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Updated 11/6/23
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<br />disassemble or decompile the Intellectual Property. Merchant shall not give
<br />any third party, except Merchant’s employees, access to the Intellectual
<br />Property without Tyler’s prior written consent.
<br />6. THIRD PARTY PROVIDERS
<br />Tyler may, in its sole discretion, contract with alternate Members,
<br />payment processors or other third party providers to provide services under
<br />this Processing Agreement. In such event, Merchant shall reasonably
<br />cooperate with Tyler, including the execution of a new Member Bank
<br />Agreement by Merchant; provided, however, that if the terms and conditions
<br />of the new Member Bank Agreement are substantially different than
<br />Merchant’s existing Member Bank Agreement, then Merchant shall have
<br />the right to terminate this Processing Agreement.
<br />7. CONFIDENTIAL AND PROPRIETARY INFORMATION
<br />a. Protection of Tyler Confidential and Proprietary Information.
<br />Merchant shall not disclose, disseminate, transmit, publish, distribute, make
<br />available, or otherwise convey Tyler Confidential and Proprietary
<br />Information, and Merchant shall not use, make, sell, or otherwise exploit
<br />any such Tyler Confidential and Proprietary Information for any purpose
<br />other than the performance of this Processing Agreement, without Tyler’s
<br />written consent, except: (a) as may be required by law, regulation, judicial,
<br />or administrative process; or (b) as required in litigation pertaining to this
<br />Processing Agreement, provided that Tyler is given advance notice of such
<br />intended disclosure in order to permit it the opportunity to seek a protective
<br />order. Merchant shall ensure that all individuals assigned to perform
<br />services herein shall abide by the terms of this Section 7(a) and shall be
<br />responsible for breaches by such persons.
<br />b. Judicial Proceedings. If Merchant is requested or required (by
<br />oral questions, interrogatories, requests for information or documents in
<br />legal proceedings, subpoena, civil investigative demand, or other similar
<br />process) to disclose any Tyler Confidential and Proprietary Information,
<br />Merchant shall provide Tyler with prompt written notice of such request or
<br />requirement so that Tyler may seek protective orders or other appropriate
<br />remedies and/or waive compliance with the provisions of this Processing
<br />Agreement. If, in the absence of a protective order or other remedy or the
<br />receipt of a waiver by Tyler, Merchant nonetheless is legally compelled to
<br />disclose Tyler Confidential and Proprietary Information to any court or
<br />tribunal or else would stand liable for contempt or suffer other censure or
<br />penalty, Merchant may, without liability herein, disclose to such court or
<br />tribunal only that portion of Tyler Confidential and Proprietary Information
<br />which the court requires to be disclosed, provided that Merchant uses
<br />reasonable efforts to preserve the confidentiality of Tyler Confidential and
<br />Proprietary Information, including, without limitation, by cooperating with
<br />Tyler to obtain an appropriate protective order or other reliable assurance
<br />that confidential treatment shall be accorded Tyler Confidential and
<br />Proprietary Information.
<br />c. Security of User IDs and Passwords. Merchant is solely
<br />responsible for maintaining the confidentiality of its user IDs and passwords
<br />and all activities that occur under Merchant’s user IDs, even if fraudulent or
<br />not authorized by Merchant. Merchant acknowledges the heightened risk
<br />associated with access to its User IDs, passwords, transaction and account
<br />information (collectively, “Account Information”). Merchant represents and
<br />warrants that (i) Merchant will comply with applicable Association Rules and
<br />applicable law, (ii) Merchant will establish policies and procedures to protect
<br />such information in conformity with Association Rules and applicable law,
<br />including the storage and disclosure of such Account Information, (iii)
<br />Merchant will exercise reasonable care to prevent use or disclosure of
<br />Account Information. Merchant, and not Tyler, will be solely responsible for
<br />all activity, including all approvals, Transactions, chargebacks, returns and
<br />refunds processed, using Merchant’s user IDs and passwords. If a forensic
<br />investigation is initiated by a Card Network, Member, Tyler or Tyler’s
<br />Processor, then Merchant agrees to cooperate with such investigation until
<br />it is complete, including, without limitation, by providing logs related to its
<br />User IDs and passwords and Merchant’s compliance with Association
<br />Rules and applicable law.
<br />8. REPRESENTATIONS AND WARRANTIES
<br />a. No Actions, Suits, or Proceedings. There are no actions, suits,
<br />or proceedings, pending or, to the knowledge of Tyler, threatened, that shall
<br />have a material adverse effect on Tyler’s ability to fulfill its obligations
<br />pursuant to or arising from this Processing Agreement.
<br />b. Compliance with Laws. In performing this Processing
<br />Agreement, Tyler shall comply with all applicable material licenses, legal
<br />certifications, or inspections. Tyler and Merchant shall comply in all
<br />material respects with applicable federal, state, and local statutes, laws,
<br />ordinances, rules, and regulations.
<br />c. Ownership. Tyler is a Delaware corporation that is listed for
<br />trading on the New York Stock Exchange.
<br />d. Certain Business Practices. Neither Tyler nor any of its
<br />principals is presently debarred, suspended, proposed for debarment,
<br />declared ineligible, or voluntarily excluded from participating in this
<br />Processing Agreement by any federal department or agency. Tyler further
<br />represents and warrants that it is not listed on any local, state or federal
<br />consolidated list of debarred, suspended, and ineligible contractors and
<br />grantees.
<br />e. Equipment Manufacturer Warranties. Tyler will pass through to
<br />Merchant any applicable manufacturer warranties that apply to Equipment
<br />purchased by Merchant through this Agreement.
<br />f. Disclaimer of Implied Warranties. EXCEPT FOR THE
<br />EXPRESS WARRANTIES PROVIDED IN THIS PROCESSING
<br />AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY
<br />APPLICABLE LAW, TYLER HEREBY DISCLAIMS ALL OTHER
<br />WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR
<br />STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
<br />WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE.
<br />
<br />9. LIMITATION OF LIABILITY
<br />TYLER’S LIABILITY TO MERCHANT FOR DAMAGES ARISING OUT
<br />OF OR IN CONNECTION WITH THIS PROCESSING AGREEMENT,
<br />WHETHER BASED ON A THEORY OF CONTRACT OR TORT,
<br />INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE
<br />LIMITED TO THE TOTAL FEES PAID TO TYLER UNDER THIS
<br />PROCESSING AGREEMENT (NET OF ASSOCIATION
<br />INTERCHANGE, ASSESSMENTS AND FINES) FOR THE TWELVE
<br />MONTHS PRIOR TO THE TIME THE LIABILITY AROSE.
<br />WHILE BOTH PARTIES ACKNOWLEDGE THAT THIS IS AN
<br />AGREEMENT FOR SERVICES TO WHICH THE UNIFORM
<br />COMMERCIAL CODE DOES NOT APPLY, IN NO EVENT SHALL
<br />TYLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR
<br />SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT
<br />LIMITATION, LOST REVENUES OR PROFITS, OR LOSS OF
<br />BUSINESS OR LOSS OF DATA ARISING OUT OF THIS
<br />PROCESSING AGREEMENT, IRRESPECTIVE OF WHETHER THE
<br />PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH
<br />DAMAGE.
<br />10. INDEMNIFICATION
<br />a. Chargebacks and Refunds. Merchant acknowledges that Tyler
<br />has agreed to be responsible for some of Merchant’s obligations to a
<br />Member for Transactions and Association Rules as set forth in the Member
<br />Bank Agreement. Member should debit the Merchant Account for
<br />chargebacks, returns, refunds, assessments, penalties and fines, and in the
<br />event Member assesses any such amounts to Tyler, including any amounts
<br />in excess of the balance of the Merchant Account, Tyler shall invoice the
<br />same to Merchant.
<br />b. Applicable Law and Interpretations: Merchant shall indemnify
<br />and hold harmless Tyler from and against any claim or action related to
<br />Merchant’s violation of applicable law and/or Association Rules including
<br />without limitation any election to apply custom fee structures or customer
<br />surcharges.
<br />c. Intellectual Property.
<br />i. Tyler retains all ownership and copyright interest in and to
<br />any and all intellectual property, computer programs, related
<br />documentation, technology, know how, and processes
<br />developed by Tyler and provided in connection with this
<br />Processing Agreement (collectively, the “Intellectual
<br />Property”),
<br />ii. Notwithstanding any other provision of this Processing
<br />Agreement, if any claim is asserted, or action or proceeding
<br />brought against Merchant that alleges that all or any part of
<br />the Intellectual Property, in the form supplied, or modified by
<br />Tyler, or Merchant’s use thereof, infringes or misappropriates
<br />any United States intellectual property, intangible asset, or
<br />other proprietary right, title, or interest (including, without
<br />limitation, any copyright or patent or any trade secret right,
<br />title, or interest), or violates any other contract, license, grant,
<br />or other proprietary right of any third party, Merchant, upon its
<br />awareness, shall give Tyler prompt written notice thereof.
<br />Docusign Envelope ID: 4032940E-A9F5-4854-9C2A-8D27AC795DE6
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