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9.2 MERCHANT shall be responsible for obtaining and contracting with any third party service provider(s), payment engine(s),
<br />payment gateway(s), and any other Internet service provider(s) and/or system integrator(s). MERCHANT shall ensure that said
<br />third parties appropriately format and transmit SALES to TMS and BANK in accordance with the then current RULES and
<br />requirements of TMS, BANK, and ASSOCIATIONS. If MERCHANT is using a Member Service Provider's terminal or software
<br />application, (i.e. dial terminal or equivalent sales capture solution), and the Member Service Provider is providing the customer
<br />service, then such Member Service Provider is a separate entity and is not an agent of TMS or BANK. MERCHANT understands
<br />the AGREEMENT is between TMS, BANK, and MERCHANT. Disputes involving a Member Service Provider shall be dealt with
<br />independently from TMS and BANK. If disputes are unresolved and relate to SERVICES provided under the AGREEMENT,
<br />MERCHANT shall notify TMS at the address set out in the AGREEMENT. MERCHANT must pay TMS and BANK regardless of
<br />any disputes it has with any Member Service Provider. If MERCHANT elects to use the terminal or software of third party
<br />providers to capture and transmit SALES to TMS and BANK, MERCHANT must disclose the relationship to TMS and
<br />MERCHANT assumes full responsibility and liability for such third party provider's failure to comply with the RULES. The third
<br />party provider may be the source for information regarding SALES, authorizations and CHARGEBACKS that may be needed by
<br />TMS and BANK. Certain CHARGEBACKS require authorization information to reverse. MERCHANT is responsible for obtaining
<br />this information from such third party provider. Neither TMS nor BANK are liable for SALES they did not receive. MERCHANT
<br />understands that in the event MERCHANT rents TMS's terminals, the communications vendor is not responsible for losses
<br />arising from the SALES processed using the vendor's service.
<br />9.3 MERCHANT agrees that neither TMS nor BANK is responsible for any services or equipment provided by any third party with
<br />which MERCHANT has contracted. MERCHANT agrees that TMS and BANK are not responsible for and are not able to provide
<br />customer service for the point of sale ("POS") devices installed by and/or operated by any third party with which MERCHANT has
<br />contracted. MERCHANT should contact the third party for service of this equipment. MERCHANT shall not allow any third party
<br />to install, remove, or modify any terminal software application of TMS without the express written consent of TMS. MERCHANT
<br />agrees TMS and BANK can only process SALES received by TMS and BANK, and any third party is responsible for ensuring
<br />SALES are formatted and transmitted to TMS and BANK in accordance with the then current requirements of TMS, BANK, and
<br />ASSOCIATIONS. TMS and BANK may increase FEES if a third party presents SALES transactions not in accordance with the
<br />then current ASSOCIATIONS' requirements. MERCHANT assumes full responsibility and liability for DISCOUNT rate tier
<br />downgrades caused by any third party. MERCHANT assumes full responsibility and liability for third party providers' failure to
<br />comply with the RULES. MERCHANT is responsible for obtaining from the third party provider any information needed by TMS
<br />and BANK.
<br />9.4 MERCHANT shall assume full liability and shall indemnify and hold TMS, BANK, and ASSOCIATIONS harmless for: (i) the
<br />actions and/or inactions of any third party with which MERCHANT has contracted or (ii) the failure of any third party with which
<br />MERCHANT has contracted to comply with the LAWS or RULES.
<br />10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES:
<br />10.1 MERCHANT's rights and remedies hereunder are exclusive and in lieu of all other rights and remedies. TMS and BANK shall not
<br />otherwise be liable for any error, omission, delay, computer virus, loss of data or records or disclosure of confidential information
<br />which may occur as a result of, or in any way be connected with, the rendering of SERVICES hereunder. TMS and BANK shall
<br />not be liable for any services or products of third parties. In any event, TMS's and BANK's liability to MERCHANT, whether
<br />arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of the
<br />direct loss to MERCHANT or an amount equal to the processing portion of the DISCOUNT paid to TMS by MERCHANT in the
<br />month prior to the incident giving rise to liability. In no event shall ASSOCIATIONS, or the ASSOCIATIONS' contractors be liable
<br />for losses, damages, or liabilities whether in contract, tort (including negligence), strict liability or under any other theory incurred
<br />by MERCHANT, MERCHANT's customers, or any other person or entity arising under this AGREEMENT. IN NO EVENT SHALL
<br />TMS, BANK, THE ASSOCIATIONS, OR THE ASSOCIATIONS' CONTRACTORS BE LIABLE FOR SPECIAL, INCIDENTAL,
<br />INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUPTION OR LOSS OF USE, DATA,
<br />VIRUSES, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR TMS
<br />AND BANK WERE ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY
<br />HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
<br />10.2 THE SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE
<br />DISCLAIMED BY TMS, BANK, ASSOCIATIONS, AND ASSOCIATIONS' CONTRACTORS, INCLUDING BUT NOT LIMITED TO,
<br />THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A
<br />PARTICULAR PURPOSE. TMS AND BANK ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR
<br />OMISSIONS IN THE CONTENT. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISIONS OF THE
<br />UNIFORM COMMERCIAL CODE SHALL NOT APPLY.
<br />11. WARRANTIES AND INDEMNITIES:
<br />11.1 MERCHANT understands that TMS and BANK merely provide processing services for SALES or SERVICES and is neither a
<br />partner in MERCHANT's business operations nor a guarantor of the receipt by MERCHANT of the proceeds of SALES or
<br />SERVICES. Furthermore, TMS and BANK do not guarantee that SALES or SERVICES will not be subject to CHARGEBACKS
<br />11.2 MERCHANT warrants there is no action, suit or proceeding pending or to MERCHANT's knowledge threatened, which, if decided
<br />adversely, would impair MERCHANT's ability to carry on MERCHANT's business substantially as now conducted or which would
<br />adversely affect MERCHANT's financial condition or operations. MERCHANT warrants that it, or its principals or sales agents
<br />have not been terminated from depositing SALES with any other member of the ASSOCIATIONS, have never been placed on the
<br />MasterCard MATCH system, or on the Combined Terminated Merchant File except as disclosed in writing to TMS and BANK.
<br />11.3 MERCHANT warrants that at the time of depositing SALES for processing: (i) it has the right to assign such SALES to BANK and
<br />does by this reference assign all its rights, title, and interest to payment for such SALES to BANK so that TMS and BANK may
<br />process SALES under the AGREEMENT; (ii) it has no knowledge of any fact that would impair the collectability of the SALES;
<br />and (iii) that the SALES represent a valid obligation of the cardholder: (a) in the amount indicated; (b) for merchandise sold and
<br />201108 MTPA Terms and Conditions Page 7 of 35 CONFIDENTIAL
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