|
Updated 11/6/23
<br />
<br />considered an agent, representative, or employee of the other party for any
<br />purpose.
<br />j. Governing Law. Any dispute arising out of or relating to this
<br />Processing Agreement or the breach thereof shall be governed by the laws
<br />of the state of Merchant’s domicile, without regard to or application of
<br />choice of law rules or principles.
<br />k. Audit. Tyler shall maintain complete and accurate records of all
<br />work performed pursuant to and arising out of this Processing Agreement.
<br />Merchant may, upon the written request, audit any and all records of Tyler
<br />relating to services provided herein. Merchant shall provide Tyler twenty-
<br />four hour notice of such audit or inspection. Tyler shall have the right to
<br />exclude from such inspection any Tyler Confidential and Proprietary
<br />Information not otherwise required to be provided to Merchant as a part of
<br />this Processing Agreement. Any such audit shall be conducted at Tyler’s
<br />principal place of business during Tyler’s normal business hours and at
<br />Merchant’s sole expense.
<br />l. No Third Party Beneficiaries. Nothing in this Processing
<br />Agreement is intended to benefit, create any rights in, or otherwise vest any
<br />rights upon any third party.
<br />m. Contra Proferentem. The doctrine of contra proferentem shall
<br />not apply to this Processing Agreement. If an ambiguity exists in this
<br />Processing Agreement, or in a specific provision, neither the Agreement nor
<br />the provision shall be construed against the party who drafted the
<br />Agreement or provision.
<br />n. Force Majeure. No party to this Processing Agreement shall be
<br />liable for delay or failure in the performance of its contractual obligations
<br />arising from any one or more events that are beyond its reasonable control,
<br />including, without limitation, acts of God, war, terrorism, and riot. Upon
<br />such delay or failure affecting one party, that party shall notify the other
<br />party and use all reasonable efforts to cure or alleviate the cause of such
<br />delay or failure with a view to resuming performance of its contractual
<br />obligations as soon as practicable. Notwithstanding the foregoing, in every
<br />case the delay or failure to perform must be beyond the control and without
<br />the fault or negligence of the party claiming excusable delay. Any
<br />performance times pursuant to or arising from this Processing Agreement
<br />shall be considered extended for a period of time equivalent to the time lost
<br />because of any delay that is excusable herein. This section does not
<br />excuse any party from payment obligations under this Processing
<br />Agreement.
<br />o. Equitable Relief. Each party covenants, represents, and
<br />warrants that any violation of this Processing Agreement by such party with
<br />respect to its respective obligations set forth in Section 7 shall cause
<br />irreparable injury to the other party and shall entitle the other party to
<br />extraordinary and equitable relief by a court of competent jurisdiction,
<br />including, without limitation, temporary restraining orders and preliminary
<br />and permanent injunctions, without the necessity of posting bond or
<br />security.
<br />15. CERTAIN DEFINITIONS
<br />a. Association means a group of Card issuer banks or debit networks
<br />that facilitates the use of payment cards accepted under this Processing
<br />Agreement for processing, including, without limitation, Visa,U.S.A., Inc.,
<br />MasterCard International, Inc., Discover Financial Services, LLC and other
<br />credit and debit card providers, debit network providers, gift card and other
<br />stored value and loyalty program providers. Associations also includes the
<br />Payment Card Industry Security Standards Council and the National
<br />Automated Clearinghouse Association.
<br />b. Association Rules means the bylaws, rules, and regulations, as
<br />they exist from time to time, of the Associations.
<br />c. Card or Payment Card means an account, or evidence of an
<br />account, authorized and established between a Cardholder and an
<br />Association, or representatives or members of a Association that Merchant
<br />accepts from Cardholders as payment for a good or service. Payment
<br />Instruments include, but are not limited to, credit and debit cards, stored
<br />value cards, loyalty cards, electronic gift cards, authorized account or
<br />access numbers, paper certificates and credit accounts.
<br />d. Cardholder means the person to whom a Card is issued or who
<br />is otherwise entitled to use a Card.
<br />e. Chargeback means a reversal of a Card sale Merchant
<br />previously presented pursuant to Association Rules.
<br />f. Member or Member Bank means an entity that is a member of
<br />the Associations.
<br />g. Order Form means a document listing the pricing associated with
<br />this Processing Agreement.
<br />h. Processing Agreement means this Payment Card Processing
<br />Agreement, including all exhibits attached hereto and to be attached
<br />throughout the Term of this Processing Agreement, all of which are
<br />incorporated by reference herein.
<br />i. Retrieval Request means a request for information by a
<br />Cardholder or Card issuer relating to a claim or complaint concerning a
<br />Card sale Merchant has made.
<br />j. Transaction means the evidence and electronic record of a sale
<br />or lease transaction representing payment by use of a Card, echeck/ACH,
<br />digital payment or of a return/refund/credit to a Cardholder or any other
<br />payor.
<br />k. Tyler Confidential and Proprietary Information means all
<br />information in any form relating to, used in, or arising out of Tyler’s
<br />operations and held by, owned, licensed, or otherwise possessed by Tyler
<br />(whether held by, owned, licensed, possessed, or otherwise existing in, on
<br />or about Tyler’s premises or Merchant’s offices, residence(s), or facilities
<br />and regardless of how such information came into being, as well as
<br />regardless of who created, generated or gathered the information),
<br />including, without limitation, all information contained in, embodied in (in
<br />any media whatsoever) or relating to Tyler’s inventions, ideas, creations,
<br />works of authorship, business documents, licenses, correspondence,
<br />operations, manuals, performance manuals, operating data, projections,
<br />bulletins, customer lists and data, sales data, cost data, profit data, financial
<br />statements, strategic planning data, financial planning data, designs, logos,
<br />proposed trademarks or service marks, test results, product or service
<br />literature, product or service concepts, process data, specification data,
<br />know how, software, databases, database layouts, design documents,
<br />release notes, algorithms, source code, screen shots, other research and
<br />development information and data, and Intellectual Property.
<br />Notwithstanding the foregoing, Tyler Confidential and Proprietary
<br />Information does not include information that: (a) becomes public other than
<br />as a result of a disclosure by Merchant in breach hereof; (b) becomes
<br />available to Merchant on a non-confidential basis from a source other than
<br />Tyler, which is not prohibited from disclosing such information by obligation
<br />to Tyler; (c) is known by Merchant prior to its receipt from Tyler without any
<br />obligation of confidentiality with respect thereto; or (d) is developed by
<br />Merchant independently of any disclosures made by Tyler.
<br />
<br /> [Remainder of this page intentionally left blank]
<br />Docusign Envelope ID: 4032940E-A9F5-4854-9C2A-8D27AC795DE6
|