|
16. Except as expressly provided herein, MERCHANT may not assign its rights or delegate its responsibilities regarding rental
<br />EQUIPMENT under this EQUIPMENT AGREEMENT without the prior written consent of TMS, which will not be unreasonably
<br />withheld.
<br />17. The PARTIES acknowledge and agree that this EQUIPMENT AGREEMENT was, and shall be deemed to have been, made and
<br />delivered in Douglas County, Nebraska. The laws of the State of Nebraska, without giving effect to its conflicts of law principles,
<br />shall govern all matters (whether in contract, statute, tort or however characterized) arising out of or relating to this EQUIPMENT
<br />AGREEMENT, including, without limitation, the validity, interpretation, construction, performance and enforcement of the
<br />EQUIPMENT AGREEMENT. The PARTIES agree that, in the event of any dispute regarding, arising out of or relating to this
<br />EQUIPMENT AGREEMENT, the courts of the State of Nebraska shall have and be vested with personal jurisdiction over the
<br />PARTIES. The PARTIES further agree that any and all actions, claims, suits or proceedings arising out of or relating (directly or
<br />indirectly) to this EQUIPMENT AGREEMENT shall be filed and litigated only in courts located in Douglas County, Nebraska, and
<br />such courts shall have exclusive jurisdiction over any action, claims, suit or proceeding arising out of or relating (directly or
<br />indirectly) to this EQUIPMENT AGREEMENT. If MERCHANT brings legal action against TMS for any reason, MERCHANT shall
<br />commence the action within one (1) year of the date the error or the incident giving rise to such action occurred.
<br />18. No delay or failure by either PARTY to exercise any right under EQUIPMENT AGREEMENT, and no partial or single exercise of
<br />that right, shall constitute a waiver of fact or any other right, unless expressly provided herein.
<br />19. Neither PARTY shall be responsible for the costs incurred by the other for negotiating or implementing this EQUIPMENT
<br />AGREEMENT and MERCHANT shall be responsible for installation of the EQUIPMENT.
<br />20. The obligations of all PARTIES hereto incurred prior to the effective date of termination of EQUIPMENT AGREEMENT shall
<br />survive such termination.
<br />21. In the event that any portion of EQUIPMENT AGREEMENT shall be held invalid or unenforceable for any reason, it is agreed that
<br />any invalidity or unenforceability shall not affect the remainder of the same and the remaining provisions shall remain in full force
<br />and effect, and any court of competent jurisdiction may so modify any objectionable provision of the same so as to render it valid,
<br />reasonable and enforceable.
<br />22. This EQUIPMENT AGREEMENT may only be amended or modified by a subsequent written agreement by and between the
<br />PARTIES hereto.
<br />23, MERCHANT hereby represents that the entering into of this EQUIPMENT AGREEMENT has been duly authorized by
<br />MERCHANT and that this EQUIPMENT AGREEMENT constitutes a legal, valid and binding obligation of MERCHANT, and is
<br />enforceable against MERCHANT in accordance with its terms.
<br />24. This EQUIPMENT AGREEMENT constitutes the entire understandings of the PARTIES as to the subject matter contained herein
<br />and supersedes all prior contracts, agreements and negotiations whether oral or written.
<br />TMS CARD COMPROMISE ASSISTANCE PLAN AGREEMENT
<br />Important Note: BANK is not a party to the following agreement. MERCHANT acknowledges and agrees that BANK and its
<br />affiliates are in no way responsible for the actions, inactions, performance or nonperformance of TMS, or for disputes
<br />or resolving disputes of an kind arising from this agreement.
<br />Card Compromise Assistance Plan
<br />This Card Compromise Assistance Plan ("CCAP") sets forth the terms and conditions by which TMS will assist MERCHANT for certain
<br />losses related to a Data Security Event. TMS's obligations to MERCHANT under this CCAP do not constitute the issuance of a policy,
<br />certificate, or contract of insurance between TMS and MERCHANT. TMS has chosen to obtain insurance, from a licensed insurance
<br />broker, to support TMS's contractual obligations to MERCHANT under this CCAP. Words and phrases that appear in boldface are
<br />defined as above or in Clause II or elsewhere in this CCAP. In the event of any conflict between this CCAP and any other written
<br />agreement between TMS and MERCHANT (including but not limited to the Merchant Transaction Processing Agreement), the terms of
<br />this CCAP shall control only with respect to matters addressed in this CCAP. Both TMS and MERCHANT agree that this CCAP is
<br />offered solely by TMS; and not First National Bank of Omaha ("BANK"). BANK does not have any liability or responsibility for the
<br />CCAP.
<br />SCOPE OF AGREEMENT FOR DATA SECURITY EVENT EXPENSES
<br />TMS shall pay Merchant for all reasonable Security Event Expenses and Post Event Services Expenses resulting from a Data
<br />Security Event first discovered by MERCHANT during the CCAP and reported to TMS within the Notice Period.
<br />DEFINITIONS
<br />A. ADCR Fines means amounts contractually assessed against MERCHANT either directly by a card association, or indirectly
<br />through a financial institution who has sponsored MERCHANT into the Card Associations for Bank Card processing, to cover partial
<br />collection of losses experienced by a Bank Card issuer as a result of a data security event, including the Account Data Compromise
<br />Recovery ("ADCR") process and similar processes.
<br />B. Bank Card means a financial transaction card, including a debit card, credit card or prepaid card, issued by a Card Association
<br />or a financial institution as a member of a Card Association.
<br />C. Cardholder means a natural person or entity to which a Bank Card has been issued.
<br />D. Cardholder Information means the data contained on a Bank Card, or otherwise provided to MERCHANT, that is required by
<br />the Card Association or MERCHANT in order to process, approve and/or settle a Bank Card transaction.
<br />E. Card Association means each of Visa International, MasterCard Worldwide, Discover Financial Services, JCB, American
<br />Express and any similar credit or debit card association that is a participating organization of the PCI Security Standards Council.
<br />201108 MTPA Terms and Conditions Page 23 of 35 CONFIDENTIAL
|