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33. WHOLE AGREEMENT; WAIVER; SEVERABILITY,
<br />RELATIONSHIP, CUMULATIVE RIGHTS AND REMEDIES,
<br />HEADINGS, COUNTERPARTS AND RULES OF CONSTRUCTION
<br />33.1 This Agreement represents the entire understanding between the parties with respect
<br />to the matters contained herein and supersedes any prior agreements between the
<br />parties with respect to such matters. You agree that in entering into this Agreement
<br />you have not relied on any statement of us or our representatives.
<br />33.2 No term or condition of this Agreement may be waived except pursuant to a written
<br />waiver executed by the party against whom such waiver is sought to be enforced. A
<br />party's waiver of a breach of any term or condition of this Agreement shall not be
<br />deemed a waiver of any subsequent breach of the same or another term or condition.
<br />33.3 Should any provision of this Agreement be determined to be invalid or unenforceable
<br />under Applicable Law or Card Organization Rules, such determination shall not
<br />affect the validity or enforceability of any other provision of this Agreement, You
<br />acknowledge that we can and will replace any invalid or unenforceable provision
<br />with a valid, enforceable provision that most closely approximates the intent and
<br />economic effect of the invalid or unenforceable provision.
<br />33.4 It is understood and agreed that the relationship of the parties is that of independent
<br />contractors, and nothing in this Agreement may be construed as constituting a
<br />partnership, joint venture or agency between us and you.
<br />33.5 All of our rights and remedies provided for in this Agreement shall be cumulative
<br />and in addition to, and not in lieu of, any other remedies available to us at law, in
<br />equity or otherwise.
<br />33.6 This Agreement may be executed in counterparts, each of which shall be deemed an
<br />original, but all of which, when taken together, shall constitute one original
<br />document.
<br />34. AMENDMENT
<br />34.1 We may amend this Agreement at any time, and from time to time, upon not less
<br />than 5 days prior written notice to you. Notwithstanding the foregoing, in the event
<br />the terms of this Agreement must be amended pursuant to a change required by the
<br />Card Organization Rules or Applicable Law, such amendment shall be effective
<br />immediately. Your continued submission of Transactions to us following any
<br />amendment of this Agreement shall be deemed to constitute your acceptance of such
<br />amendment.
<br />34.2 Notwithstanding Section 34.1, we may at any time modify this Agreement in
<br />accordance with Section 10.5 or to reflect changes in applicable law, the Card
<br />Organization Rules or security procedures and your right of termination shall not
<br />arise in such circumstances.
<br />34.3 You May not amend this Agreement.
<br />35. THIRD PARTY BENEFICIARIES
<br />35.1 Our Affiliates and any Persons we use in providing the Services are third party
<br />beneficiaries of this Agreement and each of them may enforce its provisions as if
<br />they are a party to it. The rights of the parties to rescind or agree to any variations,
<br />waiver or settlement under this Agreement are not subject to the consent of any
<br />Person.
<br />35.2 Except as expressly provided in this Agreement, a person who is not a party to this
<br />Agreement shall have no rights or remedies under this Agreement.
<br />36. 6050W OF THE INTERNAL REVENUE CODE
<br />36.1 Under Section 6050W of the Internal Revenue Code, you will receive a Form 1099-
<br />K reporting the gross dollar amount of card transactions processed through your
<br />merchant account with us in each year.
<br />36.2 Amounts reportable under Section 6050W are subject to backup withholding
<br />requirements. We will be required to perform backup withholding by deducting and
<br />withholding income tax from reportable transactions if (a) you fail to provide your
<br />taxpayer identification number (TIN) to us, or (b) if the IRS notifies us that the TIN
<br />(when matched with the name) provided by you is incorrect. Accordingly, to avoid
<br />backup withholding, it is very important that you provide us with the correct name
<br />and TIN that you use when filing your tax return that includes the transactions for
<br />your business.
<br />37. FORCE MAJEURE
<br />37.1 Neither party shall be liable for delays in processing or other nonperformance caused
<br />by such events as fires, telecommunications failures, utility failures, power failures,
<br />equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our
<br />vendors or suppliers, acts of God, or other causes over which the respective Party has
<br />no reasonable control, provided that nothing in this sentence shall affect or excuse
<br />your liabilities and obligations for compliance with Card Organization Rules,
<br />Chargebacks, refunds, or unfulfilled products and services.
<br />38. SPECIAL PROVISIONS TRANSARMOR
<br />REGARDING DATA PROTECTION SERVICE
<br />("DATA PROTECTION SERVICE")
<br />38.1 If Merchant elects to utilize the Data Protection Service, the terms and conditions of
<br />this Section 38 shall apply.
<br />38.2 The Data Protection Service provided, transactions processed and other matters
<br />contemplated under this Section 38 are subject to the rest of this Agreement, as
<br />applicable, except to the extent the terms of this Section 38 directly conflict with
<br />another provision of this Agreement, in which case the terms of this Section 38 will
<br />control.
<br />38.3 Definitions. For purposes of this Section 38 only, the capitalized terms used in this
<br />Section 38 shall have the meaning given as defined in this Section 38, and if not
<br />defined in this Section 38, as defined elsewhere in this Agreement.
<br />38.4 Grant of License. Bank grants to Merchant a non -transferable, non -assignable,
<br />non-exclusive, revocable sub -license during the term of this Section 38 to use the
<br />Data Protection Service and the Data Protection Service Marks (as identified in the
<br />Data Protection Rules and Procedures) in the United States, excluding any United
<br />States territories or possessions, in accordance with this Section 38, including
<br />without limitation the Data Protection Rules and Procedures. Any rights with respect
<br />to the Data Protection Service not expressly granted by Bank in this Section 38 are
<br />withheld.
<br />38.5 Services. The Data Protection Service applies only to Card transactions sent from
<br />Merchant to Bank or its third party providers for authorization and interchange
<br />settlement pursuant to the Agreement, and specifically excludes electronic check
<br />transactions, closed-loop gift card transactions, STAR contactless transactions read
<br />in contactless mode, Wright Express Transactions, Voyager Transactions, and other
<br />Card types that are not capable of being Tokenized. Bank or its third party providers
<br />will provide an encryption key to Merchant to be used to encrypt (make unreadable)
<br />Card data during transport of the authorization request from Merchant's point of
<br />sale to systems of Bank. During the period when the transaction is being transmitted
<br />to Bank or its third party providers for authorization processing, all historical
<br />transaction data, including Card number and full magnetic stripe data (track data
<br />and expiration date), will be encrypted. Bank or its third party providers will then
<br />generate or retrieve a unique, randomly generated token assigned to the Card
<br />number that will be returned to Merchant in the authorization response ("Token").
<br />38.6 Responsibilities of Merchant. Merchant is responsible to comply with the
<br />following regarding Merchant's use of the Data Protection Service:
<br />(a) Merchant is required to comply with the Card Network Rules, including taking
<br />all steps required to comply with the Payment Card Industry Data Security
<br />Standards ("PCI DSS"). Merchant must ensure that all third parties and software
<br />use by Merchant in connection with [Merchant's] payment processing is
<br />compliant with PCI DSS. Use of the Data Protection Service will not cause
<br />Merchant to be compliant or eliminate Merchant's obligations to comply with
<br />PCI DSS or any other Card Network Rule. Merchant must demonstrate and
<br />maintain Merchant's current PCI DSS compliance certification. Compliance must
<br />be validated either by a Qualified Security Assessor with corresponding Report on
<br />Compliance or by successful completion of the applicable PC1 DSS Self -
<br />Assessment Questionnaire or Report on Compliance, as applicable, and if
<br />applicable to[Merchant's business, passing quarterly network scans performed
<br />by an Approved Scan Vendor, all in accordance with Association Rules and PCI
<br />DSS.
<br />(b)Use of the Data Protection Service is not a guarantee against an unauthorized
<br />breach of Merchant's systems or point-of-sale devices (collectively, "Merchant's
<br />Systems").
<br />(c) Merchant must deploy the Data Protection Service (including implementing any
<br />upgrades to such service within a commercially reasonable period of time after
<br />receipt of such upgrades) throughout Merchant's Systems, including replacing
<br />existing Card numbers on Merchant's Systems with Tokens. Full Card numbers
<br />must never be retained, whether in electronic form or hard copy.
<br />(d)Merchant must use the Token in lieu of the Card number for ALL activities
<br />subsequent to receipt of the authorization response associated with the
<br />transaction, including without limitation, settlement processing, retrieval
<br />processing, chargeback and adjustment processing and transaction reviews.
<br />(e) Any point of sale device, gateway and/or value added reseller "VAR" use by
<br />Merchant in connection with the Data Protection Service must be certified for
<br />use with the Data Protection Service.
<br />(f) If Merchant sends or receives batch files containing completed Card transaction
<br />information to/from Bank, Merchant must use the service provided by Bank or its
<br />third party providers to enable such files to contain only Tokens or truncated
<br />information.
<br />(g) Merchant must use truncated report viewing and data extract creation within
<br />reporting tools provided by Bank.
<br />(h) Merchant is required to follow rules or procedures Bank may provide to Merchant
<br />from time to time related to Merchant's use of the Data Protection Service ("Data
<br />Protection Rules and Procedures"). Bank will provide Merchant with advance
<br />written notice of any such rules or procedures or changes to such rules or
<br />procedures.
<br />(i) Merchant has no right, title or interest in or to the Data Protection Service, any
<br />related software, materials or documentation, or any derivative works thereof,
<br />and nothing in this Agreement assigns or transfers any such right, title or interest
<br />to Merchant. Merchant shall not take any action inconsistent with the stated title
<br />and ownership in this Section 38. Merchant will not file any action, in any forum,
<br />TD2008(ia)
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<br />August 2017 Manual T&C - CAP # 40233
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