Diamond Payment Systems Service Agreement

Diamond Payment Systems Service Agreement This service agreement ( AGREEMENT ) is made effective this day of, by and between the following parties: Diamond Payment Systems P.O. Box 572585 Salt Lake City, UT 84157-2585 (877) 404-7470 voice (801) 305-1032 fax ( DPS ) ( CUSTOMER ) Section I. Products & Services To Be Provided. DPS agrees to provide to CUSTOMER access to the DPS payment gateway technology ( GW ) for use to process credit card transactions from within their POS software and/or for processing online transactions. DPS shall provide access to appropriate online credit card processing tools for use by CUSTOMER. Section II. Fees. CUSTOMER agrees to pay DPS all applicable initial licensing fees and ongoing service fees according to the attached Exhibit A, as consideration for services rendered pursuant to the terms of this AGREEMENT. (See Exhibit A, Licensing and Service Fees ). All fees for the GW product are to be paid via automatic credit card billing, to a credit card instrument kept securely on file by DPS. CUSTOMER shall have the right to change this payment method at any time, and agrees to keep expiration date and other payment information updated and current at all times to prevent network decline of credit card billing transactions. Section III. Implementation Timeline. Implementation of the GW will commence upon acceptance of the AGREEMENT by both parties and payment of any fees due at contract signing according to attached Exhibit A. (See Exhibit A). Readiness of the solution will depend upon resource availability at DPS, but is typically completed less than 3 days after receiving compatible account setup information from the CUSTOMER s merchant service provider. Ongoing service fees will not commence until implementation is completed and, at the sole discretion of DPS, live transactions are ready to be processed. Section IV. Exclusivity. DPS shall serve as the sole and exclusive provider for credit card gateway services for CUSTOMER during the term of this AGREEMENT. CUSTOMER shall not engage or implement any alternate credit card gateway service during the term of this AGREEMENT, nor create a self-hosted replacement for the GW services. Section V. Term and Termination. This AGREEMENT shall remain in effect for thirty six (36) months following the completion of project implementation. Thereafter, the AGREEMENT will automatically renew for successive terms, the duration of each term lasting twelve (12) months, unless at the end of any term either party elects to terminate the AGREEMENT by providing written notice at least sixty (60) days prior to the expiration date of the currently active term. Either party may terminate this AGREEMENT at any time if the other party fails to perform any of its obligations hereunder and does not cure such breach within thirty (30) days of providing written notice to the offending party, or if either party becomes insolvent or bankrupt during the term of this AGREEMENT. If CUSTOMER should elect to voluntarily terminate this AGREEMENT prior to its expiration (except in the case of documented breach of this AGREEMENT by DPS, or in the case of CUSTOMER s insolvency or bankruptcy), CUSTOMER shall immediately pay to DPS, as liquidated damages, and not as a penalty, any charges then due and owing PLUS any base service charges remaining in the term of the contract, calculated at month to month rate as shown on Exhibit A. DPS reserves the right to temporarily limit or suspend any of the functionality provided by the GW if CUSTOMER fails to make timely payment of any amounts due in relation to the GW product, whether by network decline of any automatic credit card transaction, expiration of credit card on file (without updated expiration information being provided), or invoices issued by DPS during the term of this AGREEMENT, and if such amounts due are not paid in full within ninety (90) days of the original invoice date, then DPS reserves the right to declare CUSTOMER in breach of this AGREEMENT and require full remedy as indicated in this section as if the contract had been voluntarily terminated. 1999-2010 Diamond Payment Systems SERVICE AGREEMENT: Page 1 of 5

Section VI. Indemnification. DPS agrees to indemnify and hold CUSTOMER and its officers, directors, employees and agents (each a CUSTOMER Indemnitee ) harmless from and against any and all third party claims, actions, losses, damages, liability, costs and expenses (including, without limitation, reasonable attorney s fees and disbursements incurred by CUSTOMER Indemnitee in any action between DPS and CUSTOMER Indemnitee (or between CUSTOMER Indemnitee and any third party or otherwise) arising out of or in connection with the breach of any of the representations, warranties or obligations of DPS as set forth in this AGREEMENT. CUSTOMER agrees to indemnify and hold DPS and its officers, directors, employees and agents (each a DPS Indemnitee ) harmless from and against any and all third party claims, actions, losses, damages, liability, costs and expenses (including, without limitation, reasonable attorney s fees and disbursements incurred by a DPS Indemnitee in any action between CUSTOMER and the DPS Indemnitee (or between the DPS Indemnitee and any third party or otherwise) arising out of or in connection with the breach of any of the representations, warranties or obligations of CUSTOMER as set forth in this AGREEMENT. Section VII. WARRANTIES AND DISCLAIMER. DPS represents and warrants that each of its products and services were developed without infringement or misappropriation of any third parties copyrights or trade secrets. CUSTOMER represents and warrants that CUSTOMER shall not use the DPS products and services in a way or for any purpose that infringes or misappropriates any third parties intellectual property or personal rights. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND TO ANY PERSON WITH RESPECT TO THE DPS PRODUCTS AND SERVICES OR THE CUSTOMER FACILITIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Section VIII. Limitation and Exclusion of Liability. Neither party shall be liable to the other party or any other third party for any loss, cost, damage or expense incurred in connection with the availability, operation or use of the DPS products and services or CUSTOMER s facilities, including, without limitation, for any unavailability or inoperability of the GW services, or the Internet, technical malfunction, computer error or loss or corruption of data, or other injury, damage or disruption of any kind related thereto. In no event shall either party be liable for any indirect, incidental, consequential, special or exemplary damages, including, but not limited to, loss of profits, or loss of business opportunity, even if such damages are foreseeable and whether or not the other party had been advised of the possibility thereof. Except as provided in Sections VIII and XII, CUSTOMER s maximum aggregate liability shall not exceed the total amount paid by DPS to CUSTOMER under this AGREEMENT during the twelve (12) month period prior to the first date the liability arose. The maximum aggregate liability of DPS shall not exceed the total of any unpaid collected funds owed to CUSTOMER under the terms of this AGREEMENT. Section IX. Confidentiality. The terms of this AGREEMENT, plus any and all information and data that one party (the Receiving Party ) has received or shall receive from the other party (the Disclosing Party ) about the DPS products and services and all other matters, are proprietary information ( Confidential Information ), including especially and without limitation any information that is marked as confidential or should be reasonably understood to be confidential or proprietary to the Disclosing Party. The Receiving Party agrees that for the Term of this AGREEMENT and for two (2) years following any termination of this AGREEMENT, the Receiving Party shall not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this AGREEMENT. The nondisclosure obligations set forth in this Section shall not apply to information that the Receiving Party can document, is generally available to the public (other than through breach of this AGREEMENT) or was already lawfully in the Receiving Party s possession at the time of receipt of the information from the Disclosing Party. Section X. Independent Contractor Status. Each party shall be and act as an independent contractor and not as partner, joint venture or agent of the other. Section XI. Modifications and Waivers. This AGREEMENT, with its appendices exhibits and other items included by reference, represents the entire understanding between DPS and CUSTOMER and supersedes all prior agreements relating to the subject matter of this AGREEMENT. No failure or delay on the part of either party in exercising any right, power or remedy under this AGREEMENT shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise of any other right, power, or remedy. Unless otherwise specified, any amendment, supplement or modification of or to any provision of this AGREEMENT, any waiver of any provision of this AGREEMENT and to any departure by the parties from the terms of this AGREEMENT, shall be effective only if it is made or given in writing and signed by both parties. 1999-2010 Diamond Payment Systems SERVICE AGREEMENT: Page 2 of 5

Section XII. Assignment. This AGREEMENT and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning party; provided, however, that this AGREEMENT may be assigned by either party (a) to a person or entity who acquires substantially all of such party s assets, stock or business by sale, merger or otherwise and (b) to an affiliate of such party. Section XIII. Applicable Law. This AGREEMENT shall be governed by the laws of the State of Utah, without reference to its conflict of laws, rules or principles, and the United States. The jurisdiction and venue for all disputes hereunder shall be Salt Lake City. Section XIV. General. Any provision of this AGREEMENT that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this AGREEMENT or affecting the validity or enforceability of such provisions in any other jurisdiction. No failure or omission by either party in the performance of any obligation under this AGREEMENT shall be deemed a breach of this AGREEMENT nor create any liability if the same shall arise from any cause or causes beyond the reasonable control of such party, including but not limited to the following: acts of God, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any office, department, agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of the public enemy, war, rebellion, Internet brown-out or failure, insurrection, riot, invasion, strikes, or lockouts. All notices, demands and other communications provided for or permitted under this AGREEMENT shall be made in writing to the parties at the addresses set forth on page one of this AGREEMENT and shall be sent by registered or certified first-class mail, return receipt requested, telecopier, courier service or personal delivery and shall be deemed received upon delivery. IN AGREEMENT HERETO, THE PARTIES HEREBY AFFIX THEIR SIGNATURES: Diamond Payment Systems CUSTOMER Signature Signature Print Name Print Name Date Title Date 1999-2010 Diamond Payment Systems SERVICE AGREEMENT: Page 3 of 5

EXHIBIT A LICENSING AND SERVICE FEES AUTOMATIC CREDIT CARD BILLING INFORMATION ITEM WHEN USING A PREFERRED PROCCESSOR FEE AMOUNT WHEN USING A (COMPATIBLE) NON-PREFERRED PROCCESSOR Setup / Licensing Fee $ 0.00 Setup is included in Preferred Provider setup fees $ 159.00 Billed to credit card Billing Type N/A MONTHLY Credit Card Gateway Fee Per authorization processed $0.00 $ 0.10 Gateway Account Maintenance Fee Per active gateway account $0.00 $10.00 Minimum Total Monthly Billing Billed monthly to credit card number kept on file $0.00 $25.00 AUTOMATIC CREDIT CARD BILLING INFORMATION (REQUIRED ONLY WHEN USING NON-PREFERRED PROCESSOR) >> EXHIBIT B, PAGE 1 IS ALSO REQUIRED FOR NON-PREFERRED PROCESSORS << Cardholder Name Card Number Expiration Date (MM/YY) Card ID / CVV2 Number Billing Zip Code I have chosen to use a non-preferred processor, and authorize automatic billing of this card for all startup, monthly and other fees, as indicated in this exhibit. I agree to pay all charges submitted according to my cardholder agreement. Signature 1999-2011 Diamond Payment Systems ANY HANDWRITTEN CHANGE TO TERMS OR AMOUNTS WILL INVALIDATE THIS CONTRACT

(OPTIONAL) EXHIBIT B PAGE 1 CREDIT CARD MERCHANT ACCOUNT SETUP YOUR DIAMOND PAYMENT SYSTEMS ACCOUNT CANNOT BE CONFIGURED UNTIL YOUR MERCHANT ACCOUNT IS SET UP PROPERLY! YOU MUST CHECK ONE BOX OR THE OTHER AND SIGN WHERE INDICATED. GET ME A QUOTES FROM YOUR PREFERRED PROVIDERS RIGHT AWAY! I would like to compare quotes from your preferred merchant account providers. Be sure to fill out EXHIBIT B PAGE 2 / REQUEST FOR MERCHANT ACCOUNT QUOTE and include with your signed contract. Don t forget to sign the form and fill in ALL information completely! When my quotes are ready, fax or e-mail them to me at: I would like to keep my existing credit card merchant account provider or use my own provider and I am NOT interested in receiving a quote from your preferred processing providers. I understand that extra time will be required to convert any existing accounts. I have personally checked with my merchant account provider and verified that my merchant account provider is compatible with the Vital (TSYS) TCP/IP processing platform (virtually all merchant account providers are compatible with this platform but it is your responsibility to verify that your existing provider is indeed compatible). My Merchant Account Provider Name: My Merchant ID: Contact Name: Contact Phone: Contact E-Mail Address: I hereby grant Diamond Payment Systems (DPS) representatives permission to contact my merchant account provider and act as my agent, sending them the setup information necessary to make my existing merchant account(s) compatible with the Diamond Payment Systems Payment Gateway. I also hereby grant my merchant account provider permission to discuss my account(s) with representatives of Diamond Payment Systems, for the sole purpose of configuring my accounts for use with the Diamond Payment Systems Payment Gateway. If my merchant account provider charges me fees for changes to my existing account(s), I agree to cover any and all such fees. Finally, I acknowledge that I will be billed additional fees by Diamond Payment Systems to cover the processing costs associated with not using a preferred merchant account provider. I understand that currently this fee is 10 cents per transaction, and also that that the fee amount may be subject to reasonable cost-based increases over the term of my contract with Diamond Payment Systems. Signature: Date: 1999-2011 Diamond Payment Systems ANY HANDWRITTEN CHANGE TO TERMS OR AMOUNTS WILL INVALIDATE THIS CONTRACT

(OPTIONAL) EXHIBIT B PAGE 2 REQUEST FOR MERCHANT ACCOUNT QUOTE Use this form to request a quote from our preferred merchant account providers. Your completed form will be submitted to all of our preferred providers, all of which have been vetted and certified by Diamond Payment Systems as reputable and reliable companies. You will most likely be contacted directly by these providers for more information. About your company: Legal Name: DBA (if any): Address: City, State, Zip: Phone: Fax: Owner s Name: Contact E-Mail: About your expected processing volume: Estimated Total Annual Total Credit Card Volume: Estimated Monthly Volume During Your Peak Season: $ $ I have no idea. About your past experience processing credit cards: I do not currently have a merchant account for processing credit cards. I am currently processing credit cards but am switching to save money and become compatible with Diamond Payment Systems. Current processing company: NOTE: If you have an existing merchant account, you MUST provide AT MINIMUM the most recent month s statement from your current processor when you submit your request. Additional months (up to 3) are even better. This additional information allows our providers to verify that you are getting the best possible rates in your quote and give you the most accurate quote possible. You will need to provide this info anyway if you decide to accept one of our preferred provider s quotes, along with a voided check and other items needed for underwriting approval. I hereby submit this request for a quote, and authorize Diamond Payment Systems (DPS) to submit this information freely to its preferred merchant account providers for the sole purpose of soliciting a price quote for proposed credit card processing services. I understand that each of these providers may or may not submit a quote for my consideration, and that any such quotes are PRICE QUOTES ONLY, and do not constitute either an agreement to provide services nor a contracted guaranteed price for services. I understand that I will still be required to undergo normal application, underwriting and approval processes for any quote I choose to accept and that there is no guarantee that I will qualify for credit card processing services from any of the DPS preferred providers. Signature: Date: 1999-2011 Diamond Payment Systems ANY HANDWRITTEN CHANGE TO TERMS OR AMOUNTS WILL INVALIDATE THIS CONTRACT