatured, whenever there are not sufficient
settlement funds due to you to cover such Chargebacks, adjustments,
fees or other charges or obligations. We will refund any of your unused
funds remaining in such reserve/security account to you generally no
later than 280 days after termination of this Agreement, and if we
receive a written request from you within thirty (30) days thereafter, we
will provide you with an accounting of any of your funds debited or
credited from or to such account. If your funds in the reserve/security
account are not sufficient to cover the Chargebacks, adjustments, fees,
charges, obligations and other amounts due from you, or if your funds
in such account have been released, you agree to promptly pay us such
sums upon request.
i) You acknowledge that we may monitor your daily credit card
transaction activity. You agree that we may upon reasonable grounds
divert into a reserve/security account the disbursement of your funds
and/or temporarily suspend processing under this Agreement.
Reasonable grounds will include, but not be limited to, the following:
suspicious or unusual transaction activity; material variance in the
nature of your business, type of product and/or service sold, average
ticket size, monthly volume or swiped/keyed percentages, from such
disclosures made by you in this Agreement; you do not authorize
transactions; we receive excessive retrieval requests against your prior
activity; excessive Chargebacks are debited against your prior activity;
you do not deliver product or render full service on or before the
transaction date; or you key a foreign card transaction. If your funds are
diverted by us or we have temporarily suspended processing under this
Agreement, such diversion or suspension will be for any reasonable
period of time required by us to fully investigate your account activity
and resolve, to our sole satisfaction, your subject transaction or activity.
We will maintain any funds diverted in a non-interest bearing account,
which may be a commingled account. We will have no liability for any
BAMS Merchant Services Agreement (Commercial) (10-28-05)
losses, either direct or indirect, which you may attribute to any
diversion of funds, or suspension of processing.
j) In the event you fail to establish or maintain any required
reserve/security account, we may immediately terminate this Agreement
and may exercise any other rights we have under this Agreement.
k) If this Agreement is terminated for any of the reasons specified
as cause by the Rules, including, but not limited to, fraud, counterfeit
paper, prohibited Card transactions, excessive Chargebacks, highly
suspect activity or non-payment of fees, you acknowledge that we may
be required or may elect to report your business name and the names of
your principals together with other identifying information to the
MATCH (Membership Alert To Control High Risk Merchants) System
and other security/credit alert systems. You expressly agree and
consent to such reporting in the event this Agreement is so terminated
and, furthermore, will hold us harmless against any claims that arise as
a result of such reporting.
18. Security Interest and Setoff Rights. To secure your obligations to
us and our affiliates under this Agreement and any other related
agreements described below, you irrevocably grant to us a lien against and
security interest in any funds pertaining to the transactions contemplated
by this Agreement now in our possession or that may come into our
possession, whether due or to become due to you, together with the
proceeds thereof, the Settlement Account, the reserve/security account and
any other deposit account held by you with Bank or any other financial
institution, whether now existing or established in the future, and in the
proceeds of all those accounts, and any of your property held by us. Any
such funds may be commingled with other funds, and need not be
maintained in a separate account. In addition to any rights granted under
applicable law and not by way of limitation of such rights, you authorize
us at any time and from time to time, without notice or demand (any such
notice and demand being expressly waived) to set off. to appropriate and
to apply any and all such funds against and on account of your obligations
(including damages and other amounts due under Section 17(d) upon
premature termination) under or in connection with this Agreement and
any other agreement with us or any of our affiliates for any related
equipment or related services, whether such obligations are liquidated,
unliquidated, fixed, contingent, matured or unmatured. You agree to
execute and deliver to us such instruments and documents we may
reasonably request to perfect and confirm the lien, security interest and
right of setoff set forth in this Agreement. In addition, by indicating your
acceptance of the terms of this Agreement pursuant to Section 28 herein,
you also agree to any master control agreement as defined in Article 9 of
the Uniform Commercial Code among you, us and any other bank, under
which agreement we, you and any other bank agree to the disposition of
funds in the Settlement Account, the reserve/security account or any other
deposit account without further consent by you, provided that the control
agreement will not obligate you to pay additional fees to the Bank or to the
other bank.
19. Financial and Other Information. You will provide us upon
request financial statements and other information about your business and
principal owner(s) and officer(s) and your compliance with the terms of
this Agreement. You and any Guarantor(s) authorize us to obtain from
third parties financial and credit information about you, your official(s)
and any Guarantor(s), respectively, in connection with our determination
whether to accept this Agreement and our continuing evaluation of the
financial and credit status of you, your official(s) and any Guarantor(s).
Upon request, you will provide to us or our representatives reasonable
access to your facilities and records for the purpose of performing any
inspection and/or copying of your books and/or records we deem
appropriate.
You will provide us with written notice of your intent to liquidate,
substantially change the basic nature of your business, transfer or sell any
substantial part (25 % of more) of your total assets, or change the control or
ownership of your business or of any other entity that controls your
business, thirty (30) days prior to such liquidation, change, transfer or sale
taking place. You will also notify us of any judgment, writ, warrant of
attachment, execution or levy against any substantial part (valued at 25 %
or more) of your total assets not later than three (3) days after you obtain
knowledge of any such judgment, writ, warrant of attachment, execution
or levy.
20. Indemnification. All disputes between you and the Cardholder will
be settled between you and the Cardholder. You must ensure that the
Cardholder understands that you are responsible for the transaction, for
any related customer service, dispute resolution. and performance of terms
and conditions of transaction. You agree to indemnify and hold us and
any third party providing services hereunder (Providers and Sponsors) and
each Card Organization and said Card Organization's participants harmless
from and against all losses, liabilities, damages and expenses (including
attorneys' and collection fees and expenses) resulting from any breach of
any covenant or agreement or any misrepresentation by you under this
Agreement, or arising out of your or your employees' negligence, fraud or
willful misconduct in connection with your Card transactions, use of our
services, or otherwise arising from your provision of goods and services to
Cardholders. In addition, you agree to indemnify and hold us and any
Providers, Sponsors, States, and each Card Organization and said Card
Organization's participants harmless from and against all losses, liabilities,
damages and expenses (including attorneys' and collection fees and
expenses) resulting from you, or your employees, agents, or
representatives (I) failure to abide by a requirement of this Agreement, (2)
violation of any applicable law or regulation or order, (3) misuse of any
protected mark of a Card Organization, (4) effecting transactions with the
use of a lost stolen, counterfeit, or misused Card, or (5) conduct of your
business. Further, you agree to indemnify and hold us harmless from and
against all losses, liabilities, damages and expenses (including attorneys'
and collection fees and expenses) we may incur pursuant to any Rule
resulting from your action or inaction, including but not limited to, all
losses and expenses we may incur as a result of any action you institute
against any Card Organization or Card issuer following a Chargeback.
Further, you agree to indemnify and hold us harmless from and against all
losses, liabilities, damages and expenses (including attorneys' and
collection fees and expenses) resulting from our compliance with the
verbal or written instructions of any Card Organization. You agree to hold
us harmless for any activity arising out of the negligence or willful
misconduct, acts and/or omissions of any third party engaged by you
including the employees and/or agents of said third party.
If providing any of the services to you hereunder violates, or in our
reasonable opinion is likely to violate, any applicable laws or
governmental regulations, or should we receive instructions from a
governmental agency having authority over your business instructing us to
cease providing any or all of said services, or should you cease operations,
then we may, upon oral notice to you, immediately cease providing the
affected services to you.
We agree to indemnify and hold you harmless from and against all losses,
liabilities, damages and expenses (including reasonable attorneys' fees and
expenses) resulting from any breach of any covenant or agreement or any
misrepresentation by us under this Agreement or arising out of our or our
employees' gross negligence or willful misconduct in connection with this
Agreement.
IN NO EVENT WILL WE BE RESPONSIBLE FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH YOU
MAY INCUR AS A RESULT OF ENTERING INTO OR RELYING
UPON THIS AGREEMENT OR TERMINATION OF THIS
AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OCCURRING.
21. Performance of Duties. Each party will be excused from
performance under this Agreement, except for any payment obligations,
for any period and to the extent that it is prevented from performing, in
whole or in part, as a result of delays caused by the other party or any act
of God, war, civil disturbance, court order, labor dispute, third party
nonperformance or other cause beyond its reasonable control, including
failures, fluctuations, or nonavailability of electrical power, heat light air
conditioning, or telecommunications equipment. Such nonperformance
will not be a default or a ground for termination as long as reasonable
means are taken to expeditiously remedy the problem causing such
nonperformance. Notwithstanding the foregoing, during any period when
our performance is hindered or precluded by reason of any of the aforesaid
causes, your obligations to make payments hereunder will be reduced on
an equitable basis. If you elect not to implement the redundant
configuration recommended by us for connectivity to us, we will have no
liability if the connectivity fails and you agree to indemnify and hold us
harmless from any and all resulting losses, liabilities, damages and
expenses resulting therefrom. None of the following will be liable or
deemed to be in default for any delay or failure to perform under this
Agreement or for any interruption in the services resulting, directly or
indirectly, from any cause beyond it's reasonable control: any State,
NACHA, EST Network, a State's designated agent, or us.
22. Governing Law; Miscellaneous.
a) This Agreement is governed by and will be construed in
accordance with the laws of the State of North Carolina without
regard to conflicts of law provisions, regardless of where you may
conduct business, except that Section 23 will be governed by the
Federal Arbitration Act. If any part of this Agreement is not
enforceable, the remaining provisions will remain valid and
enforceable. In performing its obligations under this Agreement, each
party agrees to comply with all laws and regulations applicable to it.
A waiver by us of any of the covenants, conditions, or agreements to
BAMS Merchant Services Agreement (Commercial) (10-28-05)
be performed by you or any breach thereof will not be construed to
be a waiver of any succeeding breach or of any other covenant,
condition or agreement contained in this Agreement.
b) WE MAKE NO WARRANTIES TO YOU, EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANT ABILITY OR ATNESS FOR A
PARTICULAR PURPOSE. Our sole liability to you or any third
party for any claims, notwithstanding the form of such claims (e.g.
contract, negligence or otherwise), arising out of the delay of, or
interruption in the services provided or to be provided by us
hereunder, will be to use its reasonable efforts to commence or
resume the services as promptly as reasonably practicable. Should
we be required to defend a claim brought by you and we prevail, we
will be entitled to reimbursement from you, and you agree to pay us
all costs, attorneys' fees and any other expenses incurred in
connection with those proceedings. No action, regardless of form,
arising out of or related to this Agreement may be brought by you
more than one (I) year after the cause of action has accrued.
c) You agree to comply with all applicable federal, state, and
international laws and governmental rules and regulations relating to
the operation of your business.
d) We, in providing services, are acting as an independent
contractor and do not undertake by this Agreement or otherwise to
perform any of your regulatory or contractual obligations. We have
the sole right and obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed, all work to be performed
by us under this Agreement.
23. Dispute Resolution and Arbitration. If the parties disagree as to
any matter governed by this Agreement, the parties will promptly consult
with one another in an effort to resolve the disagreement. If such effort is
unsuccessful, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, will be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
Arbitration shall take place on an individual basis without resort to any
form of class action. The arbitrator(s) will have the right to render
equitable, as well as other. awards and relief. The parties agree that the
underlying agreement between the parties involves interstate commerce,
and that, notwithstanding any choice of law provision in Section 22 of this
Agreement, any arbitration hereunder will be governed by the Federal
Arbitration Act.
24. Amendments. We may change this Agreement, the
Manuals/Instructions, or other operating procedures by giving you at least
fifteen (15) days advance notice. However, in the event of changes in the
Rules or due to security or risk control reasons, certain changes may
become effective on shorter notice. In addition, we may from time to time
notify you in writing or through other means of requirements that must be
satisfied to qualify for various incentive programs. Any Card sales made
by you after the effective date of such change will constitute consent to the
new terms.
Notwithstanding the foregoing, we will use reasonable efforts to notify
you at least thirty (30) days in advance of any fee changes. Following
such notification by us of any amendment of the fees referenced herein
and for thirty (30) days thereafter, you may terminate this Agreement upon
written notice to us. However, any Card sales made by you on or after
thirty-one (3 I) days following such notice to you will constitute consent to
the new terms.
25. Notices. All notices hereunder (unless involving normal operational
matters, including requirements for various incentive programs) must be in
writing and will be deemed given (a) if sent by mail, on the third business
day after being mailed first-class mail to the specified address; (b) if sent
by courier, when delivered; or (c) if sent by facsimile, when transmission
is confirmed; in any case, if to you at the address appearing in the
Application, and if to us to BA Merchant Services, 1231 Durrett Lane,
Louisville, Kentucky, 40213, Attention: Customer Services, KY6-200-01-
14, Fax: (502) 315-2090, or to such other address as we or you may have
specified in a written notice to the other. We may include a notice with or
on your statement. As an alternative, we may make any notices available
by electronic means such as on our Internet web site and notify you how it
may be accessed, including notification by electronic mail. If we make a
notice available by electronic means, we also will provide a toll-free
telephone number where you may order a paper copy with postage paid by
us. You agree to read all notices affecting this Agreement that we send or
make available to you.
26. Certain Rights of Card Organizations. The parties acknowledge
that the Rules give the Card Organizations, including all applicable Debit
and EBT Networks, the States, the State EBT Service Provider, and certain
governmental entities participating in the EBT Project, certain rights to
investigate you and to require termination or modification of this
Agreement with respect to transactions involving said Card Organization's
systems.
27. Systems Enhancements. If after the effective date of this
Agreement, you request us to perform or provide any System
Enhancements and we subsequently agree to provide you such System
Enhancements, we will use reasonable efforts to provide such System
Enhancements if you pay us the additional fees charged by us for such
System Enhancements. Any subsequent changes that we must make in
your Systems Enhancements to accommodate changes in applicable law or
the Rules will be at your expense.
28. Signature; Electronic Contracting; General Provisions. Your
signature, a facsimile copy of your signature, a digitally stored image of
your signature, your email approval, your electronic approval, or a unique
digital signature on or captured within (as applicable) the Application
attached to this Agreement, the Fee Schedule attached to this Agreement
and, if applicable, an Equipment Agreement serves as the signature for this
Agreement. The parties to this Agreement expressly acknowledge and
agree that the parties to this Agreement may choose to contract via
electronic means and that such contracts will have the same force and
effect as if conducted via conventional form. Notwithstanding anything to
the contrary elsewhere in this Agreement or in other agreements you may
have with us, it is expressly acknowledged and understood that all such
electronic contracting is and will be conducted pursuant to the provisions
of North Carolina Gen. Stat. ~66-31l et seq. The parties to this Agreement
also expressly acknowledge and agree that any duplicate original (whether
digital, photographic, or otherwise) or electronic record of this Agreement
will have the same force and effect as the original form of this Agreement.
You indicate. by signing the Application, submitting your email approval,
submitting your electronic approval, or by submitting sales data, your
acceptance of and agreement to the terms and conditions of this
Agreement. This Agreement will become effective only if and when we
note our acceptance of it or process sales data that you submit. In addition,
if, after the effective date of this Agreement, you elect to accept other card
types, by submitting sales data for said card type (after approval by us and
the card issuer, if applicable) you indicate your acceptance to the pricing
and conditions associated with accepting said card types.
29. Telephone and Mail Orders; Electronic Commerce; Recurring
Sales or Other Preauthorized Orders or Sales. You may not accept
MOrrO/IO transactions unless you have specifically informed us of the
percent of MOrrO/IO transactions to be conducted and we have
specifically authorized you to accept such transactions. Acceptance of
such transactions without authorization from us will constitute a breach of
this Agreement. If you accept and we authorize you to accept telephone or
mail orders or electronic commerce transactions or recurring sales or other
preauthorized orders or sales, you must comply with all requirements of the
Rules regarding mail order, telephone order, electronic commerce, recurring
sales and other preauthorized orders or sales, including but not limited to the
rules contained in the Manuals/Instructions.
You acknowledge and agree that you will only submit Electronic
Commerce Card transactions in U.S. Dollars that arise from a
Cardholder's purchase over the Internet. You will be responsible for
obtaining any operational consents required of the Card Issuer to comply
with procedures or practices contemplated by both you and us under this
Agreement. If software is to be purchased by you, you will be responsible
for sublicensing fees and all other fees for software and the software
program utilized by you that enables you to connect to and maintain
communication between you, the Internet and us. You will, at all times,
maintain in effect a Sublicense Agreement for any such software. You
agree to use any such software and the software program properly and for
the purposes for which it was intended.
EQUIPMENT AGREEMENT
This Equipment Agreement is being entered into by and between BA
Merchant Services, LLC. ("BA Merchant Services") and the Merchant
identified in the attached Application ("You").
This Agreement governs the sale of certain terminals, printers, and other
equipment identified in the Application (the "Equipment"). All references
to the Application in this Agreement mean both the Application attached
to this Agreement when it is first executed by you and us and any
supplemental versions of the Application mutually agreed upon when you
open additional locations or when you otherwise request additional or
different equipment. THE EQUIPMENT IS NOT BEING SOLD TO
YOU FOR HOME OR PERSONAL USE. In this Agreement,
Equipment refers to any electronic terminal, electronic printer or other
electronic peripheral equipment identified on the Application.
In consideration of the mutual covenants and agreements set forth herein
and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, you and we agree as follows:
The text of the attached Application, and Card Processing Agreement,
including any related Schedules, Amendments, Addenda, or Exhibits
thereto attached. is hereby incorporated herein as if fully set forth at this
point, but with the following modifications thereto:
1. Sections 2-7,9-13, 15, 18, 19,26 and 29 thereof are deleted in their
entirety.
2. For the purposes of this Equipment Agreement, any and all
references to "Bank," "we," "our" and "us," unless the context clearly
requires otherwise, refer only to BA Merchant Services.
3. Section 17 of the Card Processing Agreement is hereby deleted and
replaced with the following: "Effective Date and Term of
AgreementlDefault; Remedies.
a. This Agreement will become effective on the earlier of the date
this Agreement is fully executed by you and us or the first date you
are deemed to have accepted any piece of Equipment covered by this
Agreement. This Agreement will remain in effect until all of your
obligations and all of our obligations under this Agreement have been
satisfied. We will deliver the Equipment to the site or sites designated
in the Application. You will be deemed to have accepted each piece
of Equipment upon delivery. The provisions of this Agreement will
survive the termination or expiration of the Card Processing
Agreement, unless this Agreement terminates or expires before the
Card Processing Agreement.
b. If any debit of your Settlement Account initiated by us for charges
due hereunder is rejected when due, or if you otherwise fail to pay us
any amounts due hereunder when due, or if you default in any
material respect in the performance or observance of any obligation
BAMS Merchant Services Agreement (Commercial) (10-28-05)
or provision in this Agreement, or if any other Default occurs under
the Card Processing Agreement, any such event will be a Default
hereunder. In the event that you default in the payment or
performance of any of your obligations under this Agreement, you
will immediately (1) forfeit all monies paid hereunder and (2)
surrender peacefully and deliver up promptly all Equipment to us.
Upon the occurrence of any Default and in addition to the foregoing,
we may at our option, effective immediately without notice, either:
(i) terminate our future obligations under this Agreement and proceed
in any lawful manner against you for collection of all charges that
have accrued and are due and payable. in which case this Agreement
will terminate as soon as your obligations to us are satisfied or (ii)
require the immediate payment of all remaining amounts due under
this Agreement and be entitled to reimbursement for any costs of
repossession and/or any amount necessary to restore the Equipment
to the same condition in which it was delivered to you, ordinary wear
and tear excepted. In either case, you will also be responsible for
court costs and reasonable attorney's fees incurred by or on behalf of
us, as well as applicable shipping, repair and refurbishing costs."
4. The following will be added as Section 30: "Equipment Options
and Applicability of Agreement Terms.
a. Equipment Options. Whereas: Option 1: You desire to purchase
certain Equipment directly from us in consideration of the payment
of a purchase price by you to us; or
Whereas: Option 2: You desire to purchase certain Equipment
through a person or persons other than us who have procured said
Equipment from us, payment for which will be made by you to said
other person or persons.
b. Applicability of Agreement Terms. In the event of Option 1
above, you and we agree that all terms and conditions of this
Agreement will apply.
In the event of Option 2 above, you and we agree that the terms and
conditions set forth in Sections 17(b), 31, 33, 35-37, and 42 of this
Agreement will not apply."
5. The following will be added as Section 31: "Purchased
Equipment; Supplies. We will sell to you, and you will buy from us the
Equipment identified in the Application as being purchased by you (the
"Purchased Equipment"), free and clear of all liens and encumbrances
(subject to Section 36), except that any "Software" (as defined in Section
37 below) will not be sold to you ourright but instead will be provided to
you pursuant to, and subject to the conditions of Section 37 hereof. We
will also sell to you and you will buy from us the supplies identified in the
Application as requested by you from time to time."
6. The following will be added as Section 32: "Site Preparation.
You will prepare the installation site or sites for the Equipment, including
but not limited to the power supply circuits and phone lines, in
confonnance with the manufacturer's and our specifications and will make
the site or sites available to us by the confirmed shipping date."
7. The following will be added as Section 33: "Payment of Amounts
Due for Equipment.
a. The purchase price specified in the Application for purchased
equipment and supplies, if applicable, will be due and payable
upon execution of this Agreement. You will pay such purchase
price to us prior to shipping of the equipment and supplies. All such
payments will be made: (1) in a lump sum by check or by debit to the
Settlement Account through ACH or (2) in installments by debit to
the Settlement Account through ACH (defined below) in each case,
as specified on the Application. In the event you do not specify
payment timing or method, payment will be made in a lump sum via
ACH debit to the Settlement Account. We will also provide you the
supplies identified in the Application, as requested by you from time
to time. You will pay the purchase price for such supplies, including
all applicable taxes prior to delivery of the supplies or at our option
such amounts will be collected by invoice or by debits or deductions
pursuant to this Section. You hereby authorize us to collect all
amounts due from you under this Agreement by initiating our debit
entries for such amounts to your account designated pursuant to the
Card Processing Agreement to be debited and credited for amounts
due from and to you under the Card Processing Agreement (the
"Settlement Account") or by deducting (or causing Bank of America,
N A. to deduct) such amounts from settlement amounts due to you
under the Card Processing Agreement. All Authorizations and other
provisions in your Card Processing Agreement regarding the debiting
and crediting of your Settlement Account apply with equal force with
respect to amounts due to or from you under this Agreement. This
authority will remain in full force and effect until we have given
written notice to your bank where your Settlement Account is
maintained that all monies due from you under this Agreement have
been paid in full.
If you will make any payment hereunder by check and such check
will be returned for non-sufficient funds, or if you will make any
payment hereunder by debit to the Settlement Account and funds in
the Settlement Account are inadequate, you agree to reimburse us
immediately for any account shortfall that occurs as a result thereof
together with our then current fee for handling such shortfall. Should
you fail to deposit sufficient funds to cover the shortfall in toto within
forty eight (48) hours of notice of such shortfall, you will then owe to
and be charged by us a late charge of 15% of the amount past due.
Any deposits made to the Settlement Account will be applied first to
late charges, then to processing charges and then to Equipment
charges.
b. In addition, you will pay, or reimburse us for, amounts equal to
any applicable taxes or assessments, however designated, levied or
based on such charges, or on this Agreement or the Equipment and
related supplies or any services, use or activities hereunder.
c. As indicated in the Application, separate charges apply for
Equipment supplies."
8. The following will be added as Section 34: "Use of Equipment.
a. You will cause the Equipment to be operated by competent and
qualified personnel in accordance with any operating instructions
furnished by the manufacturer or us and in connection with the
services provided under your Card Processing Agreement. You will
not use the Equipment, or pennit the Equipment to be used, in any
manner or for any purpose for which the Equipment is not designed
or reasonably suited.
b. You will comply with all governmental laws, rules and
regulations relating to the use of the Equipment. You are also
responsible for obtaining all legally required pennits for the
Equipment.
c. After delivery of the equipment any loss, destruction, theft of or
damage to the Equipment that occurs thereafter will not relieve you
from your obligation to pay the full purchase price payable
hereunder.
d. You will not move the Equipment from the installation location
set forth in the Application for any reason or use whatsoever without
our prior written consent.
e. Notwithstanding anything in this. Agreement to the contrary, you
will be solely responsible for properly maintaining all Equipment and
meeting all technical standards required by this Agreement. You will
at all times insure that all point -of-sale Equipment will display, print
HAMS Merchant Services Agreement (Commercial) (10-28-05)
and report your name, city, state and the transaction date on all
transaction receipts, as penalties may be assessed against you for
transactions that are inaccurately transcribed."
9. The following will be added as Section 35: "Ownership &
Protection of Equipment. During the period of time when any charges,
taxes or fees for or on Equipment will be due us, and until such time as all
charges, taxes and fees due will have been received by us, it is expressly
understood and agreed by you that: (1) you will not directly or indirectly
create or pennit to exist, and will promptly and at your own expense
discharge, any lien, charge or encumbrance on the Equipment; (2) you will
not alter the Equipment in any manner whatsoever; (3) you will maintain
the Equipment at your expense in the same condition in which it was
delivered to you, ordinary wear and tear excepted; and (4) in the event of
any loss, theft, damage or destruction of the Equipment from any cause
whatsoever, you will notify us immediately of such condition and we, in
our sole discretion, will detennine the extent of loss and the cost of repair
and/or replacement, and you will bear the entire risk and promptly pay the
cost of such repair and/or replacement."
10. The following will be added as Section 36: "Security Interest;
Financing Statements. You hereby grant to us a security interest in all
Purchased Equipment and the related Software to secure payment of the
purchase price thereof in accordance with the Unifonn Commercial
Code."
I L The following will be added as Section 37: "Software License.
Anything in this Agreement to the contrary notwithstanding, we retain all
ownership and copyright interest in and to all sOfrware, computer
programs, related documentation, technology, know how and processes
embodied in or provided in connection with the Equipment (collectively,
"Software"), and you will have only a nonexclusive license to use the
Sofrware in the operation of the Equipment. You will not reverse
engineer, disassemble or decompile the Sofrware. You will not give any
third party access to the Software without our prior written consent. Your
obligations under this Section will survive the termination of this
Agreement."
12. The following will be added as Section 38: "Limited Warranty
for Equipment; Maintenance. Equipment provided to you by us
hereunder will be free from defects in material or workmanship at the
initial date of shipment to you and, if covered by any applicable warranty,
will be repaired or replaced by us free of charge within thirty (30) days
therefrom. We will take appropriate steps, to the extent permitted, to
assign to you any and all warranties provided by the manufacturer of the
Purchased Equipment, but we will not provide any warranty with respect
to the Purchased Equipment.
Equipment provided to you by us hereunder will confonn to applicable
specifications for the period of time specified in, and be covered by the
warranty provided in, the written materials accompanying each component
of Equipment, copies of which materials will be provided to you upon
delivery of the specified Equipment. The exact tenn, conditions and
coverage of each warranty will vary for each component of Equipment in
accordance with such written materials. The cost incurred by you, if any,
to repair or replace Equipment will be detennined by us based upon the
specific provisions of the warranty applicable thereto as set forth in such
written materials, our applicable repair and replacement policy and the
date you request such repair or replacement relative to the initial date of
shipment by us.
The warranty statement in the written materials provided to you with
respect to the Equipment describes the following in explicit detail, but in
general, such warranty will be voided if there is: (1) alteration, installation,
repair or maintenance of the Equipment performed by persons not
authorized by us; (2) connection of any device to Equipment or peripherals
not certified for use with the Equipment; (3) operation of the Equipment
outside the published specifications; (4) negligence by you or any other
person with respect to the Equipment; or (5) alteration of Equipment serial
number( s).
The warranty statement in such written materials also describes the
following in explicit detail, but in general, such warranty does not cover:
(1) misuse, neglect or abuse of the Equipment; (2) labor involved in the
removal/reinstallation of warranted Equipment or pans on site; (3) damage
or malfunction as a result of acts of nature; or (4) operating supplies,
including paper, ribbons, accessories and chargeable batteries.
You expressly understand and agree that, except as set forth above, we
make no warranties whatsoever, express or implied, relative to the
Equipment, including, without limitation, any warranties of
merchantability or fitness for any particular purpose, and you hereby
expressly waive and release us from any and all warranties with respect to
the Equipment, other than those specifically set forth in this Agreement.
You further expressly understand and agree that our sole liability and your
sole remedy, whether in contract, tort or otherwise, with respect to any
Equipment provided to you under this Agreement will be limited to the
repair or replacement of defective or faulty Equipment in accordance with
the terms of this Agreement, and we will not be liable for indirect or
consequential damages, or damages resulting from the loss of use, data or
profits, arising out of or in connection with the use of, or the inability to
use, the Equipment, and you hereby expressly releases us from any and all
liability with respect to the Equipment, other than as expressly set forth
above.
WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT AND THE SOFTWARE, INCLUDING AS TO ITS
CONDITION, ITS CONFORMITY TO ANY REPRESENTATIONS OR
DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT
DEFECTS, AND ITS MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE."
13. The following will be added as Section 39: "Return, Repair &
Replacement of Equipment. We will assist you in obtaining repairs and
replacements of any Equipment, which is malfunctioning and which
cannot be made to work properly via telephone assistance provided to you
by our technical support staff.
The decision to repair or replace Equipment will be at our sole discretion,
and such repair or replacement will be made by a facility designated by us.
We reserve the right to charge for or to refuse repairs or replacements of
Equipment more than thirty (30) days after the initial date of shipment to
you or which is not procured through us.
In the event that we have approved repair or replacement of specific
Equipment, you will be solely responsible for properly packaging and
promptly returning the defective Equipment to our designated facility,
freight and insurance prepaid. In the event replacement Equipment is sent
to you and you in turn fail or refuse to return the defective Equipment
within thirty (30) days thereafter, we will charge the Settlement Account
for the reasonable fair market value of such replacement Equipment, as
determined at our sole discretion. If you will then afterward properly
return said defective Equipment, we, upon verification of receipt, will
credit you any amount so charged, less a handling fee for your failure to
return the defective Equipment in a timely manner.
BAMS Merchant Services Agreement (Commercial) (10-28-05)
You will be liable and will pay for all non-warranty repairs, as well as all
return shipping and handling fees. In the event of a valid warranty claim,
you will be responsible for the cost of returning defective Equipment to
our designated facility as prescribed in this Agreement, plus all repair and
replacement costs, unless such return is made within thirty (30) days of the
initial shipment of such Equipment to you by us, in which case, your will
be responsible only for such return costs."
14. The following will be added as Section 40: "Limitation on
Liability for Equipment. Our liability arising out of or in any way
connected with this Agreement will not exceed the purchase price paid to
us for the particular Equipment involved. In no event will we be liable for
any indirect, incidental, special or consequential damages. The remedies
available to you under this Agreement will be your sole and exclusive
remedies.
You warrant that you have chosen the Equipment provided under this
Agreement based on your own analysis and evaluation and expressly
disclaim any reliance upon statements or representations by us or others."
15. The following will be added as Section 41: "Indemnification for
Equipment. You will indemnify and hold us harmless from and against
any and all losses, liabilities, damages and expenses (including attorneys'
fees) resulting from (a) the purchase, delivery, installation, acceptance,
rejection, ownership, leasing, possession, use, operation, condition, liens
against, or return of the Equipment or (b) any breach by you of any of your
obligations hereunder, except to the extent any losses, liabilities, damages
and expenses result from our gross negligence or willful misconduct. This
indemnity will survive the termination of this Agreement."
You agree to indemnify and hold us harmless from any and all liability for
any claims, actions, proceedings, expenses, damages or liabilities,
including attorney's fees, arising as a result of your selection or use of the
Equipment provided under this Agreement."
16. The following will be added as Section 42: "Sales Taxes,
Installation & De-installation, Etc. You agree to pay any sales taxes
imposed on the transactions contemplated by this Agreement, as well as
any costs associated with the installation and de-installation of the
Equipment, during the term of this Agreement and authorize us, or our
assigns, to increase the amount of your preauthorized payment to reflect
any and all increases in all applicable taxes, or other taxes imposed on the
transactions, contemplated by this Agreement."