MERCHANT PROCESSING AGREEMENT

This Merchant Processing Agreement ("Agreement") is entered into as of the date accepted by BMS and Bank (as indicated by the assignment of a Merchant identification number), by and among the business indicated on the Merchant Application ("Merchant" or "you"), Blackstone Merchant Services, Inc., a Florida corporation ("BMS"), an affiliate of and the registered service provider for Universal Savings Bank, F.A., located at 11600 N.W. 34th Street, Miami, Florida and Universal Savings Bank, F.A., a federal savings association ("Bank"), as a principal member of MasterCard and Visa, located at 754 N. 4th Street, Milwaukee, WI 53203: which are jointly and severally referred to herein as "BMS and Bank".

Recitals:

A. Merchant desires to accept credit cards validly issued by Visa U.S.A., Inc. ("Visa") and MasterCard International, Incorporated ("MasterCard") ("Cards").

B.  BMS and Bank desires to provide credit and debit card processing services and other related products and services to Merchant.

C. Therefore, Merchant and BMS and Bank agree as follows:

Terms and Conditions:

1. Honoring Cards.

A.        Without Discrimination.  You will honor, without discrimination, any Card properly tendered by a Cardholder.  "Cardholder" means a person possessing a Card and purporting to be the person in whose name the Card is issued.

B.            Cardholder Identification.  You will identify the Cardholder and check the expiration date and signature on each Card.  You will not honor any Card if:

            i. the Card has expired,

            ii. the signature on the sales draft does not correspond with the signature on the Card, or

            iii. the account number embossed on the Card does not match the account number on the Card’s magnetic stripe (as printed in electronic form) or the account number is listed on a current Electronic Warning Bulletin file. 

            Unless permitted under the Laws and Rules (defined below), you will not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address, or a driver’s license number, as a condition for honoring a Card.

C.        Card Recovery.  You will use your reasonable, best efforts to recover any Card:

            i. on Visa Cards, if the printed four digits above the embossed account number do not match the first four digits of the embossed account number,

            ii. if you are advised by BMS or Bank (or its designee), the issuer of the Card or the designated voice authorization center to retain it,

            iii. if you have reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder, or

            iv. for MasterCard Cards, the embossed account number, indent printed account number and/or encoded account number do not agree, or the Card does not have a MasterCard hologram on the lower right corner of the Card face.

D. Surcharges.  You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card, consistent with the Laws and the Rules.  This paragraph does not prohibit you from offering a discount to induce a person to pay by cash, check or similar means rather than by using a Card.

E.         Return Policy.  You will properly disclose to the Cardholder in writing, at the time of the Card transaction and in accordance with the Rules, any limitation you have on accepting returned merchandise.

F.         No Claim Against Cardholder.  You will not have any claim against, or right to receive payment from, a Cardholder unless  Bank refuses to accept the Sales Draft (as defined in Section 3) or revokes its prior acceptance of the Sales Draft (after receipt of a chargeback or otherwise).  You will not accept any payments from a Cardholder relating to previous charges for merchandise or services included in a Sales Draft, and if you receive any such payments, you promptly will remit them to  Bank.

G. Disputes With Cardholders.  All disputes between you and any Cardholder relating to any Card transaction will be settled between you and the Cardholder. BMS and Bank bears no responsibility for such transactions.

2. Authorization.

A.            Required on all Transactions.  You will obtain a prior authorization via electronic terminal or similar device before completing any transaction.  You will follow any instructions received during the authorization process.  Upon receipt of authorization, you may consummate only the transaction authorized and must note on the Sales Draft the authorization number. Where authorization is obtained, you will be deemed to warrant the true identity of the customer as the Cardholder.

B.         Effect.  Authorizations are not a guarantee of acceptance or payment of the Card transaction.  Authorizations will not waive any provision of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card.  You are fully liable for all chargebacks.

C.  Unreadable Magnetic Stripes.  If you authorize and present Card transactions electronically and your terminal is unable to read the magnetic stripe on the Card, you will obtain an imprint of the Card and the Cardholder’s signature on the imprinted draft before presenting the transaction to BMS and Bank for processing.

3. Presentment of Sales Drafts. 

A.        Forms.  You will use a sales draft or other form approved by BMS and Bank  ("Sales Draft") to document each Card transaction.  Each Sales Draft will be legibly imprinted with:

            i. Merchant’s name and account number,

            ii. the information embossed on the Card presented by the Cardholder (either electronically or manually),

            iii. the date of the transaction,

            iv. a brief description of the goods or services involved,

            v. the transaction authorization number,  

            vi. the total amount of the sale (including any applicable taxes) or credit transaction, and

            vii.  adjacent to the signature line, a credit policy notation that all sales are final, and that special orders will take a period of time, if applicable.

B.            Signatures.  Sales Drafts must be signed by the Cardholder unless the Card transaction is a valid mail/telephone order Card transaction which fully complies with the requirements set forth in this Agreement.

C.            Reproduction of Information.  If the following information embossed on the Card and the Merchant’s name is not legibly imprinted on the Sales Draft, you will legibly reproduce:

            i. the Cardholder’s name,

            ii. account number,

            iii. expiration date, and

            iv. the Merchant’s name and place of business. 

            Additionally, for MasterCard transactions, you will legibly reproduce the name of the bank as it appears on the face of the Card. 

D. Delivery and Retention of Sales Drafts.  You will deliver a true and complete copy of the Sales Draft or credit voucher to the Cardholder at the time of the transaction.  You will  retain the "merchant copy" of the Sales Draft or credit memorandum for at least 7 years following the date of completion of the Card transaction (or such  longer period as the Rules require). 

E.            Electronic Transmission.  If you utilize electronic authorization and/or data capture services, you will enter the data related to a sales or credit transaction into an electronic point of sale terminal or magnetic stripe reading terminal no later than the close of business on the date the transaction is completed.  If you provide your own electronic terminal or similar device, or you lease a terminal from a third party, such terminals must meet BMS and Bank’s requirements for processing transactions.  Information regarding a sales or credit transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by you to BMS and Bank or its agent in the from BMS and Bank from time to time specifies, or as required under the Laws or Rules.  If BMS and Bank requests a copy of a Sales Draft, credit voucher or other transaction evidence, you will provide it within 24 hours following the request.

4          Deposit of Sales Drafts.  

A.        Deposit of Sales Drafts.  Subject to this Section, Bank will deposit to the Designated Account (defined in Section 6 below) all Sales Drafts (whether evidenced in writing or by electronic means) complying with the terms of this Agreement and the Rules and will provide you provisional credit for such Sales Drafts (less any credit(s), adjustments and chargebacks).  Notwithstanding the previous sentence, under no circumstance will  Bank be responsible for processing credits or adjustments related to original sales transactions not processed by  Bank.  All Sales Drafts and deposits are subject to audit and final checking by Bank, and may be adjusted for inaccuracies.  You acknowledge that all credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules.   Bank may elect to grant conditional credit for individual or groups of any Sales Drafts.  Final credit for those conditional Sales Drafts will be granted within  Bank’s sole discretion.

B.            Excessive Activity. Your presentation to  Bank of Excessive Activity will be a breach of this Agreement and cause for immediate termination of this Agreement.  "Excessive Activity" means, during any monthly period, chargebacks and/or retrieval requests in excess of one percent (1%) of the average monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity,  Bank to take additional actions as it deems necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a reserve account in accordance with this Agreement.

C.        Credits. 

            i. Credit Memoranda.  You will issue a credit memorandum in a form approved by  Bank, instead of making a cash advance, a disbursement or a refund on any Card transaction.   Bank will debit the Designated Account for the total face amount of each credit memorandum submitted to  Bank.  You will not submit a credit relating to any Sales Draft not originally submitted to  Bank, nor will you submit a credit that exceeds the amount of the original Sales Draft.  You will, within the time period specified by applicable law, provide  Bank with a credit memorandum or credit statement for every return of goods or forgiveness of debt for services which were the subject of a Card transaction.

            ii. Revocation of Credit.   Bank may refuse to accept any Sales Draft or revoke its prior acceptance of a Sales Draft in the following circumstances:  (a) the transaction giving rise to the Sales Draft was not made in compliance with this Agreement, the Laws and the Rules; (b) the Cardholder disputes his liability to  Bank for any reason, including but not limited to those chargeback rights enumerated in the Rules; or (c) the transaction giving rise to the Sales Draft was not directly between you and the Cardholder.  You will pay  Bank any amount previously credited to you for a Sales Draft not accepted by  Bank. 

D.            Reprocessing.  Notwithstanding any authorization or request from the Cardholder or customer, you will not reenter or reprocess any Card transaction which has been charged back.

E.            Miscellaneous.  You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder.  You will not sell or disclose to third parties card account information other than in the course of performing your obligations under this Agreement.

5. Other Types of Transactions.

A.        Mail Order. You may not solicit or accept mail orders or telephone orders or any transaction in which the Cardholder and Card are not present ("mail/telephone orders") without BMS and Bank’s prior written authorization.  All mail/telephone orders must be approved by BMS and Bank’s address verification service vendor.  Mail/telephone orders completed without prior written consent of BMS and Bank will be a breach of this Agreement and cause for immediate termination in addition to any other remedies available under the Laws and Rules.  You will obtain the expiration date of the Card for a mail/telephone order and submit the expiration date when obtaining authorization of the Card transaction.  For mail/telephone order transactions, you will type or print legibly on the signature line of the Sales Draft the following, as applicable:  telephone order or "TO"; or mail order or "MO".

B.            Recurring Transactions.  For recurring transactions, you must obtain a written request from the Cardholder for the goods and services to be charged to the Cardholder’s account, the frequency of the recurring charge, and the duration of time during which such charges may be made.  You will not complete any recurring transaction after receiving: (i) a cancellation notice from the Cardholder, (ii) notice from BMS and Bank, or (iii) a response that the Card is not to be honored.  You must print legibly on the Sales Draft the words "Recurring Transaction".

C.            Multiple Sales Drafts. You will include a description and total amount of goods and services purchased in a single sales transaction on a single Sales Draft or transaction record, unless: (i) partial payment is entered on the Sales Draft or transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in a Card transaction completed in accordance with this Agreement and the Rules.

D.        Partial Completion. 

            i. Prior Consent.  You will not accept for payment by Card any amount representing a deposit or partial payment for goods or services to be delivered in the future without the prior written consent of BMS and Bank.  The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future without prior consent will be deemed a breach of this Agreement and cause for immediate termination, in addition to any other remedies available under the Laws or Rules.

            ii. Acceptance.  If you have obtained prior written consent, then you will complete such Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one Sales Draft when making a deposit with a Card and a second Sales Draft when paying the balance.  You will note upon the Sales Draft the words "deposit" or "balance" as appropriate.  You will not deposit the Sales Draft labeled "balance" until the goods have been delivered to Cardholder or you have fully performed the services.

E.         Future Delivery.  You will not present any Sales Draft or other memorandum to BMS and Bank  for processing (whether by electronic means or otherwise) which relates to the sale of goods or services for future delivery without BMS and Bank’s prior written authorization.  If BMS and Bank has previously given such consent, you represent and warrant to BMS and Bank that you will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services.  You will maintain sufficient working capital to provide for the delivery of goods or services at the agreed upon future date, independent of any credit or proceeds resulting from Sales Drafts or other memoranda taken in connection with future delivery transactions.

F.         Internet Transactions.  You must get BMS and Bank’s consent to process Internet transactions, and you may process such transactions only if the transactions have been encrypted by a third party vendor acceptable to Bank.  All Internet transactions must be approved by  Bank’s address verification service vendor.  You understand that transactions processed via the Internet are high risk and subject to a higher incidence of chargebacks.  All communication costs related to Internet transactions will be your responsibility.  You understand that BMS or Bank will not manage the Internet telecommunications link and that it is your responsibility to manage that link.  You also understand that BMS and Bank do not have a 7 days per week/24 hour per day operation.  All Internet transactions will be settled by  Bank into a depository institution of the United States in U.S. currency.

6. Designated Account. 

A.             Establishment and Authority.  You will establish and maintain with  Bank (or with a depository institution acceptable to  Bank), one or more commercial checking account(s) to facilitate payment for Card transactions ("Designated Account").  You will maintain sufficient funds in the Designated Account to accommodate all transactions, including fees, contemplated by this Agreement.  You irrevocably authorize  Bank to debit the Designated Account for chargebacks in accordance with the Rules, fees and any other amounts due or payments under this Agreement.  This authority will remain in effect for 2 years after termination of this Agreement, whether or not you have notified  Bank of a change to the Designated Account.  You must obtain prior written consent from  Bank to change the Designated Account.  If you don’t get that consent,  Bank may immediately terminate the Agreement and may take other actions necessary to protect it within its discretion.

B.         Bank Designated Account.  If the Designated Account is maintained with Bank,  Bank will deposit all Sales Drafts to it subject to Section 4 of this Agreement. You authorize  Bank  to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant you conditional credit for any entry.

C.        Other Designated Account.  If  the Designated Account is maintained at a depository institution approved by  Bank,  Bank will make deposits to the Designated Account pursuant to this Agreement and the ACH Authorization (defined below).  You authorize and appoint  Bank to act as your agent to collect Card transaction amounts from Cardholders' issuing  Bank.  As the collecting agent,  Bank, in its sole discretion, may grant you provisional credit for transaction amounts in the process of collection, subject to receipt of final payment by  Bank and subject to all chargebacks.

D.            Asserted Errors.  Promptly examine all statements relating to the Designated Account, and immediately notify  Bank in writing of any errors. Your written notice must include: (i) Merchant name and account number, (ii) the dollar amount of the asserted error, (iii) a description of the asserted error, and (iv) an explanation of why you believe an error exists and the cause of it, if known. That written notice must be received by  Bank within 30 days after you received the periodic statement containing the asserted error.  You may not make any claim against   Bank for any loss or expense relating to any asserted error for 60 days immediately following our receipt of your written notice.  During that 60 day period,  Bank will be entitled to investigate the asserted error.

E.            Indemnity.  You will indemnify and hold BMS and Bank harmless for any action it takes against the Designated Account pursuant to this Section.  You will also indemnify and hold harmless the institution at which you maintain your Designated Account for acting in accordance with any instruction from Bank regarding the Designated Account.  This section will survive termination of this Agreement.

F.         ACH Authorization.  You authorize  Bank to initiate debit/credit entries to the Designated Account, or any other account maintained by you at any institution that is a receiving Bank of ACH, all in accordance with this Agreement and the Authorization Agreement Regarding Automatic Funds Transfer (ACH Credits/Debits) provided by  Bank (the "ACH Authorization").  You authorize  Bank to debit via ACH the Designated Account for any amounts you owe  Bank under this Agreement.  In the event you change the Designated Account, you will execute a new ACH Authorization. 

7. Security Interests, Reserve Account, Recoupment and Set-Off.

A.             Security Interests.  This Agreement will constitute a security agreement under the Uniform Commercial Code.  You grant to Bank a security interest in and lien upon:  (i) all funds at any time in the Designated Account, (ii) the Reserve Account (as defined below), (iii) future Sales Drafts, and (iv) all your rights relating to this Agreement including, without limitation, all rights to receive any payments or credits under this Agreement (collectively, the "Secured Assets").  Upon request of  Bank, you will execute one or more financing statements or other documents to evidence this security interest.  You represent and warrant that no other person or entity has a security interest in the Secured Assets.  These security interests and liens will secure all of your obligations under this Agreement and any other agreements between Merchant and BMS and Bank including, but not limited to, your obligation to pay any amounts due to  Bank.  This security interest may be exercised by  Bank without notice or demand of any kind by making an immediate withdrawal or freezing the secured assets.  Further, respect to such security interests and liens,  Bank will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity.  You will obtain from  Bank  written consent prior to granting a security interest of any kind in the Secured Assets to a third party.

B. Reserve Account.

            i. Establishment.  You will establish and maintain a noninterest bearing deposit account  ("Reserve Account") at Bank initially or at any time in the future as requested in good faith by  Bank, with sums sufficient to satisfy your current and future obligations as determined by  Bank.  d Bank may establish a Reserve Account by depositing incoming items into a Reserve Account if it determines in good faith a reserve is necessary, including but not limited to a determination that transactions are outside of the risk parameters indicated by you on the Merchant Application.  You authorize  Bank to debit the Designated Account to establish or maintain funds in the Reserve Account.   Bank may deposit into the Reserve Account funds it would otherwise be obligated to pay you, for the purpose of establishing or maintaining the Reserve Account in accordance with this Section, if it determines such action is reasonably necessary to protect its interests.

            ii. Authorizations.  Bank may, without notice to you, apply deposits in the Reserve Account against any outstanding amounts you owe under this Agreement or any other agreement between you and  Bank.  Also,  Bank may exercise its rights under this Agreement to collect any amounts due to  Bank including, without limitation, rights of set-off and recoupment.

            iii. Funds. Funds in the Reserve Account will remain in the Reserve Account until 270 days following termination of this Agreement, provided, however, that you will remain liable to  Bank for all liabilities occurring beyond such 270 day period.  Bank will have sole control of the Reserve Account.

C.            Recoupment and Set Off.   Bank has the right of recoupment and set-off.  This means that it may offset any outstanding/uncollected amounts owed to it from:  (i) any amounts it would otherwise be obligated to deposit into the Designated Account, and (ii) any other amounts  Bank may owe you under this Agreement or any other agreement.

D.            Remedies Cumulative.  The rights and remedies conferred upon  Bank in this Agreement, at law or in equity are not intended to be exclusive of each other.  Rather, each and every right of  Bank under this Agreement, at law or in equity will be cumulative and concurrent and in addition to every other right.

8. Fees and Other Services. 

A.        Fees.  You will pay BMS and Bank fees for services, forms or equipment in accordance with Pricing Section A.  Such fees will be calculated and debited from the Designated Account.

B.         Fee Amendments.  In the event any Card Association increases interchange, fees or assessments, such increases will be passed through to you.  In addition, BMS and Bank may amend the fees from time to time.

C.        Taxes.  You are also obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement.

D.  Other Services.  BMS and Bank will provide those products and services indicated by a check mark on the attached Pricing Section A, Services Requested, in accordance with the terms set forth in the appropriate Schedule.

E.  Merchant Club.  You will be entitled to the benefits of the Merchant Club, the specifications of which are set forth in the Credit Card Processing Procedures Handbook.

F.  Chargeback Fee. Merchant understands that  Bank will assess up to $25 per each chargeback, and up to $25 per each chargeback that is debited to Merchant’s designated account and subsequently returned to  Bank through ACH for insufficient funds or any other reason.  Furthermore,  Bank may assess Merchant for any fines imposed by MasterCard/Visa plus a fee for processing such fine as may be required by  Bank at its sole discretion.

G.  Transaction Fee. Transaction fee shall mean a fee charged on each sales draft and each credit draft regardless of total stated and shall also mean a fee charged for any other transaction which utilizes a POS device for transmission or reception of data or information, including but not limited to, debit card transactions, batch closing, authorizations and any other communication using the POS terminal.

            I.  Retrieval Fee. Merchant understands that  Bank will assess up to $15 per each retrieval request.

9. Application, Indemnification, Limitation of Liability.

A.            Application.  You represent and warrant to BMS and Bank that all information in the Application is correct and complete.  You must notify BMS and Bank in writing of any changes to the information in the Application, including but not limited to:  any additional location or new business, the identity of principals and/or owners, the form of business organization (i.e., sole proprietorship, partnership, etc.), type of goods and services provided, and how sales are completed (i.e., by telephone, mail, or in person at your place of business).  The notice must be received by BMS and Bank within 10 business days of the change.  You will provide updated information to BMS and Bank within a reasonable time upon request.  You are liable to BMS and Bank for all losses and expenses incurred by BMS and Bank  arising out of your failure to report changes to it.  BMS and Bank retains the right to review your processing activity to confirm Merchant is processing transactions as stated in the Application, and to reprice or terminate its services based on changes to the facts stated in the Application.

B.            Indemnification.  You will be liable for, hold harmless, and will indemnify BMS and Bank, and its employees and agents: i) against all claims by third parties arising out of this Agreement, and ii) for all attorneys’ fees and other costs and expenses paid or incurred by BMS and Bank in the enforcement of the Agreement, including but not limited to those resulting from any breach by you of this Agreement.

C.            Limitation of Liability.  The liability, if any, of BMS and Bank under this Agreement for any claims, costs, damages, losses and expenses for which it is or may be legally liable, whether arising in negligence or other tort, contract, or otherwise, will not exceed in the aggregate the amount of fees paid by you, less interchange and assessments, over the previous 4 month period, calculated from the date the liability accrued.  In no event will BMS and Bank or its agents, officers, directors or employees be liable for indirect, special, or consequential damages.

D.            Performance.  BMS and Bank will perform all services in accordance with this Agreement.  BMS and Bank makes no other warranty, express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty.  BMS AND BANK DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  No party will be liable to the other for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.

10. Representations and Warranties.  You represent and warrant to BMS and Bank  the following:

A.            Information.  All information contained on the Application or any other document submitted to BMS and Bank is true and complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Merchant.  You are not engaged or affiliated with any businesses, products or methods of selling other than those set forth on the Application, unless you obtain the prior written consent of BMS and Bank.

B.            Corporate Power.  Merchant and the person signing this Agreement have the power to execute and perform this Agreement.  This Agreement will not violate any law, or conflict with any other agreement to which you are subject.

C.        No Litigation.  There is no action, suit or proceeding pending or to your knowledge threatened which if decided adversely would impair your ability to carry on your business substantially as now conducted or which would adversely affect your financial condition or operations.

D.            Transactions.   All transactions are bona fide.  No transaction involves the use of a Card for any purpose other than the purchase of goods or services from you and does not involve a Cardholder obtaining cash from you unless allowed by the Rules and agreed in writing with BMS and Bank.

E.         Rule Compliance.  You will comply with the Laws and Rules.

11. Audit, Financial Information and Personal Guarantee.

A.        Audit.  You authorize BMS and Bank  to audit your records to confirm compliance with this Agreement.  You will obtain, and will submit a copy of, an audit of your business when requested by BMS and Bank.

B.            Financial Information.

            i. Authorizations.  You authorize BMS and Bank to make any credit inquiries it considers necessary to review the acceptance and continuation of this Agreement.  You also authorize any person or credit reporting agency to compile information to answer those credit inquires and to furnish that information to BMS and Bank.

            ii. Documents.  You will provide BMS and Bank personal and business financial statements and other financial information as requested from time to time.  You will furnish within 120 days after the end of each fiscal year to BMS and Bank a financial statement of profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year.

C.            Personal Guarantee. The owners/officers ("Guarantors"), by their execution of this Agreement unconditionally and irrevocably personally guarantee the full and faithful performance or payment by Merchant of all of its duties and obligations under this Agreement and after termination.  Merchant and Guarantors unconditionally and irrevocably guarantee the full and faithful performance or payment of all duties and obligations owed to BMS and Bank under any agreement between Merchant and BMS and Bank, whether that other agreement was executed before or after the execution of this Agreement.  Merchant and each Guarantor acknowledge that this obligation is in the interest of the marriage of each Guarantor and his/her spouse, that BMS and Bank may obtain updated credit information on Guarantors, and that BMS and Bank may request additional security as the situation warrants at BMS and Bank’s sole discretion.

12. Third Parties.

A.            Services.  You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions.  You are responsible for ensuring compliance with the requirements of any third party in using their products.  This includes making sure you have and comply with any software updates.  BMS and Bank has no responsibility for any transaction until that point in time BMS and Bank receives data about the transaction.

B.         Use of Terminals Provided by Others.  You will notify BMS and Bank immediately if you decide to use electronic authorization or data capture terminals provided by any entity other than BMS and Bank or its authorized designee ("third party terminals") to process transactions, including leasing a terminal from a third party.  If you elect to use third party terminals, you agree (i) the third party providing the terminals will be your agent in the delivery of Card transactions to BMS and Bank; and (ii) to assume full responsibility and liability for any failure of that third party to comply with the Rules or this Agreement.  BMS and Bank will not be responsible for any losses or