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that challenges the ownership of the Data Protection Service, any related
<br />software, materials or documentation. Failure to comply with this provision will
<br />constitute a material breach of this Agreement. Bank has the right to immediately
<br />terminate this Section 38 and Merchant's access to and use of the Data Protection
<br />Service in the event of a challenge by Merchant. No additional rights are granted
<br />by implication, estoppel or otherwise.
<br />(j) Merchant will not: (i) distribute, lease, license, sublicense or otherwise
<br />disseminate the Data Protection Service or any portion of it to any third party; (ii)
<br />modify, enhance, translate, supplement, create derivative works from, reverse
<br />engineer, decompile or otherwise reduce to human -readable form the Data
<br />Protection Service or any portion of it; or (iii) sell, license or otherwise distribute
<br />the Data Protection Service or any portion of it; (iv) make any copies, or permit
<br />any copying, of the Data Protection Service or any portion of it; or (v) use any
<br />portion of the Data Protection Service as a standalone program or in any way
<br />independently from the Data Protection Service. If any portion of the Data
<br />Protection Service contains any copyright notice or any other legend denoting the
<br />proprietary interest of Bank or any third party, Merchant will not remove, alter,
<br />modify, relocate or erase such notice or legend on such item.
<br />(k)Merchant will only use the Data Protection Service for its internal business
<br />purposes in a manner consistent with this Agreement.
<br />(1) Merchant will use only unaltered version(s) of the Data Protection Service and
<br />will not use, operate or combine the Data Protection Service or any related
<br />software, materials or documentation, or any derivative works thereof with other
<br />products, materials or services in a manner inconsistent with the uses
<br />contemplated in this Section 38.
<br />(m) Merchant will promptly notify Bank of a breach of any terms of this Section 38.
<br />38.7 Amendment;Termination.
<br />(a) Unless prohibited by applicable law, Bank may modify this Section 38 by
<br />providing written notice of such modifications to Merchant.
<br />(b) The Data Protection Service being provided under this Section 38 may be
<br />terminated upon thirty days written notice from one party to the other party.
<br />38.8 Data Protection Limited Warranty. Bank provides the following limited
<br />warranty to Merchant with respect to the Data Protection Service: SUBJECT TO
<br />SECTION 38.10, BANK WARRANTS TO MERCHANT THAT THE TOKEN
<br />RETURNED TO MERCHANT AS A RESULT OF USING THE DATA PROTECTION
<br />SERVICE CANNOT BE USED TO INITIATE A SALE TRANSACTION BY AN
<br />UNAUTHORIZED PERSON/ENTITY OUTSIDE OF MERCHANT'S COVERED
<br />SYSTEMS. "Covered Systems" means Merchant's systems or point-of-sale devices
<br />that are using the TransArmor Data Protection Service.
<br />38.9 Exclusive Remedy for Breach of Limited Warranty. Subject to Section 38.10 of
<br />these Special Provisions and the terms of the Agreement (including the damages
<br />cap(s), damages exclusion(s), and other limitations on liability in Section 14 and
<br />Section 38 of the Agreement), Bank will indemnify Merchant for direct damages
<br />resulting from Bank's breach of the Data Protection Service limited warranty in
<br />Section 38.8. For clarity, "direct damages" includes third party claims asserted
<br />against Merchant arising from Bank's breach of the limited warranty in Section 38.8.
<br />THE INDEMNIFICATION IN THIS SECTION 38.9 IS THE SOLE AND EXCLUSIVE
<br />REMEDY, AND BANK'S ENTIRE LIABILITY, FOR BANK'S BREACH OF THE
<br />LIMITED WARRANTY IN SECTION 38.8.
<br />38.10 Exceptions to Limited Warranty and Exclusive Remedy. The limited warranty
<br />in Section 38.8 and the indemnification in Section 38.9 will not apply and will be
<br />voidable at Bank's election, and Bank will have no liability of any kind arising from
<br />the limited warranty if Merchant (a) is not receiving authorization and settlement
<br />services from Bank under this Agreement, (b) is not in compliance with all terms of
<br />this Agreement and any other agreement relating to payment forms eligible for the
<br />Data Protection Service, (c) uses the Data Protection Service in a manner not
<br />contemplated by, or in violation of, this Agreement, (d) is grossly negligent, or (e)
<br />engages in intentional misconduct.
<br />38.11 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION
<br />38.8 AND IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE
<br />AGREEMENT, BANK AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL
<br />WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR IMPOSED BY
<br />STATUTE OR OTHER LAW, THAT ARISE OUT OF OR RELATE TO THE SPECIAL
<br />PROVISIONS OF THIS SECTION, THE DATA PROTECTION SERVICE, OR ANY
<br />ASPECT OF THE DATA PROTECTION SERVICE, INCLUDING: (a) WARRANTIES
<br />OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (b)
<br />WARRANTIES OF NON -INFRINGEMENT OR NON-INTERFERENCE, AND (c)
<br />ANY WARRANTY THAT THE DATA PROTECTION SERVICE (OR ANY ASPECT
<br />OF THE DATA PROTECTION SERVICE) WILL (i) MEET MERCHANT'S
<br />REQUIREMENTS, (ii) OPERATE ACCORDING TO MERCHANT'S EXPEC-
<br />TATIONS, (iii) DETECT EVERY VULNERABILITY ON MERCHANTS SYSTEMS,
<br />(iv) GUARANTEE COMPLIANCE WITH APPLICABLE LAW, ASSOCIATION
<br />RULES, OR APPLICABLE STANDARDS (INCLUDING PCI DSS), (v) PREVENT A
<br />DATA BREACH OR COMPROMISE OF DATA SECURITY, (vi) PROVIDE
<br />ACCURATE OR COMPLETE DATA, OR (vii) OPERATE UNINTERRUPTED OR
<br />ERROR FREE.
<br />38.12 Third Party Beneficiary. Bank has been granted the right by First Data Merchant
<br />Services LLC ("FDMS") to sublicense the Data Protection Service and the Data
<br />Protection Service Marks to Merchant. As such, FDMS (including its successors or
<br />assigns) is a third -party beneficiary of this Section 38, with the right to receive all
<br />benefits that Bank receives under this Section 38 and the right to initiate
<br />enforcement of the terms of this Section 38, including applicable terms of this
<br />Agreement, against Merchant at FDMS' sole discretion.
<br />39. AMERICAN EXPRESS OPTBLUE TERMS
<br />39.1 if Merchant elects to utilize the American Express OptBlue Service, the terms and
<br />conditions of this Section 39 shall apply.
<br />39.2 Arbitration Agreement for Claims Involving American Express.
<br />(a) Definitions. For purposes of this Section 39 only, (i) "American Express"
<br />includes its Affiliates, licensees, predecessors, successors, or assigns, any
<br />purchasers of any receivables, and all agents, directors, and representatives of
<br />any of the foregoing, (ii) "You" includes your Affiliates, licensees, predecessors,
<br />successors, or assigns, any purchasers of any receivables and all agents, directors,
<br />and representatives of any of the foregoing, and (iii) "Claim" means any
<br />allegation of an entitlement to relief, whether damages, injunctive or any other
<br />form of relief, against American Express or any other entity (including you or
<br />us) that American Express has the right to join, including any allegation
<br />involving a transaction using an American Express product or network or
<br />regarding an American Express policy or procedure.
<br />(b) Arbitration Agreement for Claims Involving American Express. In the
<br />event that you or we are not able to resolve a Claim, this Section 39 explains
<br />how Claims may be resolved through arbitration. You or we or American Express
<br />may elect to resolve any Claim by binding individual arbitration. Claims will be
<br />decided by a neutral arbitrator. If arbitration is elected by any Party to resolve a
<br />Claim, the Parties understand and agree that neither you nor we nor American
<br />Express will have the right to litigate or have a jury trial on that Claim in court.
<br />Further, you, we, and American Express understand and agree that the Parties
<br />will not have the right to participate in a class action or in a representative
<br />capacity or in a group of persons alleged to be similarly situated pertaining to
<br />any Claim subject to arbitration under this OptBlue Schedule. Arbitrator's
<br />decisions are final and binding, with very limited review by a court, and once
<br />confirmed by a court of competent jurisdiction, an arbitrator's final decision on
<br />a Claim is generally enforceable as a court order. Other rights you, we, or
<br />American Express would have in court may also not be available in arbitration.
<br />(c) Initiation of Arbitration. Claims may be referred to either JAMS or AAA, as
<br />selected by the Party electing arbitration. Claims will be resolved pursuant to
<br />this Section 39 and the selected arbitration organization's rules in effect when
<br />the Claim is filed, except where those rules conflict with this OptBlue Schedule.
<br />Contact JAMS or AAA to begin an arbitration or for other information. Claims
<br />may be referred to another arbitration organization if all Parties agree in writing,
<br />if American Express or we, on one hand, selects the organization and you, on
<br />the other hand, select the other within 30 days thereafter or if an arbitrator is
<br />appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16
<br />(FAA). Any arbitration hearing will take place in New York, NY.
<br />(d) Limitations on Arbitration. If any Party elects to resolve a Claim by
<br />arbitration, that Claim will be arbitrated on an individual basis. No Claim is to be
<br />arbitrated on a class or purported representative basis or on behalf of the general
<br />public or other persons allegedly similarly situated. The arbitrator's authority is
<br />limited to Claims between you, us, and American Express. An arbitration award
<br />and any judgment confirming it will apply only to the specific case brought by
<br />you, us or American Express and cannot be used in any other case except to
<br />enforce the award as between you, us and American Express. This prohibition is
<br />intended to, and does, preclude you from participating in any action by any trade
<br />association or other organization against American Express. Notwithstanding
<br />any other provision in this Section 39, if any portion of these Limitations on
<br />Arbitration set forth in this Section 39 (ii) is found invalid or unenforceable, then
<br />the entire Section 39 (other than this sentence) will not apply, except that you,
<br />we, and American Express do not waive the right to appeal that decision.
<br />(e) Previously Filed Claims/No Waiver. You, we, or American Express may elect
<br />to arbitrate any Claim that has been filed in court at any time before trial has
<br />begun or final judgment has been entered on the Claim. You, we, or American
<br />Express may choose to delay enforcing or to not exercise rights under this Section
<br />39, including the right to elect to arbitrate a claim, without waiving the right to
<br />exercise or enforce those rights on any other occasion. For the avoidance of any
<br />confusion, and not to limit its scope, this Section 39 applies to any class-action
<br />lawsuit relating to the "Honor All Cards," "non-discrimination," or "no steering"
<br />provisions of the American Express Merchant Regulations, or any similar
<br />provisions of any prior American Express Card acceptance agreement, that was
<br />filed against American Express prior to the effective date of the Agreement to the
<br />extent that such claims are not already subject to arbitration pursuant to a prior
<br />agreement between Merchant and American Express.
<br />(0 Arbitrator's Authority. The arbitrator will have the power and authority to
<br />award any relief that would have been available in court and that is authorized
<br />TD2008(ia)
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<br />August 2017 Manual T&C - CAP # 40233
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