TSYS MERCHANT SOLUTIONS, LLC DBA GLOBAL PAYMENTS

Home Browse Search

DocuSign Envelope ID: 85Al5EAD-F9AE-4B80.8EE6-FBACB34C4780 and any purported assignment made without Processor's and Member Book's consent will be void. 9.2 Bankruptcy. (a) Merchant will notify Processor immediately if may bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant Agreement constitutes an executory contract to extend financial accommodations as darned in I 1 U.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in the event of bankruptcy. Merchant and Processor agree that in the event of Merchant's bankruptcy, Processor short be entitled to suspend further performance tinder this Merchant Agreement (b) Merchant acknowledges and agrees that in the event of a bankruptcy proceeding, Merchant must establish a Reserve Account or maintain a previously established and then current Reserve Account in amounts required by Processor and in accordance with any Reserve Account provision specified in this Merchant Agreement Processor will have the right to setoff against the Reserve Account for any and all obligations which Merchant may owe Processor, without regard as to whether the obligations relate to Transactions initiated or created before or after the filing of the bankmptcy petition. 10.AMENDNIENTS; WAIVERS. 10.1 Amendments. Bank shall have the right to modify or amend the temis and conditions of this Merchant Agreement, including, without limitation, the right to modify, amend, or supplement applicable fees, charges, and/or discounts. Modifications and amendments related to changes to the Operating Rules, changes to the lees charged by the Card Associations, Member Bank, or third panes, arm response to changes in Requirements of Law (collectively, a "Third Party Change") may be made effective immediately, with or without tiatice. Modifications or amendments unrelated to a Third Party Change shall be effective upon the date specified in a notice to the Merchant (the "Change Notice', provided that the date shall not be fewer than five business days after the date of such Change Notice. A Change Notice may be reflectedas a message attached to Merchant's monthly billing statements. Following the Effective Date, in the event of any modification or amendment not related to a Third Party Change, Merchant shall have the right to terminate this Merchant Agreement, without liability for premature temaination pursuant to Section 111(d), or providing written notice thereofto Processor, provided that such notice must be given within rive business days following the date of tire Change Notice. Other than the amendments set Forth above, this Merchant Agreement may be amended only in writing signed by Merchant, Member Bonk, and Processor. 10.2 Waivers. Batik's failure to enforce this Merchant Agreement will not waive Bank's rights under this Merchant Agreement. Waivers of any provision of this Merchant Agreement must be in writing and signed by Bank. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver. 11. TERM;'FERMINATION. I1.1 Terni/Roncwal. The initial term of this Merchant Agreement shall be Car theterm of three years (the "Initial Torn") commencing on (lie earlier date oftlne presentation ofthe first Transaction, including any lost Transaction, by Merchant to Bank or tire date Bank approves (he Merchant Application; provided, however, that if Merchant is receiving these terms and conditions as an amendment to an existing Merchant Agreement, the amendment shall not affect the then -existing tern. By either Merchant's signature on the Merchant Application or Merchant's processing a 'transaction with Bank,Merchant confirms acceptance of the Merchant Agreement. At the expiration of the Initial Term, this Merchant Agreement will antommically renew for successive one year periods (each a "Renewal Tenn" and collectively with the Initial Term the " rern') unless a party provides the other parties with notice of its intent not to retiew the Merchant Agreement at leas( ninety days prior to the expiration of the then current term. 11.2 'Termination. (a) Termination without Cause. Member Bank or Processor or Member Bank's or Processor's designated representative may terminate the Merchant Agreement as to all Card types or individually specified Card types, without cause, upon thirty days advance written notice. . (b) Termination for Cause by Processor or Member Bank. Member Bank at Processor or Member Bank's or Processor's designated representative may terminate the Merchant Agreement in its sole and absolute discretion, effective immediately, upon written, electronic or oral notice, to Merchant if Member Bank or Processor reasonably determines that any of the following conditions exists: (i) Merchant has violated any provision of the Merchant Agreement. (it) There is a material adverse change in Merchant's financial condition, material change in Merchant's processing activity, processing activity inconsistent with the Merchant Application, or Member Bank or Processor determines in its .sole discretion that Merchant's processing activity could result in a Ions to Processor or Merchant Bank. (iii) A petition in bankruptcy has been tiled by or against Merchant, Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar official is appointed for a substantial portion of Merchant's business, there is a general assignment for the benefit creditors, or the business terminates. (iv) Any information which Merchant provided to Processor or Merchant Bank, including Merchant Application in Formation, was false, incomplete or misleading when received, or has materially changed since Merchant provider) such information. (v) At any time during the term of the Merchant Agreement, Merchant has had a monthly ratio of Chargebacks to Transactions that Processor or Member Bank, in their sole and absolute discretion, deems excessive. (vi) There is an overdraft for flaee days or more in the Settlement Account, or overdrafts in the Settlement Account are otherwise excessive. (vii) Merchant or any of Merchant's officers or employees has been involved in processing Transactions with Processor or Member Bank or other parties arising from fraudulent or otherwise unauthorized transactions. (via) Merchant is or will be unable or unwilling to perform its obligations tinder the Merchant Agreement or any applicable laws (ix) Merchant has failed to pay Processor or Member Bank any amount when due. (x) Merchant has failed to promptly perform or discharge any obligation under the Merchant Agreement, the Settlement Account or the Reserve Account. (xi) Any of Merchant's representations or war tidies made in connection with the Merchant Agreement was not true or accurate when given. (xii) Merchant has defaulted on any agreement it has with Processor or Member Bank. (xiii) Processor or Member Bank is served with legal demand, order or process seeking to attach or garnish any of the provisional credits arising out of or relating to the Merchant Agreement, Merchant's funds or property in Processor's or Member Bank's possession, (xiv) The Operating Rules are amended in any way such that Processor or Member Bank determines that the continued existence of the Merchant Agreement would cause Processor or Member Bank to be in breach of such Operating Rules. (xv) Any Guaranty supporting Merchant's obligations is revoked, withdrawn or terminated or altered in any way. (xvi) Any governmental entity initiates proceedings against, or an - investigation regarding, Merchant, or Processor or Member Bank reasonably believes that a governmental entity may do so. (xvii) If any circumstances arise regarding Merchant or its business that, in Processor's or Member Bank's discretion, make harm or loss of goodwill to Processor, Member Bank or any Card Association likely. (c) Termination for Cause by Merchant. Merchant may terminate the Merchant Agreement in the event of a material breach of the lamas of the Merchant Agreement by Processor, provided Merchant gives Processor written notice of any alleged breach and such breach remains uncured for a period of thirty days following receipt of written notice by the Processor. (d) Damages for Early Termination. (i) Processor and Merchant acknowledge mid agree that in addition to all other remedies available to Processor under the Merchant Agreement or as otherwise available in law or equity, if the Merchant Agreement is terminated prior to the expiration of the applicable Term of the Merchant Agreement for any reason other than for a material, uncured breach by Processor, Merchant agrees to pay Processor damages (the "Damages") determined by adding an account closure fee as follows (unless a different amount is disclosed on the Merchant Application): (1) $250 for Merchants with less than twelve months remaining from the date of termination to the end of the then current Tenn, or; (2) $500 for Merchants with more than twelve months remaining, or such portion of the foregoing as may be permitted by applicable law. (it) Merchant agrees that such Damages shall also be due to Processor if Merchant discontinues submitting *Transactions for processing during the'fenn for a period of ninety (90) consecutive days, and is not designated on the Merchant Application, or by notice to Processor, as a seasonal merchant or as otherwise agreed to by Processor. rim) Merchant acknowledges mid agrees that the Damages are not a penalty but rather are a reasonable computation of the financial ]tarn caused by the lernination of the Merchant Agreement or the cessation of processing activity by Merchant. (e) Member Bank's or Processor's rights of termination under the Merchant Agreement are cumulative. A specific right of termination shall not limit any other right of Processor or Member Bank to terminate the Merchant Agreement expressed elsewhere in the Merchant Agreement, Notice of -termination may be given orally or in writing, if given orally, shall be continued in writing, excepting otherwise stated in the Merchant Agreement. T) Upon termination, Merchant's rights to complete Transactions and submit them to Processor, and to use Transaction form or formats, promotional material and any other items provided by Processor, will cease, Termination of the Merchant Agreement will not terminate the rights and obligations of Merchant, Processor and Member Bank relating to acts or omissions occurring before termination, including for example, any Processing Fees or other service fees owed to Processor, any 'transactions processed for Merchant by Processor (whether before or allot temanatiorl Merchant's Chargcback and indemnity obligations, and the Security Interest granted to Processor and Member Bank in the Merchant Agreement. (g) It is understood that a file for terminated merchants referred to as Member Alert to Control high -Risk Merchants ("NIAT'C.H" ), formerly known as the Terminated Merchant File ("IMF"), is managed and maintained by Mastercard and utilized by die Card Associations and acquiring banks to identify the names of any business (and its principals) that have been terminated for certain reasons, including fraud, depositing excessive counterfeit_ paper, excessive unauthorized transactions, excessive chargebacks, depositing paper for others (laundering), bankruptcy or breach of a Merchant Agreement. Merchant acknowledges that Member Bank or Processor is required to report Merchant to the MATCH (and/or on the Consortium Merchant Negative File (the CMNF) published by Discover© Network) if the Merchant Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Associations. Merchant agrees and consents to Stich reporting in the event of the termination of the Merchant Agreement for any of the foregoing reasons, and Processor and Member Bank shall have no liability for such reporting, even in Page 5 of 10 UNIVh1ERAGIvIT v22.0421