Service Terms

 

MASTER SERVICES AGREEMENT

This Master Services Agreement (the “MSA”, and, together with any service ordering document executed by the parties expressly referencing this Master Service Agreement, the “Agreement”), is entered into as of the latter date indicated on the signature page attached hereto (“Effective Date”) between the Client (collectively, with client’s permitted successors and assigns, “Client”), and FreedomPay, Inc. (“FreedomPay”). FreedomPay and Client are each referred to in this Agreement as a “Party” and collectively as the “Parties”. Capitalized terms used in this MSA have the meaning as defined in context in this MSA.

1. SERVICES

1.1. Provision of Services. FreedomPay will provide the products and services (such products or services, the “Services”) identified on any service ordering document executed by the Parties on or after the Effective Date or referenced in any electronic order made through the FreedomPay system (each a “Product Addendum”). A Product Addendum will be binding only upon execution by both Parties whether manually or electronically. Any Product Addendum executed as of the Effective Date will be attached to this MSA as an exhibit. The MSA sets forth the general terms and conditions under which Client will obtain Services from FreedomPay. The terms of each Product Addendum are incorporated into this MSA and are governed by the terms of this MSA unless otherwise expressly provided in a Product Addendum. In the event of any conflict between the terms and conditions of this MSA and any Product Addendum, the Product Addendum will control.

1.2. Implementation of Services. It is FreedomPay’s exclusive responsibility to configure and load Client information onto the FreedomPay systems as appropriate, in order to execute the Services provisioned by FreedomPay. Client will provide whatever reasonable assistance and information is necessary for FreedomPay to configure and load the Client information onto the FreedomPay platforms as defined in the applicable Product Addendum.

1.3. Orders. Orders for Services will be provisioned in writing through the execution of additional Product Addendums or an electronic order made through the FreedomPay system.

1.4. Service Levels. Quantitative performance standards for certain of the Services (“Service Levels”) may be set forth in each Product Addendum, if applicable. Any remedy set forth in a Product Addendum to compensate Client for a failure to meet Service Levels will be Client’s sole and exclusive remedy for such failure.

1.5. Client Responsibilities. Client is responsible for procuring all required hardware and/or software required to connect to FreedomPay’s Services, and for any of Client’s data communication connectivity and/or any ongoing line or maintenance costs.

1.6. FreedomPay Performance. FreedomPay’s nonperformance of its obligations under the applicable Product Addendum (including any service level commitments) shall be excused if and to the extent each FreedomPay nonperformance results from a failure by Client to perform its responsibilities set forth in this Agreement or from the wrongful or tortious actions or omissions of Client performing its obligations under the applicable Product Addendum.

2. TERM AND TERMINATION

2.1. Term. The term of this Agreement will commence on the Effective Date and will continue until the expiration or termination of all Product Addendums entered into by the Parties hereunder. Unless otherwise provided in a Product Addendum, each Product Addendum will have an initial term of 3 years unless earlier terminated in accordance with such Product Addendum and this Agreement and will automatically renew for successive one year periods unless either Party provides written notice of non-renewal to the other Party at least 180 calendar days prior to the expiration of the then existing term (each, a “Renewal Term”).

2.2. Termination. This MSA, or any Product Addendum entered into hereunder, may be terminated (i) by either Party upon the other Party’s material breach of this MSA as a whole or such Product Addendum if such breach is not cured within 60 days after receipt of written notice from the non-defaulting Party describing the breach; (ii) by either Party if the other Party files a bankruptcy petition or becomes insolvent; or (iii) by FreedomPay if Client fails to pay any amount invoiced by FreedomPay, due and payable hereunder, within 30 days of receiving such invoice, and such failure to pay is not remedied within 10 days after FreedomPay provides written notice to Client regarding such failure to pay. If this MSA is terminated in accordance with this Section 2.2, all Product Addendums entered into hereunder will also terminate immediately. The right to terminate in this Section 2.2 is in addition to any other rights and remedies FreedomPay may have with respect to such failure to pay.

3. FEES AND CHARGES

3.1. Fees. For each Service provided by FreedomPay, the fees and charges associated with such Services will be set forth in the applicable Product Addendum based on the anticipated volume of usage. FreedomPay will provide Client written notice of any fee increases at least [60] days prior to each Renewal Term. FreedomPay may also increase the fees for Services set forth in any Product Addendum to pass through any increase in FreedomPay costs applicable to FreedomPay’s provision of the Services.

3.2. Payment Terms. Client will pay FreedomPay the fees described in each Product Addendum. Unless otherwise explicitly stated in the Product Addendum, Client agrees to pay fees for the Services as detailed in Contract & Terms, Page 1, Section III. Fees & Schedules. All such fees shall be automatically deducted via ACH from the account authorized by Client in Contract & Terms, Page 1, Section IV on the first Friday of each month. Upon receipt of a signed Contract, a deposit for 80% of all equipment ordered will be invoiced. If any unpaid amount due to FreedomPay is not paid by the applicable due date, then (i) interest will accrue on any unpaid amount due at the rate of one and one-half percent (1.5%) per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (ii) FreedomPay may, at FreedomPay’s sole discretion, suspend the Services, upon 15 days prior notice, until such amounts are paid in full.

3.3. Taxes. The fees and any other charges hereunder do not include any local, state, federal, or foreign taxes, levies or duties of any nature. Client is responsible for paying any such taxes, excluding taxes based on FreedomPay’s income.

4. REPRESENTATIONS AND WARRANTIES

4.1. No Implied Warranties. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, FREEDOMPAY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, AND HEREBY DISCLAIMS ANY AND ALL SUCH IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR INTENDED USE, NON-INFRINGEMENT, AND/OR THOSE ARISING FROM ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. FREEDOMPAY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND APPLICABLE PRODUCT ADDENDUMS WITH RESPECT TO SECURITY, FREEDOMPAY DISCLAIMS ANY IMPLIED WARRANTY THAT ITS SYSTEMS ARE SECURE.

4.2. Mutual Representation and Warranties. Each Party hereby represents and warrants that (i) it has the full authority to enter into and fully perform its obligations under this Agreement and (ii) the execution, delivery and performance of this Agreement by such Party does not conflict with or breach any separate agreement to which it is a party and/or by which it is bound.

4.3. Limited Service Warranties. FreedomPay represents and warrants that (i) it will not imbed in any Service any disabling device or remote control mechanism that might be utilized to, impede the Service’s operation, damage Client’s systems, or compromise the integrity of Client files or data and (ii) it will perform all professional services under the this Agreement in a timely, professional and workmanlike manner using reasonable care.

4.4. Sole Remedy. For any breach of the above warranties set forth in Section 4.3, Client’s sole and exclusive remedy will be (i) the re-performance of the Services by FreedomPay or (ii) if FreedomPay cannot substantially correct such breach and re-perform the Services in a commercially reasonable manner, refund of the fees paid to FreedomPay for the defective Service.

5. INDEMNIFICATION

5.1. Indemnification by FreedomPay. FreedomPay will defend, indemnify and hold harmless Client and its affiliates and employees from and against the losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect) arising from any third party claims, demands, suits, proceedings or judgments (collectively, “Losses”) arising out of or related to; (i) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person, or loss or destruct caused by the willful misconduct or gross negligence of FreedomPay or any of FreedomPay’s personnel; (ii) the damage, loss or destruction of any real or tangible personal property caused by the willful misconduct or gross negligence of FreedomPay or any of FreedomPay’s personnel; and (iii) any third party’s claim that the Services infringe such third party’s intellectual property rights (such claims, “IP Infringement Claims”). Notwithstanding the foregoing, FreedomPay’s indemnification obligation for an IP Infringement Claim will not apply to the extent any IP Infringement Claim results from, relates to or arises of out (x) Client’s use of the Services in a manner that is not specified under this Agreement or any Product Addendums; (y) Client’s use of data, specifications or other materials provided by or on behalf of Client to FreedomPay for the purpose of providing the Services to Client; or (z) Client’s use, operation or combination of all or any part of the Services, or any element, component, process or portion of the Services, with any software, equipment, element, component, process, or system not provided or approved by FreedomPay. If any Service is subject to an IP Infringement Claim, FreedomPay may, at its expense and option, (a) procure the right for Client to continue using such Service; (b) replace such Service with a non-infringing service of substantially similar functionality; (c) modify such Service to make it non-infringing; or (d) terminate the applicable Product Addendum and refund to Client any pre-paid, unused fees paid for such Services.

5.2. Indemnification by Client. Client will defend, indemnify and hold harmless FreedomPay and its affiliates from and against any Losses arising out of or related to (i) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person, or loss or destruct caused by the willful misconduct or gross negligence of Client or any of Client’s personnel; (ii) the damage, loss or destruction of any real or tangible personal property caused by the willful misconduct or gross negligence of Client or any of Client’s personnel; and (iii) any violation of any third party’s rights (including intellectual property or privacy rights) through Client’s use of the Services or any information security breach of Client’s systems, other than to the extent FreedomPay is obligated to indemnify Client for such Losses under Section 5.1.

5.3. Indemnification Procedures. With respect to third party claims with respect to which either Party (“Indemnitee“) seeks indemnification under Sections 5.1 or 5.2 from the other Party (“Indemnitor“), the Indemnitor’s indemnification obligation will be conditioned upon the following: (i) no later than 30 days, after the Indemnitee receives notice of the commencement or threatened commencement of any claim in respect of which the Indemnitee will seek indemnification pursuant Sections 5.1 or 5.2, the Indemnitee must notify the Indemnitor of such claim in writing; (ii) the Indemnitor must have sole control of the defense and any settlement negotiations, provided, however, that the Indemnitor may not settle a claim requiring payment by the Indemnitee of any non-reimbursable amount or involving any non-monetary equitable relief without Indemnitee’s written consent; and (iii) the Indemnitee must provide the Indemnitor the information, authority, and reasonable assistance the Indemnitor requests to defend against such claim. The indemnification set forth in Section 5.1 and 5.2 (and the procedure set forth in this Section 5.3) sets forth the sole and exclusive remedy of the Parties with respect to any third party claim for which indemnification is owed pursuant to Section 5.1 or 5.2.

5.4. Client Services. Client understands that the Services are designed and provided by FreedomPay for the sole purpose of facilitating the acceptance of Client’s products and services and that FreedomPay is not responsible for the quality or quantity or other aspects of Client’s products and services or those of any third party not under FreedomPay’s control. Client covenants and agrees that FreedomPay will have no responsibility or liability whatsoever resulting directly or indirectly for claims or disputes arising out of the sale, distribution or provision of products or services by Client. Client, individually and on behalf of all of its affiliates, further covenants and agrees to defend, indemnify and hold FreedomPay and each of its affiliates, agents, employees, representatives, and contractors harmless from and against any and all such Losses arising out of Client’s products and services.

5.5. Fines & Penalties. Client will pay Freedom Pay for any fees, fines or penalties imposed on FreedomPay by a card association or payment processor with respect to or resulting from the actions or omissions of Client.

6. LIMITATION OF LIABILITY

6.1. NO INDIRECT DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY HAS OR WILL HAVE ANY LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SERVICES FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY LOST DATA, LOST PROFITS, LOST BUSINESS, LOST REVENUE OR OPPORTUNITY COST OR DAMAGE TO REPUTATION OR GOODWILL, HOWSOEVER ARISING (WHETHER FORESEEABLE OR NOT, OR WITHIN THE CONTEMPLATION OF EITHER PARTY) WHETHER ARISING IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY OR OTHER DUTY) OR OTHER FORM OF EQUITABLE OR LEGAL THEORY.

6.2. DAMAGE CAP. NEITHER PARTY’S LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL IN ANY EVENT EXCEED, IN THE AGGREGATE, THE AGGREGATE FEES PAID TO FREEDOMPAY FOR THE APPLICABLE SERVICES IN THE 12 MONTHS PRIOR TO THE ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.

6.3. EXCEPTION. The limitations set forth in Section 6.1 and Section 6.2 above will not apply to limit either Party’s liability for a breach of Section 7.3 (Restrictions), Section 8 (Confidentiality) or under their indemnification obligations in Section 5.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. FreedomPay Technology. Client acknowledges that unless otherwise explicitly stated in any Product Addendum, FreedomPay’s deliverables to Client hereunder may include hardware, software and/or a website and that, as between Client and FreedomPay, all right, title and interest in and to all patents, copyrights, trade secret, trademark and other intellectual property rights in such technology together with all modifications, improvements, enhancements, bug fixes, updates, localizations and translations thereof (collectively, “FreedomPay Technology“), are, and at all times will remain, the sole and exclusive property of FreedomPay. No right to use, print, copy, distribute, integrate or display any of the FreedomPay Technology, in whole or in part, is granted hereby, except as necessary to use the Services or as provided in this MSA or a specific Product Addendum. Nothing contained in this Agreement may directly or indirectly be construed to assign or grant to Client or any third party any license, right, title or interest in or to the FreedomPay Technology except as necessary to use the Services or as otherwise expressly provided in this Agreement.

7.2. Client Data. FreedomPay acknowledges that all data provided by or on behalf of Client to FreedomPay under this Agreement (“Client Data“) is and will be owned by Client. FreedomPay will only store, copy or use Client Data to the extent necessary to perform its obligations under this Agreement, except Client grants FreedomPay a perpetual, non-exclusive right to use and disclose such Client Data in an aggregated or de-identified form for its business purposes, including to provide services to its other customers.

7.3. Restrictions. Client will only use the Services for its own business purposes as set forth in the applicable Product Addendum and will not license, sell, resell, rent, lease, transfer, distribute or otherwise commercially exploit or make the Services available to any third party for any unauthorized purpose or in any unauthorized manner. Client may not disassemble, decompile or reverse engineer any of the FreedomPay Technology and may not permit or enable any third party to do so. Client will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and will notify FreedomPay immediately if it becomes aware of any unauthorized access to or use of the Services by any person and hereby permits FreedomPay to monitor the use of the Services by Client to confirm Client’s compliance with this Agreement and to assess the quality of the Services. Client agrees to comply with all applicable laws and regulations in using the Services, will not use or require FreedomPay to use the Services for any unlawful purpose, and will not engage in any activity that interferes with or disrupts the Services. FreedomPay reserves the right to suspend the Services if Client violates any responsibility set forth in this Section 7.3.

8. CONFIDENTIALITY

8.1. Confidential Information. For the purpose of this Section, the “Discloser” is the Party disclosing its Confidential Information (defined below) and the “Recipient” is the Party receiving and/or accessing Confidential Information. Client and FreedomPay each agree that any information and documents that are furnished by one Party to the other Party for the purposes of performing the Services under this Agreement are proprietary to the Disclosing Party and will be used only for the purposes of performing the Services. This information includes, without limitation: the terms of this MSA and any Product Addendum, Client Data, all documentation provided by FreedomPay that relates to the Services, computer programs, software, and any or all other information, data or materials relating to the business, trade secrets and technology of either Party provided by one Party to the other Party under this Agreement (all of the foregoing collectively referred to as “Confidential Information”).

8.2. Non-Disclosure and Use. Neither Party will use, or disclose to any third party, the Confidential Information of the other Party for any purpose other than to perform its obligations and exercise its rights granted under this Agreement. Except as expressly permitted in this Agreement, upon termination or expiration of this Agreement, each Party will destroy the other Party’s Confidential Information.

8.3. Exceptions. The obligations imposed under this Agreement will not apply to Confidential Information that is (a) made public by Discloser, (b) generally available to the public other than by a breach of this Agreement by Recipient, its employees, agents or contractors, and/or (c) rightfully received from a third person having the legal right to disclose the Confidential Information free of any obligation of confidence. In the event that Recipient, or any of such Party’s agents, contractor’s or employees, becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information of Discloser, such Recipient will provide prompt prior notice to Discloser so that it may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Section, the Recipient will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information. Notwithstanding the foregoing, each Party may provide a copy of this Agreement and all Product Addendums for diligence purposes in connection with any proposed investment, acquisition or commercial transaction, subject to reasonable and customary confidentiality restrictions. Additionally, FreedomPay may announce the execution of this Agreement in certain trade and industry journals in a public release statement.

8.4. U. Each Party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Section by the other Party will result in immediate and irreparable harm and that any remedies at law in such event will be inadequate. The Parties agree that such breaches, whether threatened or actual, will give Discloser the right to terminate this Agreement immediately and obtain injunctive relief to restrain such disclosure or use. This right will, however, be in addition to and not in lieu of any other remedies at law or in equity.

9. DATA SECURITY

9.1. Data Security and PCI Compliance. FreedomPay will implement and maintain administrative, technical and physical security measures to protect personal information contained in the Client Data in FreedomPay’s possession as required by applicable U.S. federal and state laws and regulations relating to the security of personal information, including Massachusetts Regulation 201 CMR 17.00. FreedomPay warrants that it undergoes annual security audits and monthly security scans to assure that its Services, systems and data centers meet or exceed security requirements of the Payment Card Industry (“PCI”) Data Security Standards (“PCI DSS”) and, if referenced in the applicable Product Addendum, the PCI DSS Payment Application Data Security Standards (“PCI PA DSS”). FreedomPay agrees to perform the Services and process Client Data in a manner that adheres to the data security measures identified in applicable Product Addendum and the privacy policy available at FreedomPay’s website. FreedomPay acknowledges that it is responsible for the security of Cardholder Data, as defined in the PCI DSS, that is included in the Client Data. FreedomPay will promptly notify Client if FreedomPay’s PCI certification of compliance with the PCI DSS or PA DSS is revoked for any reason.

9.2. Client’s Data Security. Notwithstanding anything to the contrary in this Agreement, unless expressly stated otherwise in a Product Addendum, Client is solely responsible for the security and integrity of its systems, software, equipment, and data centers that it uses in its business or in connection with the Services. Throughout the term of this Agreement, Client will comply with all applicable laws, regulations and card brand rules (including PCI DSS) relating to data security and privacy.

9.3. Incident Response. Each Party will notify the other promptly under the circumstances, but in no event later than 2 business days after discovery, of any unauthorized access to, use of, or acquisition of, or suspected unauthorized access to, use of, or acquisition of, any of the other Party’s Confidential Information (a “Security Incident“). This notification will include (i) the nature of the Security Incident; (ii) the type of information at risk; and (iii) what Remediation Efforts (defined below) the Party took or will take to prevent further non-permitted or violating uses or disclosures. The Party suffering the Security Incident will undertake all Remediation Efforts at its sole expense. “Remediation Efforts” will mean any activity designed to remediate a Security Incident which may be required by the applicable laws or regulations, or which may otherwise be necessary, reasonable or appropriate under the circumstances. Each Party will reasonably cooperate with the other Party to address or mitigate any Security Incidents.

10. MISCELLANEOUS

10.1. Nonexclusive Agreement/Relationship of the Parties. Neither this Agreement nor the relationship of the Parties will prohibit or in any manner restrict FreedomPay from performing or providing the same or similar Services for other customers, nor will it prohibit or in any manner restrict Client from obtaining or engaging the same or similar Services from other providers. FreedomPay will perform the Services as an independent contractor, and this Agreement will not be construed as creating, between FreedomPay and Client, the relationship of principal and agent, joint venturers, co-partners or any other such relationship.

10.2. Force Majeure. Except as otherwise provided herein, neither Party is liable for failing to fulfill its obligations (except for a Party’s obligations to make payments for Services performed or transactions completed) due to: acts of God; acts of war, failure of utility or communications infrastructure, or other causes beyond a Party’s reasonable control. FreedomPay will not be liable for failing to fulfill its obligations if it is prohibited from doing so by any security or other measures, imposed by Client, restricting access to any equipment.

10.3. Governing Law/Jurisdiction. This Agreement, the rights of the Parties hereunder and all actions arising in whole or in part under or in connection herewith, will be governed by and construed and enforced in accordance with the domestic substantive laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. Each Party, by its execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the United States District Court (or if such action may not be brought in federal court, the state courts of the Commonwealth of Pennsylvania) located in the City of Philadelphia for the purpose of any action by the Parties relating to or arising in whole or in part under or in connection with this Agreement and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such action brought in one of the above-named courts should be dismissed on grounds of forum non conveniens or should be transferred or removed to any court other than one of the above-named courts.

10.4. Jury Trial Waiver. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.

10.5. Survival. Sections 2 (Fees and Charges), 5 (Indemnification) 7 (Intellectual Property Rights), 8 (Confidentiality), and 10 (Miscellaneous) will survive the termination of this Agreement.

10.6. Notice. Any notice or communication required or permitted to be given under this Agreement will be in writing and either served personally, delivered by nationally recognized overnight courier, addressed to the other Party at the addresses set forth on the signature page. Notice will be deemed given when received, as may be evidenced a by a delivery receipt or confirmation or the date such notice is first refused, if that is the case.

10.7. Entire Agreement and Binding Effect. This Agreement, consisting of these terms and conditions, constitutes the terms and conditions of all agreements of the Parties with respect to the subject matter hereof excepting overriding conditions in a specific Product Addendum executed by both Parties and may only be amended or modified by a written instrument signed by both Parties hereto. There are no representations, inducements, promises, agreements, arrangements, or undertakings oral or written, between the Parties relating to the matters covered by this Agreement other than those set forth in this Agreement or specific Product Addendum. This Agreement and subsequent Product Addendums will be binding upon and inure to the benefit of the Parties hereto and their respective legal representatives, distributors, successors and assigns.

10.8. Severability; Waiver of Breach. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction will not affect any other provision of this Agreement, which will remain in full force and effect. A waiver by either Party of a breach of any provision of this Agreement will not operate, or be construed, as a waiver of any subsequent breach by that same Party. No failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will operate as a waiver of any such right, power or privilege, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

10.9. Assignment and Transfer. Neither Party may assign or transfer its rights or obligations under this Agreement or any Product Addendum, provided, however, that either Party may assign or transfer its interests hereunder in connection with a (i) sale of all or substantially all of the assets or capital stock of the assigning Party or (ii) a merger, consolidation, stock sale, reorganization or other business combination or change of control transaction; provided, however, that prior to any such assignment or change of control by Client, Client must obtain the written consent of FreedomPay, which consent will not be unreasonably withheld. FreedomPay may withhold consent if the financial condition of Client’s proposed assignee is inferior to Client’s financial position as of the Effective Date or if Client’s assignee is engaged in certain unacceptable business industries, including, but not limited to, collection agencies, lottery clubs, dating services, firearm sales via the Internet, check cashing establishments, or any illegal products/services. Any assignment in violation of this Section 10.9 will be void. If Client engages in such an asset sale, merger, consolidation, stock sale, reorganization, or other business combination or change of control transaction without FreedomPay’s prior written consent, FreedomPay may terminate this Agreement (including all Product Addendums) with immediate effect by providing written notice of termination at any time within the 12 months following the completion of such transaction.

10.10. Headings. The captions, section numbers and section headings hereof are inserted for convenience only and will not be deemed to limit or expand the meaning of any section.

10.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, but all such counterparts together will constitute but one and the same instrument.

PRODUCT ADDENDUMS

The following terms apply if and only if the corresponding Product is selected in Section II, “Product Selection” of the Contract & Terms.

BUSINESS INTELLIGENCE PRODUCT ADDENDUM

1. SERVICES – Client is purchasing license to utilize all or a subset of the FreedomPay Intelligence Module as outlined below. Products offered are seat licenses for the Intelligence Module, Custom Reporting Services and a Data Warehouse Delivery Offering.

theDashboard – the enterprise-wide reporting portal. theDashboard is available in three levels: Basic, Gold and Platinum.

Basic provides single store financial reporting for end of shift, end of day, and end of period reconciliation.

Gold provides the services of Basic and in addition, greater detail of payments and incentives for that single store.

Platinum provides enterprise sales/incentives/payments analytics and business intelligence reporting. The enterprise-wide incentives and transactions management portal simplifies sales reconciliation with consolidated reporting that spans multiple locations, products sold and captured payment types, incentive transactions, and direct consumer mobile marketing transactions.

Custom Reporting Offering – Package purchased when Client requires reports developed outside of our standard offering in Basic, Gold and Platinum levels.

Data Warehouse – FreedomPay provides access to transaction details stored in FreedomPay’s databases and a data interchange with Client’s Data Warehouse at a frequency determined by Client and FreedomPay provided such frequency will be no more frequent than daily.

INCENTIVES MANAGER PRODUCT ADDENDUM

1. SERVICES – Client is purchasing Incentive Services, powered by the FreedomPay platform, which enables Client to offer Incentives and/or Loyalty Offering(s) to consumers via the FreedomPay network. The FreedomPay platform is a cloud-based transaction platform, providing an interactive, open architecture including an incentive management portal, and a mobile payment and incentive technologies that integrate with supported POS systems and a state-of-the-art gateway.

FreedomPay acts as the Client’s agent. Incentives and Loyalty Offering(s) are special promotional offers/discounts offered through Incentive Services. The Incentives and Loyalty Offering(s) are redeemable on specific goods, services or experiences offered by, or facilitated through, the Client identified on the Incentive. The Client is the issuer of the Incentive and/or Loyalty Offering(s) and is fully responsible for all goods and services provided and for covering the cost of any discounts, offers or program in addition to the fees highlighted below.

2. FEES – Client agrees to pay a Per Location Setup Fee, a Transaction Fee and a License Fee as defined in the client’s contract. The monthly transaction fees billed shall be the greater of the total number of monthly transactions times the per transaction rate or the monthly minimum fee.

MOBILE PAYMENTS ADDENDUM

1. SERVICES – CLIENT is purchasing Mobile Payment Services, powered by the FreedomPay platform, which enables Client’s consumers to use their mobile devices as a virtual wallet and pay for their purchases directly from their FreedomPay supported mobile device. If the FreedomPay incentive module is also purchased, Client’s consumers will be able to participate in Client’s incentives and/or loyalty programs, offered via the FreedomPay network, via their supported mobile device. The FreedomPay platform is a cloud-based transaction platform, providing an interactive, open architecture including mobile payment and incentive technologies that integrate with supported POS systems and a state-of-the-art gateway.

2. FEES – Client agrees to pay a Per Location Setup Fee and License Fee as defined in the client’s contract. Client has been offered a 3 month free pilot after which the annual license fees listed below will begin billing.

SECURITY PRODUCT ADDENDUM

1. SERVICES – FreedomPay is a provider of a broad range of secure transaction processing services including, without limitation gateway processing, promotion/loyalty, point-to-point encryption (P2PE), tokenization and related security services, and is experienced and skilled in the administration, management, provision and performance of such services. Client is purchasing all or subset of FreedomPay offered Security Services. The Security Suite offers CardSafe, Tokenization and P2PE encryption peripheral products, each is further defined below.

CardSafe™, the FreedomPay electronic wallet, provides secure storage of cardholder, bank account, and alternative payment mechanisms and replaces cardholder data with a unique randomized representation of the cardholder data called a token. The cardholder data is securely stored in FreedomPay Level 1 PCI-compliant data centers, which is the only place the relationship between the cardholder data and the token exists. Future purchases may start by performing a customer lookup within FreedomPay’s secure platform to find appropriate token to use for payment. CardSafe™ converts the token to the unique credit card, processes it for payment and completes the purchase process.

“Tokenization”, utilizes a unique ID, created by FreeWay (FreedomPay’s gateway), to reference the actual cardholder data associated with each specific transaction. The cardholder information or CardSafe token initiates the transaction, FreeWay completes the host authorization, and responds to the POS with the approval/decline and then the token which may be used to reference and initiate future related transactions.

eMSR is a highly secure magnetic stripe reader, attaching to a personal computer, dealer management systems (DMS) or point-of-sale (POS), to encrypt cardholder data at the time of card swipe. The encryption methodology and key are under FreedomPay control to secure the data as it moves through the Client’s payment environment and to FreedomPay’s PCI Level 1 compliant data centers where decryption of the data occurs, providing point-to-point encryption (P2PE).

P2PE eKey provisions an identical level of encryption as described in above for eMSR with the addition of encrypted manual entry through a secure keyboard.

GATEWAY PRODUCT ADDENDUM

1. SERVICES – Gateway Services utilizing FreedomPay’s hosted transaction engine Gateway Services utilizing FreedomPay’s hosted transaction engine, FreeWay™ to route transactions from Client’s supported point-of-sale to Client’s acquiring or host processing partner for the sales capture and payment authorization and settlement of payment card transactions and/or to route incentive/loyalty transactions to FreedomPay host for processing.

2. FEES – Client agrees to pay a Per Location Setup Fee and Transaction Fees as defined in the client’s contract. The monthly fees billed shall be the greater of the total number of monthly transactions times the per transaction rate or the monthly minimum fee.

VIRTUAL TERMINAL PRODUCT ADDENDUM

1. SERVICES – Client is purchasing license to utilize FreedomPay Virtual Terminal, a secure solution for processing all credit and debit cards through a Web browser. The Virtual Terminal allows unit operators to securely process credit card payments across the enterprise, and combine all payment forms with detailed reporting for billing Virtual Terminal Platinum allows for entry and capture of line item detail for purchase ticket whereas Basic allows for only entry and capture of ticket total amounts. One subscription allows one (1) user access to the Virtual Terminal per Client location.

2. FEES – Client agrees to pay a Per Location Setup Fee and a License Fee as defined in the client’s contract.