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10. Nondisclosure and Confidentiality.
<br /> 10.1. Client will neither disclose,furnish,transfer or otherwise make available the Software or any portion
<br /> thereof to any third party nor duplicate any portion of the Software,except as provided in this Agreement or
<br /> with the prior written consent of FirsTech.
<br /> 10.2. During any term of this Agreement and for a period of five(5)years thereafter,each party agrees not to
<br /> disclose to any third party or to use any Confidential Information of the other without the prior written consent
<br /> of the other party,except: (a)information generally available to the general public without breach of this
<br /> Agreement; (b)information developed independently by the receiving party; (c)information obtained from a
<br /> third party not under any obligation of nondisclosure; and(d)information required to be disclosed by law or
<br /> governmental regulation; provided however,that before making any use or disclosure in reliance on any such
<br /> exceptions,the party that intends to use or disclose such Confidential Information will give at least fifteen (15)
<br /> days' notice,to the extent legally permissible,to the other party specifying the applicable exception(s)and
<br /> circumstances giving rise thereto.
<br /> 10.3. All materials containing Confidential Information will be promptly returned or destroyed upon the written
<br /> request of the disclosing party. Notwithstanding the return or destruction of any Confidential Information,the
<br /> receiving party will continue to be bound by the obligations of confidentiality and other obligations hereunder for
<br /> the period stated herein.
<br /> 11. Miscellaneous Provisions.
<br /> 11.1. Assignment. None of this Agreement,any Services Schedule, nor any rights and obligations
<br /> hereunder,may be assigned by either party without the prior written consent of the other party,which consent
<br /> shall not be unreasonably withheld or delayed; rop vided that, upon prior written notice to the other party,either
<br /> party may make such an assignment to an Affiliate or to a successor of all or substantially all of the assets of
<br /> such party through merger, reorganization,consolidation or acquisition. This Agreement and any Services
<br /> Schedule shall be binding upon and shall inure to the benefit of the parties hereto and their respective
<br /> successors and permitted assigns.
<br /> 11.2. Audits. Client will have the right to inspect and review,on FirsTech's premises,all Customer Payment
<br /> Data that directly relates to Client. Audit rights will be extended to Client or to any representative designated by
<br /> Client. Client will provide reasonable notice of any audit and such audit(s)will occur during normal business
<br /> hours. Any costs incurred by Client while undertaking such audit(s)will be borne solely by Client.
<br /> 11.3. Relationship of the Parties. Client hereby authorizes FirsTech to accept payments on behalf of Client
<br /> for the purpose of fulfilling its obligations hereunder. It is expressly agreed that the parties are independent
<br /> contractors and that the relationship between the parties will not constitute a partnership,joint venture or
<br /> agency. Neither party will have the authority to make any statements,representations or commitments of any
<br /> kind,or to take any action,which will be binding on the other,without the prior written consent of the other.
<br /> 11.4. Force Majeure. Except with respect to the payment of Service Fees, neither Party will be deemed in
<br /> default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are
<br /> delayed, restricted or prevented by reason of any act of God,fire, natural disaster,act of government,strikes or
<br /> labor disputes,epidemic or pandemic,any act of terrorism,act or omission of carriers,including
<br /> telecommunications carriers,inability to provide telecommunications services or Internet services, power or
<br /> supplies,or any other similar act or condition beyond its reasonable control("Force Majeure Event"); provided
<br /> that the party so affected provides prompt notice and uses reasonable efforts to avoid or remove the causes of
<br /> nonperformance and continues performance hereunder immediately after those causes are removed. If any
<br /> Force Majeure Event prevents either party from carrying out its obligations under this Agreement for a period of
<br /> more than thirty(30)days,the other party may terminate this Agreement upon ten(10)days written notice;
<br /> provided, however,that if a Force Majeure Event affects less than all the Payment Outlets,this Agreement may
<br /> be terminated only with respect to the Payment Outlets which are affected. For the duration of any FirsTech
<br /> Force Majeure Event,Client may temporarily obtain services similar to those provided pursuant to this
<br /> Agreement from another party.
<br /> 11.5. Severability. If any provision of this Agreement is held invalid or unenforceable,such provision will be
<br /> deemed deleted from the Agreement and replaced by a valid and enforceable provision which so far as possible
<br /> achieves the parties' intent in agreeing to the original provision. The remaining provisions of the Agreement will
<br /> continue in full force and effect.
<br /> 11.6. Survival. Sections 3.6,4.3., 5, 7,9, 10,and 11 will survive any termination or expiration of this
<br /> Agreement.
<br /> Master Services Agreement -6-
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