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INDEPENDENT CONTRACTOR AGREEMENT

            This Independent Contractor Agreement (“Agreement”) is made effective as of the date set forth below by and between GAM Payments, LLC (“GAM Payments”) located at P. O. Box 1459, Mountainside, New Jersey 07092 and the entity and/or individual whose name and address are set forth below on the signature page for this Agreement (hereinafter referred to as “Independent Contractor”). GAM Payments will not accept any alterations or strike outs to this Agreement and, if made, any such strike outs or alterations shall not apply.

RECITALS

WHEREAS, Independent Contractor engages in the business of marketing services to business entities that accept credit cards as payment for goods and services; and

WHEREAS, GAM Payments wishes to expand its market share by retaining Independent Contractor to assist in marketing its credit card, debit card, ACH payments, gift card, loyalty card, leasing, POS equipment, software and related goods and services (the “GAM Payments Services”) and Independent Contractor wishes to undertake certain duties and responsibilities for marketing the GAM Payments Services.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

SECTION ONE – MARKETING THE GAM Payments SERVICES

1.01.  Appointment.  Subject to the terms and conditions of this Agreement, GAM Payments hereby appoints Independent Contractor as a reseller of the GAM Payments Services.  In connection with such appointment, GAM Payments grants Independent Contractor a non-exclusive, non-transferable right to promote, market and solicit orders for the GAM Payments Services from businesses wishing to utilize the GAM Payments Services (“Merchants”).  Independent Contractor shall identify prospective Merchants that meet GAM Payments criteria as set forth in this Agreement and its general policies and procedures. Independent Contractor will obtain all information and documentation reasonably required by GAM Payments.  Independent Contractor shall promptly provide GAM Payments with the current address of each of its offices and the offices of its agents.  Independent Contractor’s agents must go through any training required by GAM Payments.

1.02.  Approval of Merchants.  Independent Contractor acknowledges that all Merchants are to be approved by GAM Payments and its vendors in their sole discretion and Merchants will be able to utilize the GAM Payments Services effective only upon such approval.  Therefore, Independent Contractor will not make any promise to or create any impression with a prospective Merchant that it will be approved prior to review and approval.  Further, Independent Contractor acknowledges that all aspects of the GAM Payments Services are subject to the management and approval of GAM Payments and its vendors and Independent Contractor shall make no representations to the contrary.

1.03.  GAM Payments Services Agreement.  Merchants will be presented by GAM Payments or Independent Contractor with an online or written application and/or agreement that will govern the relationship between the Merchants, GAM Payments and its vendors in regard to the GAM Payments Services (“Merchant Agreement”).  Independent Contractor shall use only that form of Merchant Agreement that has been approved and supplied by GAM Payments.  Independent Contractor shall not make any changes or modifications to any Merchant Agreement without the prior written consent of GAM Payments.  GAM Payments reserves the right to amend or change in any manner the agreements between Merchants, GAM Payments, and its vendors to be used by Independent Contractor, including changes to any and all fees due from Merchants. No compensation shall be paid to Independent Contractor by GAM Payments unless and until the Merchant Agreement has been received and accepted by GAM Payments and all other requirements of GAM Payments policies and procedures to this Agreement have been met.

1.04.  Acceptable Merchants.  Independent Contractor shall market the GAM Payments Services only to bona fide and lawful businesses and in accordance with GAM Payments and its vendors’ policies, procedures and standards and this Agreement.  Further, Independent Contractor shall promptly notify GAM Payments in writing of any adverse information that Independent Contractor receives relating to a Merchant, including information regarding a Merchant’s financial condition or any other information relating to Merchant that would have a material effect on Merchant’s ability to conform to the terms of its agreements.

1.05.  Independent Contractors.   The relationship of GAM Payments and Independent Contractor is that of independent contractors.  Neither Independent Contractor nor Independent Contractor’s employees, consultants, contractors or agents are agents, employees, partners or joint ventures of GAM Payments, nor do they have any authority to bind GAM Payments by contract or otherwise to any obligation.  They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

1.06.  Compliance With Laws/Marketing Materials.  Independent Contractor agrees to comply with the rules and regulations of Visa, MasterCard, Discover, American Express and all other such associations, as they may exist from time to time, and the rules and regulations of any debit network or federal or state department or agency having jurisdiction over the activities of GAM Payments or Independent Contractor (“Rules”).  In the event of any inconsistency between any provision of this Agreement and the Rules, the Rules shall govern.  Independent Contractor hereby agrees to accept and abide by any amendments and revisions to the Rules. Independent Contractor will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the GAM Payments Services.  Independent Contractor shall use only those marketing and promotional materials that comply with the Rules and all United States, state, local and any other applicable laws or regulations. Independent Contractor agrees that MasterCard and Visa each have the right, either in law or in equity, to enforce any provision of the Rules and to prohibit Independent Contractor’s conduct that creates a risk of injury to Visa or MasterCard or that may adversely affect the integrity of MasterCard or Visa systems, information, or both.  Independent Contractor will refrain from taking any action that would have the effect of interfering with or preventing an exercise of such right by MasterCard or Visa.

1.07.  Independent Contractor Covenants.  Independent Contractor will: (i) conduct business in a manner that reflects favorably at all times on the GAM Payments Services and the good name, good will and reputation of GAM Payments; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to GAM Payments, the GAM Payments Services or the public; (iii) make no false or misleading representations with regard to GAM Payments or the GAM Payments Services; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to GAM Payments or the GAM Payments Services; (v) promote proper use of GAM Payments Services, and (vi) make no representation, warranties or guarantees to potential Merchants with respect to the specifications, features or capabilities of the GAM Payments Services that are inconsistent with the literature distributed by GAM Payments.

1.08.  Registration.  (a) In the event that Independent Contractor chooses to market the GAM Payments Services under Independent Contractor’s own company name or brand, Independent Contractor will request that GAM Payments provide access to registration.  Independent Contractor acknowledges that authorization for registration as an ISO (Visa) or MSP (MasterCard) is at the discretion of GAM Payments vendors.  Independent Contractor agrees that GAM Payments is not responsible for Independent Contractor’s acceptability as an ISO or MSP and that GAM Payments will only act as a conduit to assist Independent Contractor in the registration process.  In the event that Independent Contractor’s application for ISO or MSP status is denied, Independent Contractor acknowledges that this Agreement shall remain valid.  [MRM1]

(b)  Independent Contractor agrees and understands that in the event Independent Contractor does not become a registered ISO/MSP, Independent Contractor MUST market all GAM Payments Services under one of GAM Payments brand names.  In such case, Independent Contractor shall answer all phones and present business cards, letterhead, brochures, marketing materials and especially its website with one of the names owned by GAM Payments.

(c)  Independent Contractor shall not alter any Merchant Agreement or merchant application, including, but not limited to, by removing any logos or identifying information.

(d)  Independent Contractor shall ensure that any entity hired by Independent Contractor to perform sales for Independent Contractor shall execute documents and become registered representatives of GAM Payments prior to marketing GAM Payments Services.

1.09.  Use of the Marks.  Independent Contractor may use the trademarks and service marks of GAM Payments, Visa, MasterCard, Discover, American Express and all other such associations (“the “Marks”) only in promoting the GAM Payments Services in conformance with the Rules subject to the sole discretion and approval of GAM Payments.  Upon termination of this Agreement, Independent Contractor agrees that it shall no longer use the Marks or anything similar thereto.  Notwithstanding anything to the contrary contained herein, nothing stated herein shall be construed as granting Independent Contractor any right, title and interest in and to the Marks or the goodwill associated therewith, and Independent Contractor acknowledges that it will not, at any time, during or subsequent to the term of this Agreement, do or cause to be done, any act or thing contesting or in any way impairing or intending to impair any part of the right, title and interest and the goodwill represented by the Marks or impugn in any fashion the reputation of GAM Payments or attack the validity of the Marks.

 

SECTION TWO – THE SERVICES

2.01.   Exclusive Services.  During the term of this Agreement, Independent Contractor, its principals and its affiliates shall not enter into any agreement to solicit Merchants for the merchant-acquiring program of any bank, company, Independent Contractor or financial institution other than GAM Payments, including a direct relationship with any of GAM Payments’ vendors, without GAM Payments’ prior written consent, nor shall Independent Contractor, its principals or any of its affiliates enter into any relationship with any organization or entity that would effect an indirect relationship with any such bank, company, Independent Contractor or financial institution.

2.02.  Ownership of Merchant Agreements and the Merchant Program.  Except for Independent Contractor’s right to be paid residuals as set forth in this Agreement, Independent Contractor acknowledges and agrees that it will have no equity interest, ownership, or other rights in any Merchant Agreement or in the GAM Payments Services provided.  Further, Independent Contractor acknowledges and agrees that all Merchant Agreements, Merchant records, documentation, and the information contained therein are the property of and are owned by GAM Payments and/or its vendors.

SECTION THREE – PAYMENT OF FEES

3.01.  Fees.  During any period of time in which this Agreement remains in full force and effect, compensation to Independent Contractor will be paid as set forth in the attached Schedule A which is made a part of this Agreement.  The compensation plan set forth in Schedule A shall be held in strict confidence by Independent Contractor.  GAM Payments shall have the right to change the compensation plan as set forth in Schedule A at any time in its sole discretion by providing thirty (30) days notice to Independent Contractor.  Independent Contractor authorizes GAM Payments to deposit funds directly into Independent Contractor’s authorized GAM Payments deposit account, and GAM Payments will automatically deduct all amounts for Independent Contractor’s obligations under this Agreement.  GAM Payments shall only have to pay Independent Contractor the amounts due to it under this Agreement if GAM Payments is paid by its vendors.  It is further understood and agreed that Independent Contractor shall bear no liability to GAM Payments for the value of any merchant chargebacks ACH rejects, merchant fines, fees or other merchant losses, except to the extent that any such merchant losses are charged by GAM Payments vendors or are either directly or indirectly related or attributable to the fraudulent or grossly negligent conduct of Independent Contractor or any of its employees, agents, representatives, or nominees.   If GAM Payments is not paid any amounts dues by its vendors, it has no duty or obligation to pay any corresponding monies to Independent Contractor.  Independent Contractor shall have sixty (60) days from the receipt of any compensation or residuals to notify GAM Payments of any errors in payment of compensation or residuals.  If Independent Contractor does not notify GAM Payments within the sixty (60) day time period, Independent Contractor shall be deemed to have accepted without question such residual or compensation payment and may not in the future contest the amount it was paid or seek reimbursement for any discrepancies.  Upon receipt of notice, GAM Payments shall have thirty (30) days to correct any errors.

3.02.  Offset Rights, Security Interests.  (a)  GAM Payments shall have the right of offset against any funds credited to or owing from GAM Payments to Independent Contractor for any obligation of Independent Contractor to GAM Payments, including, without limitation, obligations of Independent Contractor under this Agreement and any other agreement with GAM Payments.  This right of offset may be exercised by GAM Payments at any time and without notice to Independent Contractor whether or not the obligations of Independent Contractor to GAM Payments are then due.

(b) Independent Contractor acknowledges and agrees that GAM Payments shall have full recourse against Independent Contractor for: (i) monies owed by Independent Contractor to GAM Payments for any reason whatsoever, including but not limited to equipment, sales, supplies, and/or marketing material, (ii) any errors or inaccuracies in amounts previously paid to Independent Contractor under this Agreement, and (iii) any amounts incurred or advanced by sponsor bank and/or GAM Payments on Independent Contractor’s behalf.  Independent Contractor further agrees such recourse shall not be limited to withholding compensation or debiting the Independent Contractor account but at GAM Payments sole discretion, GAM Payments may initiate other action to recover such monies.

SECTION FOUR – TERM AND TERMINATION

4.01.   Term.   The initial term of this Agreement shall be for a period of three (3) years, commencing on the date first set forth below.  This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than fifteen (15) days prior to the end of the current term that it does not wish to renew this Agreement.

4.02.  Default.  Either party shall have the right to terminate this Agreement at any time if:

(a) the other party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or

(b) the other party (i) except as set forth in (a) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors.

4.03.  Failure to Comply with Rules.  GAM Payments may immediately terminate this Agreement for any material default knowingly or intentionally caused by Independent Contractor with respect to its obligations to comply with GAM Payments policies or Rules if GAM Payments reasonably determines that the default is of such a serious nature that an opportunity to cure such default is not practical or warranted.  GAM Payments may, at its sole discretion, effect such termination upon delivery of written notice to Independent Contractor without regard to any provisions for cure of default.

4.04.  Regulatory Demand.  If Visa, MasterCard, NACHA or any federal, state or other type of regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either GAM Payments or any of its vendors discontinue or substantially modify any of the GAM Payments Services, either party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither party shall be deemed to be in default by reason of such termination.

4.05.  Termination by GAM Payments.  GAM Payments may terminate this Agreement for any reason, or no reason at all, by providing Independent Contractor with seven (7) days notice.

4.06.  Compensation to Independent Contractor Following Termination.  Unless this Agreement is terminated for the reasons as set forth in sections 4.02, 4.03, or 4.04 or after any termination Independent Contractor commits a material breach of the terms of this Agreement that survive the termination of this Agreement, GAM Payments agrees to make payments to Independent Contractor as set forth in this Agreement for any Merchant obtained by GAM Payments through Independent Contractor’s performance of this Agreement for any period of time during which such Merchant continues to generate revenue to GAM Payments.  GAM Payments shall have no further obligation to make any payments to Independent Contractor under this Agreement once Independent Contractor’s monthly payment falls below one hundred dollars ($100.00).

4.07.  Termination of Compensation.  If this Agreement is terminated by GAM Payments under sections 4.02, 4.03 or 4.04 or Independent Contractor commits a material breach of the terms of this Agreement that survive the termination of this Agreement, GAM Payments shall have no further obligations for payment of any compensation to Independent Contractor under this Agreement.

SECTION FIVE – OBLIGATIONS.

5.01.  Confidential Information.  The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the GAM Payments Services and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party.  Confidential Information does not include information that:  (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party.  As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall:  (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.  The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information.  The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.

5.02.  Indemnification.  Independent Contractor agrees to indemnify, defend, and hold harmless GAM Payments, its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of  (i) any failure by the party or any employee, agent or affiliate of the party to comply with the terms of this Agreement; (ii) any warranty or representation made by the party being false or misleading; (iii) any representation or warranty made by the party or any employee or agent of the party to any third person other than as specifically authorized by this Agreement, (iv) the manner or method in which the party performs its services pursuant to this Agreement, (v) negligence of the party or its subcontractors, agents or employees, or (vi) any alleged or actual violations by the party or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or rules.

5.03.  Disclaimer of All Warranties.  THE GAM PAYMENTS SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER.  GAM PAYMENTS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO INDEPENDENT CONTRACTOR AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GAM PAYMENTS OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF GAM PAYMENTS OBLIGATIONS.

5.04.   Limitation of Liability.  GAM PAYMENTS SHALL NOT BE LIABLE TO INDEPENDENT CONTRACTOR OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GAM PAYMENTS SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF GAM PAYMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  UNDER NO CIRCUMSTANCES SHALL GAM PAYMENTS’s TOTAL LIABILITY TO INDEPENDENT CONTRACTOR OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

5.05.  Taxes.  Independent Contractor shall pay, indemnify and hold GAM Payments harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on GAM Payments income, and (ii) all government permit fees, customs fees and similar fees which GAM Payments may incur with respect to this Agreement.  Such taxes, fees and duties paid by Independent Contractor shall not be considered a part of, a deduction from, or an offset against, payments due to GAM Payments hereunder.

5.06.  Independent Contractor represents and warrants to GAM Payments as follows:

(a)        Independent Contractor has the full power and authority to execute, deliver and perform this Agreement.  This Agreement is valid, binding and enforceable against Independent Contractor in accordance with its terms and no provision requiring Independent Contractor’s performance is in conflict with Independent Contractor’s obligations under any charter or any other agreement (of whatever form or subject) to which Independent Contractor is a party or by which it is bound.

(b)        If other than a sole proprietorship, Independent Contractor is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Independent Contractor’s business make such authorization necessary or required.

(c)        Except as otherwise disclosed in writing by Independent Contractor to GAM Payments on or before the effectiveness of this Agreement, neither Independent Contractor nor any principal has been subject to any (i) criminal conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal Revenue Service liens; (iv) federal or state regulatory administrative or enforcement proceedings; or (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices.

5.07.  Data Security Compliance.  Independent Contractor agrees to comply with privacy and security requirements under the Payment Card Industry Data Security Standard (“Association Requirements”) with regards to Independent Contractor’s use, access, and storage of certain credit card non-public personal information (“Cardholder Information”) on behalf of GAM Payments.  Visa, MasterCard, Discover, American Express, any ATM or Debit Networks, and the other financial service card organizations shall be collectively known herein as “Associations.” Independent Contractor shall comply with its obligations under any applicable state or federal law or regulations as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of Cardholder Information.  Independent Contractor agrees that it shall protect the privacy of Cardholder Information to at least the same extent that GAM Payments must maintain that confidentiality under the Association Requirements or applicable law.  Independent Contractor agrees to ensure that any agent, including a subcontractor, to whom it provides Cardholder Information received from, or created or received by Independent Contractor on behalf of GAM Payments, agrees to the same restrictions and conditions that apply through this Agreement to Independent Contractor with respect to such information. Upon five (5) business days notice or immediately upon any unauthorized access to, use or disclosure of any Cardholder Information, GAM Payments may at its discretion, conduct an on-site audit and review of Independent Contractor’s procedures and systems.

5.08.  Non-Solicitation of Merchants. Without GAM Payments prior written consent (which consent may be withheld in GAM Payments’ sole and absolute discretion), Independent Contractor shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the GAM Payments Services to any Merchant that has been accepted by GAM Payments; (ii) to solicit or otherwise cause any Merchant that has been accepted by GAM Payments or its vendors to terminate its participation in any of the GAM Payments Services; or (iii) to solicit or market services to any Merchant that is already directly or indirectly provided any of the GAM Payments Services by GAM Payments, whether or not such are provided under the terms of this Agreement.  This section shall apply during the term of this Agreement and for five (5) years after any termination, cancellation or expiration of this Agreement.  Independent Contractor will remain responsible for resulting damages from such prohibited solicitation.

5.09.  Non-Solicitation.  (a)     During the period that this Agreement is in effect and for the five (5) year period immediately following termination cancelation or expiration of this Agreement, Independent Contractor shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, GAM Payments or its subsidiaries to leave the employ of, or consultancy to, GAM Payments or its subsidiaries, or in any way interfere with the relationship between GAM Payments or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, GAM Payments or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the prior written consent of GAM Payments (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or service any customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation of GAM Payments or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with GAM Payments or its subsidiaries, or in any way interfere with the relationship between any such customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation and GAM Payments or its subsidiaries (including, without limitation, making any negative statements or communications about GAM Payments or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of GAM Payments customers, referral partners, affiliates, agents and vendors on whom Independent Contractor called or with whom Independent Contractor became acquainted during its contractual relationship with GAM Payments, either on its behalf or that of another person, firm, or corporation.

(b)        If, at the time of enforcement of the covenants contained in this section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law.  Independent Contractor agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of GAM Payments businesses and agrees not to challenge the validity or enforceability of the Protective Covenants.

5.10.  Intellectual Property.  “Intellectual Property” means all of the following owned by a party:  (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names.  The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.”  Other than the express licenses granted by this Agreement, GAM Payments grants no right or license to Independent Contractor by implication, estoppel or otherwise to the GAM Payments Services or any Intellectual Property Rights of GAM Payments.  Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of GAM Payments, in the GAM Payments Services) and all Intellectual Property rights therein, subject only to the rights and licenses specifically granted herein.  GAM Payments (and not Independent Contractor) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the GAM Payments Services and any Intellectual Property Rights incorporated therein.  Independent Contractor will cooperate with GAM Payments in pursuing such protection, including without limitation executing and delivering to GAM Payments such instruments as may be required to register or perfect GAM Payments interests in any Intellectual Property Rights and any assignments thereof.  Independent Contractor shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from GAM Payments in connection with this Agreement.

SECTION SIX  – GENERAL PROVISIONS

6.01.  Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.

6.02.  Drafting.  No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question.  All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein.  This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly.

6.03  Waiver.  No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.  Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

6.04.  Assignment.  Neither party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other party; provided, however, GAM Payments may assign this Agreement and its rights and obligations hereunder to a purchaser of all or substantially all of its assets or equity.  Notwithstanding any other provisions in this Agreement, Independent Contractor, if an individual, upon the occurrence of his/her death may assign this Agreement including, but not limited to his/her rights to residuals and obligations under this Agreement by will, trust or any other method to anyone she/he chooses in his/her sole and absolute discretion.  Notwithstanding any other provisions in this Agreement, Independent Contractor may assign or sell its rights to its compensation under this Agreement to a third party; provided however, GAM Payments shall first have the right to purchase such compensation rights from Independent Contractor. In the event Independent Contractor seeks to sell its right to compensation to a third party, it shall provide GAM Payments with written notice of the material terms of the third party offer, and GAM Payments shall have thirty (30) days within which to notify Independent Contractor if it will match said third party offer.  If GAM Payments elects to match the third party offer, Independent Contractor shall sell its rights to compensation to GAM Payments.  In the event GAM Payments does not elect to exercise this right of first refusal, Independent Contractor may sell Independent Contractor’s compensation to the third party offeror on the same terms and conditions as set forth in the written notice to GAM Payments.

6.05.  Amendments.  Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties.

6.06.  Notices.  All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein.

6.07.  Section Headings.  The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement.

6.08.  Counterparts/Facsimile Signatures.  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or other means of electronic transmission (including .pdf files) pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes.

6.09.  Entire Agreement; Binding Effect.   This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns.  Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.

6.10.  Dispute Resolution.  All disputes arising under or in connection with the Agreement will initially be referred to the senior executives of each party. The senior executives will use their best efforts to resolve the dispute informally and amicably. If, after negotiating for thirty (30) days (or for some longer period if the parties agree), no resolution of the dispute is reached by the senior executives, the parties will submit the dispute to binding arbitration in New Jersey pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and the procedures set forth in paragraph 6.11.

6.11.  Arbitration. All disputes that cannot be resolved pursuant to the internal issue resolution process identified above will be submitted to and settled by final and binding arbitration. The arbitration will take place in New Jersey, and will apply the governing law of this Agreement. The final and binding arbitration will be performed by a panel of three arbitrators in accordance with and subject to the Commercial Arbitration Rules of the AAA then in effect. Following notice of a party’s election to require arbitration, each party will, within thirty (30) days, select one arbitrator; and those two arbitrators will, within thirty (30) days thereafter, select a third arbitrator. If the two arbitrators are unable to agree on a third arbitrator within thirty (30) days, the AAA will, within thirty (30) days thereafter, select the third arbitrator. The decision of the arbitrators will be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitrators will be bound by the warranties, limitations of liability, and other provisions of this Agreement. Notwithstanding the foregoing, each party may seek injunctive relief in a court of competent jurisdiction, where appropriate, to protect its rights pending the outcome of the arbitration.

6.12.  Jurisdiction; Venue; Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey (irrespective of its choice of law principles).  The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in New Jersey.  Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts.

6.13.  Attorney’s Fees.  Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.

6.14.  Guaranty.  Independent Contractor and the principal(s) of Independent Contractor (collectively, “Guarantors”) hereby jointly and severally guarantee indefeasible payment and performance of all obligations (the “Obligations”) of Independent Contractor and principals under this Agreement, as hereafter amended.  Guarantors’ obligations under this section are independent of Independent Contractor’s and principals’ obligations, and a separate action may be brought against Guarantors, whether or not Independent Contractor or principals be joined in such action.  Guarantors authorize GAM Payments, without notice, from time to time and without affecting Guarantors’ liability, to modify the Obligations.  Guarantors waive: any right to require GAM Payments to proceed against a Guarantors or pursue any other remedy; any defense arising by reason of any disability or other defense of Independent Contractor or any principal, or cessation from any cause of Independent Contractor’s or any principal’s liability; any claim that Guarantors’ obligations exceed Independent Contractor’s or any principal’s; until the Obligations have been paid and performed in full, all rights of subrogation and contribution; and any right to enforce any remedy of GAM Payments against Independent Contractor or any principal.  Guarantors acknowledge that Guarantors shall have sole responsibility for obtaining from Independent Contractor and principals information concerning their financial condition.  Guarantors agree to pay all attorneys’ fees and other costs incurred in enforcing this section or the Obligations.

6.15.  Survival.  All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1.09, 2.01, 2.02, 3.01, 3.02, 4.06, 4.07, 5.01, 5.02, 5.03, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09, 5.10, 6.01, 6.02, 6.03, 6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10, 6.11, 6.12, 6.13, 6.14 and this 6.15 shall survive termination of this Agreement.

IN WITNESS THEREOF, this Agreement has been duly executed by the parties hereto, effective as of the date and year first below written.

SCHEDULE A

Residuals will only be paid if collected from the Merchants and GAM Payments vendors and will be paid on the twenty-fifth day of the month following the month of collection.  Independent Contractor shall be paid following amount each month for the services it renders under this Agreement:

Net Income* multiplied by:

 0-8 activated merchant accounts/month; IC’s revenue share will be 50%;

 9+ activated merchant accounts/month; IC’s revenue share will increase to 60% for that month’s residuals.

* “Net Income” equals monthly credit and debit card processing revenue received by GAM Payments attributable to Merchants submitted by Independent Contractor to GAM Payments minus the costs and fees as set for the below in this Schedule A, all other GAM Payments costs and any amounts owed to GAM Payments under this Agreement.  All increases to GAM Payments costs will be passed through to Independent Contractor in this calculation.