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Updated 11/6/23
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<br />Tyler shall defend, and hold Merchant harmless against, any
<br />such claim or action with counsel of Tyler’s choice and at
<br />Tyler’s expense and shall indemnify Merchant against any
<br />liability, damages, and costs resulting from such claim.
<br />Without waiving any rights pursuant to sovereign immunity,
<br />Merchant shall cooperate with and may monitor Tyler in the
<br />defense of any claim, action, or proceeding and shall, if
<br />appropriate, make employees available as Tyler may
<br />reasonably request with regard to such defense. This
<br />indemnity does not apply to the extent that such a claim is
<br />attributable to modifications to the Intellectual Property made
<br />by Merchant, or any third party pursuant to Merchant’s
<br />directions, or upon the unauthorized use of the Intellectual
<br />Property by Merchant.
<br />d. If the Intellectual Property becomes the subject of a claim of
<br />infringement or misappropriation of a copyright, patent, or trade secret or
<br />the violation of any other contractual or proprietary right of any third party,
<br />Tyler shall, at its sole cost and expense, select and provide one of the
<br />following remedies, which selection shall be in Tyler’s sole discretion: (a)
<br />promptly replace the Intellectual Property with a compatible, functionally
<br />equivalent, non-infringing system; or (b) promptly modify the Intellectual
<br />Property to make it non-infringing; or (c) promptly procure the right of
<br />Merchant to use the Intellectual Property as intended.
<br />11. TAXES
<br />a. Tax Exempt Status. Merchant is a governmental tax-exempt
<br />entity and shall not be responsible for any taxes for any Licensed Property
<br />or services provided for herein, whether federal or state. The fees paid to
<br />Tyler pursuant to this Processing Agreement are inclusive of any applicable
<br />sales, use, personal property, or other taxes attributable to periods on or
<br />after the Effective Date of this Processing Agreement.
<br />b. Employee Tax Obligations. Each party accepts full and
<br />exclusive liability for the payment of any and all contributions or taxes for
<br />Social Security, Workers’ Compensation Insurance, Unemployment
<br />Insurance, or Retirement Benefits, Pensions, or annuities now or hereafter
<br />imposed pursuant to or arising from any state or federal laws which are
<br />measured by the wages, salaries, or other remuneration pay to persons
<br />employed by such party for work performed under this Processing
<br />Agreement.
<br />12. TERM, SUSPENSION, AND TERMINATION
<br />a. Term. The term of this Processing Agreement (the “Term”) shall
<br />commence on the Effective Date and shall continue in effect for three years
<br />unless otherwise terminated for Cause pursuant to Section 12(b).
<br />Notwithstanding the foregoing, Tyler may elect to cease providing payment
<br />processing services upon the termination or expiration of Tyler’s other
<br />agreement with Client to provide Tyler software or services.
<br />b. Termination for Cause. Either party may terminate this
<br />Processing Agreement for Cause, provided that such party follows the
<br />procedures set forth in this Section(b).
<br />i. For purposes of this Section, “Cause” means either:
<br />A. a material breach of this Processing Agreement,
<br />which has not been cured within ninety (90)
<br />days of the date such party receives written
<br />notice of such breach;
<br />B. the failure by Merchant to timely pay when due
<br />any fees owed to Tyler pursuant to this
<br />Processing Agreement and any delinquent
<br />amounts remain outstanding for a period of thirty
<br />(30) days after Tyler provides written notice of its
<br />intent to terminate for failure to pay;
<br />C. breach of Section 7; or
<br />D. if Tyler becomes insolvent or bankrupt, or is the
<br />subject of any proceedings relating to its
<br />liquidation or insolvency or for the appointment
<br />of a receiver or similar officer for it, has a
<br />receiver of its assets or property appointed or
<br />makes an assignment for the benefit of all or
<br />substantially all of its creditors, or institutes or
<br />causes to be instituted any proceeding in
<br />bankruptcy or reorganization or rearrangement
<br />of its affairs.
<br />ii. No party may terminate this Processing Agreement under
<br />Section 12 b(i)(A) unless it cooperates in good faith with
<br />the alleged breaching party during the cure period and
<br />complies in good faith with the dispute resolution
<br />procedures set forth in Section 13 following such period.
<br />iii. In the event either party terminates this Processing
<br />Agreement pursuant to this Section(b), each party shall
<br />return all products, documentation, confidential information,
<br />and other information disclosed or otherwise delivered to
<br />the other party prior to such termination, all revocable
<br />licenses shall terminate.
<br />c. Survival. The following provisions shall survive after the Term of
<br />this Processing Agreement: 2(c); 3; 4(c); 7; 10; 11; 12; 13; 14; and 15.
<br />13. DISPUTE RESOLUTION
<br />Any dispute arising out of, or relating to, this Processing Agreement
<br />that cannot be resolved within five (5) Business Days shall be referred to
<br />the individual reasonably designated by Merchant and Tyler’s
<br />representative assigned to Merchant’s account (“Intermediary Dispute
<br />Level”). Any dispute that cannot be resolved in ten (10) Business Days at
<br />the Intermediary Dispute Level shall then be referred to Merchant’s chief
<br />executive officer or other individual reasonably designated by Merchant and
<br />Tyler’s applicable division President (“Executive Dispute Level”), at such
<br />time and location reasonably designated by the parties. Any negotiations
<br />pursuant to this Section are confidential and shall be treated as
<br />compromise and settlement negotiations for purposes of the applicable
<br />rules of evidence. For any dispute that the parties are unable to resolve
<br />through informal discussions or negotiations or pursuant to the dispute
<br />resolution and escalation procedures set forth in this Processing
<br />Agreement, the parties shall submit the matter to non-binding mediation
<br />prior to the commencement of any legal proceeding. The foregoing shall
<br />not apply to claims for equitable relief under Section 7.
<br />14. MISCELLANEOUS
<br />a. Assignment. Neither party may assign this Processing
<br />Agreement or any of its respective rights or obligations herein to any third
<br />party without the express written consent of the other party, which consent
<br />shall not be unreasonably withheld.
<br />b. Cumulative Remedies. Except as specifically provided herein,
<br />no remedy made available herein is intended to be exclusive of any other
<br />remedy, and each and every remedy shall be cumulative and shall be in
<br />addition to every other remedy provided herein or available at law or in
<br />equity.
<br />c. Notices. Except as otherwise expressly specified herein, all
<br />notices, requests or other communications shall be in writing and shall be
<br />deemed to have been given if delivered personally or mailed, by certified or
<br />registered mail, postage prepaid, return receipt requested, to the parties at
<br />their respective addresses set forth on the signature page hereto, or at such
<br />other addresses as may be specified in writing by either of the parties. All
<br />notices, requests, or communications shall be deemed effective upon
<br />personal delivery or three (3) days following deposit in the mail.
<br />Notwithstanding the foregoing, notice shall be deemed delivered when
<br />provided in connection with billing or invoicing.
<br />d. Counterparts. This Processing Agreement may be executed in
<br />one or more counterparts, each of which shall be deemed an original, but
<br />all of which together shall constitute one and the same instrument.
<br />e. Waiver. The performance of any obligation required of a party
<br />herein may be waived only by a written waiver signed by the other party,
<br />which waiver shall be effective only with respect to the specific obligation
<br />described therein.
<br />f. Entire Agreement. This Processing Agreement constitutes the
<br />entire understanding and contract between Tyler and Merchant for payment
<br />processing services (as detailed in an Order Form) and supersedes any
<br />and all prior or contemporaneous oral or written representations, contracts
<br />or communications with respect to the subject matter hereof.
<br />g. Amendment. This Processing Agreement shall not be modified,
<br />amended, or in any way altered except by an instrument in writing signed
<br />by the properly delegated authority of each party. All amendments or
<br />modifications of this Processing Agreement shall be binding upon the
<br />parties despite any lack of consideration.
<br />h. Severability of Provisions. In the event any provision hereof is
<br />found invalid or unenforceable pursuant to judicial decree, the remainder of
<br />this Processing Agreement shall remain valid and enforceable according to
<br />its terms.
<br />i. Relationship of Parties. The parties intend that the relationship
<br />between the parties created pursuant to or arising from this Processing
<br />Agreement is that of an independent contractor only. Neither party shall be
<br />Docusign Envelope ID: 4032940E-A9F5-4854-9C2A-8D27AC795DE6
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