|
delivered or services rendered to the cardholder by the MERCHANT; and (c) it does not involve any element of credit for any
<br />other purpose.
<br />11.4 MERCHANT agrees to indemnify and hold harmless TMS, BANK, SPONSORS, and ASSOCIATIONS, including the
<br />ASSOCIATIONS' contractors, from and against any claims, demands, or judgments, made or recovered against it, arising out of
<br />any misrepresentation or breach by MERCHANT of the terms of this AGREEMENT or arising from any act or omission by
<br />MERCHANT which violates any LAWS, the RULES, or the rights of another person or otherwise injures any third party. TMS,
<br />BANK, SPONSORS, or the ASSOCIATIONS may defend on its own any such claims or demands or request MERCHANT to take
<br />up such defense. In either event MERCHANT will further indemnify TMS, BANK, SPONSORS, and the ASSOCIATIONS for
<br />reasonable attorney fees or any other necessary expenses incurred by TMS and BANK by reason of such defense.
<br />11.5 MERCHANT shall be solely responsible for losses and CHARGEBACKS incurred as a result of, or arising out of, any fraud
<br />including LAUNDERING, negligence, or willful misconduct on the part of MERCHANT, or MERCHANT's employee(s) or agent(s).
<br />11.6 MERCHANT is responsible for any electronic virus or viruses that may be encountered and is responsible for routinely scanning
<br />its computers and diskettes using a reliable virus product to detect and remove any viruses found.
<br />12. NOTICES:
<br />12.1 All notices required under this AGREEMENT from MERCHANT shall be written paper notices effective, unless otherwise stated in
<br />AGREEMENT, upon the earlier of actual receipt thereof or the third (3rd) business day following such notices being deposited
<br />postage prepaid in the United States Postal System.
<br />12.2 All written paper notices shall be sent to the following addresses, which may be changed by any PARTY by designating an
<br />alternate address, effective upon fourteen (14) days notice of such change:
<br />If to TMS: If to MERCHANT:
<br />TSYS Merchant Solutions, LLC At the address set out in the Merchant Application or such
<br />Attention: Legal Department alternative address as designated in writing by MERCHANT.
<br />1601 Dodge Street, 23E
<br />Omaha, NE 68102-1637
<br />If to BANK:
<br />First National Bank of Omaha
<br />Attention: Acquirer Legal & Risk Department
<br />1620 Dodge Street, Stop 3395
<br />Omaha, NE 68197
<br />12.3 MERCHANT consents to receiving electronically rather than in paper form all notices, disclosures and other documents
<br />("DOCUMENTS") which are to be provided to MERCHANT under this AGREEMENT. MERCHANT will be notified that a
<br />DOCUMENT is available at TMS's web site with a link to that specific page of the web site containing the DOCUMENT.
<br />MERCHANT agrees that such notification will be sent to MERCHANT at the e-mail address provided as part of the Merchant
<br />Application. Any DOCUMENT sent to MERCHANT electronically will be maintained on the website for not less than six (6)
<br />months from the date of its posting on the web site. MERCHANT understands and acknowledges that access to the Internet, e-
<br />mail and the worldwide web are required for MERCHANT to access a DOCUMENT electronically and MERCHANT confirms that
<br />MERCHANT has such access. MERCHANT understands that there are costs related to access DOCUMENTS electronically and
<br />MERCHANT agrees that MERCHANT is responsible for these related access costs. Without advance notice to MERCHANT and
<br />at any time, electronic DOCUMENTS may no longer be sent to MERCHANT, in which case a paper copy of the DOCUMENT will
<br />be sent to MERCHANT pursuant to Sections 12.1 and 12.2.
<br />13. MISCELLANEOUS:
<br />13.1 Assignment. Except as expressly provided in this AGREEMENT, MERCHANT may not assign its rights or delegate its
<br />responsibilities under this AGREEMENT without the prior written consent of TMS and BANK. TMS and BANK may each assign
<br />its rights or delegate duties under this AGREEMENT without the prior consent of MERCHANT.
<br />13.2 Governing Law and Forum. The PARTIES acknowledge and agree that this AGREEMENT and any Guaranty contained herein
<br />was, and shall be deemed to have been, made and delivered in Douglas County, Nebraska. The laws of the State of Nebraska,
<br />without giving effect to its conflicts of law principles, shall govern all matters (whether in contract, statute, tort or however
<br />characterized) arising out of or relating to this AGREEMENT and any Guaranty contained herein, including, without limitation, the
<br />validity, interpretation, construction, performance and enforcement of the AGREEMENT and Guaranty. The PARTIES agree that,
<br />in the event of any dispute regarding, arising out of or relating to this AGREEMENT or any Guaranty contained herein, the courts
<br />of the State of Nebraska shall have and be vested with personal jurisdiction over the PARTIES. The PARTIES further agree that
<br />any and all actions, claims, suits or proceedings arising out of or relating (directly or indirectly) to this AGREEMENT or any
<br />Guaranty contained herein shall be filed and litigated only in courts located in Douglas County, Nebraska, and such courts shall
<br />have exclusive jurisdiction over any action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this
<br />AGREEMENT or any Guaranty contained herein. If MERCHANT brings legal action against TMS or BANK for any reason,
<br />MERCHANT shall commence the action within one (1) year of the date the error or the incident giving rise to such action
<br />occurred.
<br />13.3 Waiver. No delay or failure by either PARTY to exercise any right under AGREEMENT and no partial or single exercise of that
<br />right shall constitute a waiver of that right or any other right, unless expressly provided for in AGREEMENT.
<br />13.4 Force Maieure. TMS and BANK are not liable or responsible for any failure or delay in performance caused by any Act of God,
<br />strikes, flood, fire, war, public enemy, electrical or equipment failure, failures by third parties, or other events beyond its control.
<br />13.5 Entire Agreement. This AGREEMENT constitutes the entire understandings of the PARTIES as to the subject matter contained
<br />herein and supersedes all prior contracts, agreements, and negotiations between the PARTIES whether verbal or written.
<br />13.6 Costs. Neither PARTY shall be responsible for the costs incurred by the other in negotiating or implementing this AGREEMENT.
<br />201108 MTPA Terms and Conditions Page 8 of 35 CONFIDENTIAL
|