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herein, (2) any actions or omissions oJProcessor with respect to these Products and
<br />Services, or (3) any claims or disputes arising out ofthe foregoing.
<br />27.1 If Merchant elects to receive any of the ancillary Products and Services listed on
<br />the Merchant Application (including but not limited to the Guardian Suite (and its related
<br />products), Payment Acceptance Applications (WebPASS, Multi -PASS, and/or Hosted
<br />Payments), and TmnsLink Insights either in various packages or on a product by product
<br />basis, Merchant agrees to the following terms applicable to the relevant software licenses
<br />(collectively, the "Licensed Software"). Use of the Licensed Software is limited to
<br />Merchant's internal business purposes. Title to and ownership of the Licensed Software
<br />remains with Processor and its suppliers. Merchant may not (a) alter or modify the Licensed
<br />Software, (b) reverse engineer, decompile, disassemble, or in any way attempt to derive the
<br />source code for the Licensed Software, or (c) transfer the Licensed Software to any third
<br />party or make the Licensed Software available to any third party as part of any time-sharing
<br />or service bureau arrangement. Merchant will not export or re-export the Licensed Software
<br />without the appropriate United States or foreign government licenses. All express and
<br />implied warranties regarding the Licensed Software by Processor and its suppliers to
<br />Merchant are disclaimed. For U.S. Government End Users: The Licensed Software is a
<br />"commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more
<br />specifically is "commercial computer software" and 'commercial computer software
<br />documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with
<br />48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 OUNE 1995), the Licensed
<br />Software is provided to U.S. Government end users (a) only as a commercial end item, and
<br />(b) with only those rights as are granted to all other end users pursuant to the terms and
<br />conditions herein, The Licensed Software is only offered on terminals capable ofsupporling
<br />it.
<br />27.2 VITAL POS. Subject to the terns and conditions of this Agreement and the
<br />Terms of Use and Privacy Policy located within the Vital POS Software and associated
<br />portals and web pages (the "Plalfomr"), including without limitation payment of the fees as
<br />set forth in this Agreement, Processor hereby grants to Merchant a limited, revocable, non-
<br />exclusive, non -transferable, non-sublicensable license to utilize (and allow for the
<br />utilization by designated employees and agents) the Vital POS Platform only on an as -is
<br />basis, for the sole and exclusive purpose of internally operating the products in the normal
<br />course of Merchant's business, and as expressly stipulated under this Agreement (the
<br />"Platform License"). Merchant acknowledges and agrees that the Platform provided under
<br />this Agreement and all intellectual property provided, embodied, or used in association
<br />therewith, including without limitation all trademarks, service marks, logos, software,
<br />designs, templates, encryption algorithms, copyrights, and other proprietary rights, and any
<br />documentation related to any of the foregoing (collectively, "Intellectual Property Rights"),
<br />are and shall remain solely and exclusively owned by Processor (or other third party owner
<br />as the case may be), Merchant shall have no right to market, distribute, sell, assign, pledge,
<br />sublicense, lease, deliver, or otherwise transfer the Platform or any component thereof, to
<br />any third party. Merchant shall not, and shall not permit any third party to, use the Platform
<br />directly or indirectly to provide a lime -sharing or subscription service to any third party or
<br />to function as a service bureau or application service provider. Merchant shall not reverse
<br />engineer, docompile, disassemble, translate, modify, alter, create any derivative works
<br />based upon, or otherwise change the Platform or any part thereof, or determine or attempt
<br />to determine any source code, algorithms, methods or techniques embodied in the Software
<br />included in the Services, or any Application Programming Interfaces "API(s)" or any part
<br />thereof, or access or use the Platform or the APIs in any way except via access provided
<br />through use in accordance with the Processor documentation and the terms of the
<br />Agreement. Merchant shall comply with the Terns of Use and Privacy Policy (as updated
<br />from time to lime), all security and operational requirements, policies, and procedures
<br />relating to the Platform as specified in the documentation related (hereto and as may be
<br />otherwise communicated or provided by Processor. Merchant shall use the Platform solely
<br />in the conduct of its business and in compliance with all laws, ndes, and regulations of
<br />every governmental authority or card association having jurisdiction over Merchant or any
<br />ofthe foregoing.
<br />28. GLOBAL PAYMENTS EQUIPMENT AGREEMENT.
<br />lrntoortanl Note: Merchant agrees Member Bank is not a party to the GLOBAL PAYMENTS
<br />Equipment Agreement and has no responsibility under it. Merchant acknowledges and
<br />agrees that Member Bank and its affiliates have no obligation or liability whatsoever far:
<br />(1) products or services provided under the GLOBAL PAYMENTS Equipment Agreement,
<br />or• (2) any actions or omissions of TSYS Merchant Solutions, LLC dba Global Payments
<br />("GLOBAL PAYMENTS') with respect to the GLOBAL PAYMENTS Equipment Agreement.
<br />Merchant agrees that any claims or disputes arising oat of the foregoing will be resolved
<br />without involving Member Bank and that Member Bank is entitled to rely on Merchant's
<br />agreements in this Section 24.
<br />THIS GLOBAL PAYMENTS Equipment Agreement ("EQUIPMENT
<br />AGREEMENT'% by and between GLOBAL PAYMENTS, and "Merchant," the name
<br />of which is set forth in the Agreement, as defined herein, shall become effective as of the
<br />date Merchant Application ("Effective Date").
<br />WHEREAS, GLOBAL PAYMENTS and Merchant shall hereinafter be referred to as the
<br />'Turtles"; and
<br />WHEREAS Merchant desires to purchase or rent equipment from GLOBAL
<br />PAYMENTS in order to accept and process specified credit card transactions,
<br />NOW THEREFORE, in consideration of the mutual promises made herein, and other
<br />valuable consideration, receipt and sufficiency of which are hereby acknowledged, the
<br />Parties do hereby agree as follows:
<br />28.1 GLOBAL PAYMENTS agrees to sell or rent to Merchant and Merchant agrees to
<br />buy or rent from GLOBAL PAYMENTS the equipment described in the Merchant
<br />Application or as added from time to time via Merchant's request through Processor's
<br />customer service center. GLOBAL PAYMENTS owns all right, title and interest in all
<br />EQUIPMENT reeled or sold to MERCHANT hereunder, provided that such right, title and
<br />interest will transfer to MERCHANT in the event MERCHANT purchases the
<br />EQUIPMENT. The individual sales representative selling or renting the EQUIPMENT to
<br />MERCHANT is an employee of GLOBAL PAYMENTS. Merchant's payment for
<br />equipment or delivery of the equipment to Merchant will constitute Merchant's acceptance
<br />of the applicable following terms and conditions. Payment for equipment and any related
<br />fees shall be due and payable on the Effective Date of this EQUIPMENT AGREEMENT if
<br />purchasing equipment, monthly if renting, or upon an otherwise agreed upon dale or payment
<br />schedule. Merchant agrees to pay the feels) set out in the Agreement and as added from time
<br />to time. Merchant is responsible for all sales, use, excise and other taxes, including penalties
<br />and interest, that may result from this transaction. The fees set forth in the Merchant
<br />Application related to this EQUIPMENT AGREEMENT are exclusive of any and all
<br />applicable taxes or assessments, whether designated as sales taxes, use taxes, ad valorem
<br />taxes, GST/HST taxes, VAT taxes or by some other name or designation, and including any
<br />interest or penalties thereon, which may be levied or assessed by any governmental or taxing
<br />jurisdiction in connection with the performance of services or provision of materials to
<br />Merchant by GLOBAL PAYMENTS. In the event of the payment of or for any such tax,
<br />assessment or expense by GLOBAL PAYMENTS, Merchant shall in turn pay GLOBAL
<br />PAYMENTS for such items. Merchant hereby authorizes GLOBAL PAYMENTS to debit
<br />payment from the Merchant's designated account established under the Agreement for items
<br />ordered herein if payment does not accompany order.
<br />28.2 Upon payment by Merchant to GLOBAL PAYMENTS of the entire purchase
<br />amount required herein, GLOBAL PAYMENTS shall sell, transfer and assign the purchased
<br />equipment to Merchant for Merchant's use and benefit. All risks or expenses of loss,
<br />damage, or repair to the equipment shall be borne by Merchant upon such transfer of title,
<br />28.3 If Merchant is renting equipment, Merchant agrees to pay Processor a monthly
<br />rental fee ("Rental Fee") for the equipment until such time said equipment is returned to
<br />GLOBAL PAYMENTS, which will be debited monthly from the Merchant's Settlement
<br />Account established under the Agreement or billed separately to merchant if the Merchant's
<br />Settlement Account no longer exists. MERCHANT may return the EQUIPMENT to
<br />GLOBAL PAYMENTS at any time during the AGREEMENT, at which time MERCHANT
<br />will no longer be responsible for future payments of the RENTAL FEE. If Merchant is
<br />purchasing the equipment via multiple payments and terminates the EQUIPMENT
<br />AGREEMENT prior to completing the monthly purchase payments, then Merchant agrees
<br />to immediately pay the remainder of the purchase price or, if Merchant returns the equipment
<br />under the conditions specified herein, Merchant agrees to pay GLOBALPAYMENTS's then
<br />current RENTAL FEE for the length of time Merchant had the use of the equipment.
<br />28.4 Merchant agrees to pay the Rental Fee on a per month basis as rental for the
<br />EQUIPMENT. GLOBAL PAYMENTS may amend the Rental Fee on thirty (30) days
<br />written notice to Merchant. Submission by Merchant of a Transaction after such notice
<br />period shall be evidence that Merchant has received the amended Rental Fee and has agreed
<br />to such amended Rental Fee. Merchant is supplied with monthly reports by Processor
<br />regarding the equipment. It is Merchant's sole responsibility to report any may or
<br />discrepancies detected by Merchant in writing to GLOBAL PAYMENTS within ninety (90)
<br />days following the end of the monthly reporting period. After such period, Merchant will be
<br />deemed to have accepted the monthly reports as delivered.
<br />28.5 The Parties agree to each of the terms and conditions set forth herein and
<br />acknowledge that such provisions are binding upon each of them, their successors, heirs and
<br />assigns.
<br />28.6 Merchant understands that a telephone jack and other equipment maybe required
<br />for its phone system to be compatible with equipment at Merchant's expense.
<br />28.7 Upon expiration or lennirralion of the EQUIPMENT AGREEMENT, Merchant
<br />agrees to reprove the rental equipment from its locations and deliver it to GLOBAL
<br />PAYMENTS at Merchant's cost in the same condition as when the rental equipment was
<br />installed, normal wear and tear excepted. The Parties agree that the rental equipment is and
<br />will remain personal property of GLOBAL PAYMENTS.
<br />28.8 Merchant hereby assumes the entire risk of loss, damage or destruction of the
<br />equipment fi'om any cause whatsoever, unfit the delivery of the rental equipment to
<br />GLOBAL PAYMENTS. If the rental equipment is damaged, lost, or not returned to
<br />GLOBAL PAYMENTS, Merchant shall, at the option of GLOBAL PAYMENTS, repair the
<br />rental equipment at Merchant's expense or pay GLOBAL PAYMENTS the current
<br />replacement cost ofthe rental equipment.
<br />28.9 Merchant hereby grants to GLOBAL PAYMENTS the right, during normal
<br />business hours, to enter any location under Merchant's control for the purpose of inspecting,
<br />repairing, or replacing rental equipment,
<br />28.IO14ternhant shall and does hereby agree to indemnify and hold GLOBAL
<br />PAYMENTS, its agents, employees, successors and assigns harmless from any and all
<br />liability, damages or lass (including attorney fees and costs) arising out of the ownership,
<br />selection, possession, leasing or renting, operation (regardless ofwhere, how and by whom
<br />operated), control, use, condition (including, but not limited to, latent and other defects,
<br />whether or not discoverable by GLOBAL PAYMENTS) maintenance, delivery and return
<br />of the equipment. 'This indemnification and the obligations contained herein shall survive
<br />termination or expiration of EQUIPMENT AGREEMENT.
<br />28.11 Merchant shall keep rental equipment insured against all risks for not less than
<br />replacement costs of rental equipment, naming GLOBAL PAYMENTS as an additional
<br />insured as its interest may appear.
<br />28.12 if this EQUIPMENT AGREEMENT is terminated, GLOBAL PAYMENTS shall
<br />have the right to enter Merchant's locations for the purpose of recovering rental equipment.
<br />28.13Neither Merchant nor any third party is authorized to make any alterations, repairs
<br />or changes including programming changes to rental equipment. Any personal property
<br />attached to rental equipment shall become part of the equipment. GLOBAL PAYMENTS
<br />will provide maintenance service to rental equipment during the term of the EQUIPMENT
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