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DocuSign Envelope ID: 85A15EAD-F9AE-4B80-8EE6-FBACB34C4780
<br />and any purported assignment made without Processor's and Member Bank's consent will
<br />be void.
<br />9.2 Bankruptcy.
<br />(a) Merchant will notify Processor immediately if any bankruptcy, insolvency or
<br />similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant
<br />Agreement constitutes an executory contract to extend financial accommodations as defined
<br />in 11 U.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in
<br />the event of bankruptcy. Merchant and Processor agree that in the event of Merchant's
<br />bankruptcy, Processor shall be entitled to suspend further performance under this Merchant
<br />Agreement.
<br />(b) Merchant acknowledges and agrees that in the event of a bankruptcy
<br />proceeding, Merchant must establish a Reserve Account or maintain a previously established
<br />and then current Reserve Account in amounts required by Processor and in accordance with
<br />any Reserve Account provision specified in this Merchant Agreement. Processor will have
<br />the right to setoff against the Reserve Account for any and all obligations which Merchant
<br />may owe Processor, without regard as to whether the obligations relate to Transactions
<br />initiated or created before or after the filing of the bankruptcy petition.
<br />10. AMENDMENTS; WAIVERS.
<br />10.1 Amendments. Bank shall have the right to modify or amend the terms and
<br />conditions of this Merchant Agreement, including, without limitation, the right to modify,
<br />amend, or supplement applicable fees, charges, and/or discounts. Modifications and
<br />amendments related to changes to the Operating Rules, changes to the fees charged by the
<br />Card Associations, Member Bank, or third parties, or in response to changes in Requirements
<br />of Law (collectively, a "Third Party Change") may be made effective immediately, with or
<br />without notice. Modifications or amendments unrelated to a Third Party Change shall be
<br />effective upon the date specified in a notice to the Merchant (the "Change Notice"), provided
<br />that the date shall not be fewer than five business days after the date of such Change Notice.
<br />A Change Notice may be reflected as a message attached to Merchant's monthly billing
<br />statements. Following the Effective Date, in the event of any modification or amendment not
<br />related to a Third Party Change, Merchant shall have the right to terminate this Merchant
<br />Agreement, without liability for premature termination pursuant to Section 11.2(d), by
<br />providing written notice thereof to Processor, provided that such notice must be given within
<br />five business days following the date of the Change Notice. Other than the amendments set
<br />forth above, this Merchant Agreement may be amended only in writing signed by Merchant,
<br />Member Bank, and Processor.
<br />10.2 Waivers. Bank's failure to enforce this Merchant Agreement will not waive
<br />Bank's rights under this Merchant Agreement. Waivers of any provision of this Merchant
<br />Agreement must be in writing and signed by Bank. A waiver in one instance will not apply
<br />to other occasions unless that intent is clear from the signed waiver.
<br />11. TERM; TERMINATION.
<br />11.1 Term/Renewal. The initial term of this Merchant Agreement shall be for the term
<br />of three years (the "Initial Term") commencing on the earlier date of the presentation of the
<br />first Transaction, including any test Transaction, by Merchant to Bank or the date Bank
<br />approves the Merchant Application; provided, however, that if Merchant is receiving these
<br />terms and conditions as an amendment to an existing Merchant Agreement, the amendment
<br />shall not affect the then -existing term. By either Merchant's signature on the Merchant
<br />Application or Merchant's processing a Transaction with Bank, Merchant confirms
<br />acceptance of the Merchant Agreement. At the expiration of the Initial Term, this Merchant
<br />Agreement will automatically renew for successive one year periods (each a "Renewal
<br />Term" and collectively with the Initial Term the "Term") unless a party provides the other
<br />parties with notice of its intent not to renew the Merchant Agreement at least ninety days
<br />prior to the expiration of the then current term.
<br />11.2 Termination.
<br />(a) Termination without Cause. Member Bank or Processor or Member Bank's
<br />or Processor's designated representative may terminate the Merchant Agreement as to all
<br />Card types or individually specified Card types, without cause, upon thirty days advance
<br />written notice.
<br />(b) Termination for Cause by Processor or Member Bank. Member Bank or
<br />Processor or Member Bank's or Processor's designated representative may terminate the
<br />Merchant Agreement in its sole and absolute discretion, effective immediately, upon written,
<br />electronic or oral notice, to Merchant if Member Bank or Processor reasonably determines
<br />that any of the following conditions exists:
<br />Merchant has violated any provision of the Merchant Agreement.
<br />(ii) There is a material adverse change in Merchant's financial condition,
<br />material change in Merchant's processing activity, processing activity inconsistent with the
<br />Merchant Application, or Member Bank or Processor determines in its sole discretion that
<br />Merchant's processing activity could result in a loss to Processor or Merchant Bank.
<br />(iii) A petition in bankruptcy has been filed by or against Merchant,
<br />Merchant is generally unable to pay its debts as they become due, a receiver, custodian,
<br />trustee, liquidator or similar official is appointed for a substantial portion of Merchant's
<br />business, there is a general assignment for the benefit creditors, or the business terminates.
<br />(iv) Any information which Merchant provided to Processor or Merchant
<br />Bank, including Merchant Application information, was false, incomplete or misleading
<br />when received, or has materially changed since Merchant provided such information.
<br />(v) At any time during the term of the Merchant Agreement, Merchant has
<br />had a monthly ratio of Chargebacks to Transactions that Processor or Member Bank, in their
<br />sole and absolute discretion, deems excessive.
<br />(vi) There is an overdraft for three days or more in the Settlement Account,
<br />or overdrafts in the Settlement Account are otherwise excessive.
<br />(vii) Merchant or any of Merchant's officers or employees has been
<br />involved in processing Transactions with Processor or Member Bank or other parties arising
<br />from fraudulent or otherwise unauthorized transactions.
<br />(viii) Merchant is or will be unable or unwilling to perform its obligations
<br />under the Merchant Agreement or any applicable laws.
<br />(ix) Merchant has failed to pay Processor or Member Bank any amount
<br />when due.
<br />(x) Merchant has failed to promptly perform or discharge any obligation
<br />under the Merchant Agreement, the Settlement Account or the Reserve Account.
<br />(xi) Any of Merchant's representations or warranties made in connection
<br />with the Merchant Agreement was not true or accurate when given.
<br />(xii) Merchant has defaulted on any agreement it has with Processor or
<br />Member Bank.
<br />(xiii) Processor or Member Bank is served with legal demand, order or
<br />process seeking to attach or garnish any of the provisional credits arising out of or relating
<br />to the Merchant Agreement, Merchant's funds or property in Processor's or Member Bank's
<br />possession,
<br />(xiv) The Operating Rules are amended in any way such that Processor or
<br />Member Bank determines that the continued existence of the Merchant Agreement would
<br />cause Processor or Member Bank to be in breach of such Operating Rules.
<br />(xv) Any Guaranty supporting Merchant's obligations is revoked,
<br />withdrawn or terminated or altered in any way.
<br />(xvi) Any governmental entity initiates proceedings against, or an
<br />investigation regarding, Merchant, or Processor or Member Bank reasonably believes that a
<br />governmental entity may do so.
<br />(xvii) If any circumstances arise regarding Merchant or its business that, in
<br />Processor's or Member Bank's discretion, make harm or loss of goodwill to Processor,
<br />Member Bank or any Card Association likely.
<br />(c) Termination for Cause by Merchant. Merchant may terminate the Merchant
<br />Agreement in the event of a material breach of the terms of the Merchant Agreement by
<br />Processor, provided Merchant gives Processor written notice of any alleged breach and such
<br />breach remains uncured for a period of thirty days following receipt of written notice by the
<br />Processor.
<br />(d) Damages for Early Termination.
<br />(i) Processor and Merchant acknowledge and agree that in addition to all
<br />other remedies available to Processor under the Merchant Agreement or as otherwise
<br />available in law or equity, if the Merchant Agreement is terminated prior to the expiration of
<br />the applicable Term of the Merchant Agreement for any reason other than for a material,
<br />uncured breach by Processor, Merchant agrees to pay Processor damages (the "Damages")
<br />determined by adding an account closure fee as follows (unless a different amount is
<br />disclosed on the Merchant Application): (1) $250 for Merchants with less than twelve months
<br />remaining from the date of termination to the end of the then current Term, or; (2) $500 for
<br />Merchants with more than twelve months remaining, or such portion of the foregoing as may
<br />be permitted by applicable law.
<br />(ii) Merchant agrees that such Damages shall also be due to Processor if
<br />Merchant discontinues submitting Transactions for processing during the Term for a period
<br />of ninety (90) consecutive days, and is not designated on the Merchant Application, or by
<br />notice to Processor, as a seasonal merchant or as otherwise agreed to by Processor.
<br />(iii) Merchant acknowledges and agrees that the Damages are not a penalty
<br />but rather are a reasonable computation of the financial harm caused by the termination of
<br />the Merchant Agreement or the cessation of processing activity by Merchant.
<br />(e) Member Bank's or Processor's rights of termination under the Merchant
<br />Agreement are cumulative. A specific right of termination shall not limit any other right of
<br />Processor or Member Bank to terminate the Merchant Agreement expressed elsewhere in the
<br />Merchant Agreement. Notice of termination may be given orally or in writing, if given orally,
<br />shall be confirmed in writing, except as otherwise stated in the Merchant Agreement.
<br />(f) Upon termination, Merchant's rights to complete Transactions and submit
<br />them to Processor, and to use Transaction form or formats, promotional material and any
<br />other items provided by Processor, will cease. Termination of the Merchant Agreement will
<br />not terminate the rights and obligations of Merchant, Processor and Member Bank relating
<br />to acts or omissions occurring before termination, including for example, any Processing
<br />Fees or other service fees owed to Processor, any Transactions processed for Merchant by
<br />Processor (whether before or after termination), Merchant's Chargeback and indemnity
<br />obligations, and the Security Interest granted to Processor and Member Bank in the Merchant
<br />Agreement.
<br />(g) It is understood that a file for terminated merchants referred to as Member
<br />Alert to Control High -Risk Merchants ("MATCH"), formerly known as the Terminated
<br />Merchant File ("TMF"), is managed and maintained by Mastercard and utilized by the Card
<br />Associations and acquiring banks to identify the names of any business (and its principals)
<br />that have been terminated for certain reasons, including fraud, depositing excessive
<br />counterfeit paper, excessive unauthorized transactions, excessive chargebacks, depositing
<br />paper for others (laundering), bankruptcy or breach of a Merchant Agreement. Merchant
<br />acknowledges that Member Bank or Processor is required to report Merchant to the MATCH
<br />(and/or on the Consortium Merchant Negative File (the CMNF) published by Discover®
<br />Network) if the Merchant Agreement is terminated for any of the foregoing reasons or other
<br />reasons as may be modified by the Card Associations. Merchant agrees and consents to such
<br />reporting in the event of the termination of the Merchant Agreement for any of the foregoing
<br />reasons, and Processor and Member Bank shall have no liability for such reporting, even in
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