1. Definitions
   • "Add-On Service" shall mean an additional service for use in conjunction with the Services that are subject to additional fees and additional terms and conditions governing use. The terms and conditions for Add-On Services that are made generally available to merchants by VeriSign and for which a Merchant may enroll for are set forth in an attachment to this Exhibit.
   • "Financial Institution" shall mean one or more of VeriSign's pre-approved banks or financial institutions, which has agreed to evaluate and provide merchant accounts to enable merchants to perform online payment transactions using the Services.
   • "Services" shall mean the VeriSign’s Payflow LinkSM or Payflow ProSM services used by Merchant and any Add-On Services specific ally described in the Terms. Current descriptions of the Payflow LinkSM and Payflow ProSM services can be found at the URL: http://www.verisign.com/payment/payflow.html (for the Payflow Link services) or http://www.verisign.com/payment/payflowpro.html (for the Payflow Pro services).
   • "Software" shall mean the object code version of VeriSign's client Software Development Kit ("SDK"), HTML code, application programming interfaces (APIs), related documentation and other client software or code which VeriSign provides to Merchant, including updates, to enable VeriSign to provide the Services to Merchant. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to VeriSign and is licensed to Merchant under a separate SDK License Agreement at the time of download.
   • "Transaction" shall mean information related to the purchase of goods and services from Merchant by a third party. Specifically a Transaction is an authorization, delayed capture, sale or credit data transmission between VeriSign and its back end processors.
2. Merchant Obligations. Merchant shall be solely responsible for:
   1. Establishing, hosting and maintenance of its Web site(s) and its connection to the Internet (the “Merchant Web Site(s)”), fulfilling all orders for products and services sold by Merchant to its users on the Merchant Web Site(s) or otherwise, including without limitation transmitting Merchant’s registration information and Transaction data to VeriSign servers via the VeriSign web site and ensuring that the data transmitted in conjunction with the Services and for enrollment for the Services is accurate, complete and in the form as requested by VeriSign, and is not corrupted due to Merchant’s systems. Merchant is also responsible for reviewing the Transactions in its account on a regular basis and notifying VeriSign promptly of suspected unauthorized activity through its account;
   2. Unless the VeriSign authorized reseller is responsible for such function, displaying a web page to users purchasing products or services from Merchant that provides the user with an acknowledgement that a Transaction has been completed and secured by VeriSign (the "Acknowledgment Page"). Merchant agrees that in addition to Merchant’s branding on the Acknowledgement Page, the Acknowledgement Page will include the relevant VeriSign logo, provided by VeriSign to Merchant, such logo to be a hypertext link to the URL: http://seal.verisign.com/payment (the "VeriSign Site") or other web site reasonably designated by VeriSign, and the text "VeriSign has routed, processed and secured your payment information. More information about VeriSign". The underlined text shall also be a hypertext link to the VeriSign Site or other site designated by VeriSign. Merchant agrees that the VeriSign Logo and the foregoing text will appear at the top of the Acknowledgement Page (but below Merchant’s branding) and users will not be required to scroll left, right, up or down to view the VeriSign Logo or such text. VeriSign hereby grants Merchant the rights to use the relevant VeriSign Logo, name and link to the VeriSign Site as necessary to carry out the obligations of this section 3.2 and in accordance with any trademark usage guidelines on VeriSign’s web site or as provided to Merchant by VeriSign from time to time upon reasonable notice.
   3. Establishing and maintaining a commercial banking relationship with one or more Financial Institutions. The terms of such relationship shall be determined solely by Merchant and the Financial Institution and will not necessarily reflect or incorporate terms that VeriSign may have separately and independently negotiated with Financial Institutions;
   4. Keeping its user name and password confidential. Merchant shall notify VeriSign immediately upon learning of any unauthorized use of its user name or password;
   5. Maintaining commercially reasonable business practices in conjunction with use of the Services, ensuring the security and privacy of its customer data and complying with all applicable laws and regulations with respect to its use of the Services. Merchant represents and warrants that it shall comply with all applicable privacy, consumer and other laws and regulations with respect to its (i) provision, use and disclosure of the Data; (ii) dealings with the users providing the Data; and (iii) use of the Services; and
   6. Updating to the most current Software and comply with VeriSign requests for reasonable action on Merchant’s part, to the extent necessary, to maintain security and integrity of the Services.
3. Services. Subject to the provisions of the Terms, and provided VeriSign receives payment for the applicable Services from the VeriSign authorized reseller on Merchant’s behalf, VeriSign agrees to (i) provide to Merchant the Services requested and used by Merchant, including without limitation the transmission of Transaction information to financial processors with whom VeriSign has established a relationship, and (ii) provide Merchant with access to standardized reports regarding Merchant's Transactions processed using the Services and certain reporting tools to assist Merchant in accounting activities. VeriSign hereby grants to Merchant the right to access and use the Services in accordance with the Terms.
4. Changes to Services. VeriSign may modify the Services from time to time in VeriSign's reasonable discretion and upon reasonable electronic or written notice to Merchant, provided that such modifications shall not materially diminish the functionality of the Services.
5. Support. Unless otherwise agreed in writing by VeriSign, Merchant shall obtain customer support from its VeriSign authorized reseller.
6. Termination. VeriSign may suspend the performance of the Services (i) following ten (10) days prior electronic or written notice (including an overdue invoice) if Merchant is violating applicable law, perpetrating fraud or causing (or failing to fix) a security breach relating to the Services, failing to respond to an inquiry from VeriSign concerning the accuracy or completeness of the information Merchant is required to provide pursuant to this Agreement or if VeriSign reasonably suspects fraudulent activity on Merchant’s payment services account; and (ii) on (1) day’s written or electronic notice if it reasonably believes Merchant is sending data that corrupts or jeopardizes VeriSign’s computer systems or Merchant’s financial processor or Financial Institution with which Merchant has a merchant account requires such suspension. VeriSign may terminate the Agreement on thirty (30) days prior written or electronic notice if Merchant is in breach of the Agreement (if such breach is not cured within such 30-day period). Additionally, VeriSign may immediately suspend the Services to Merchant, without prior notice, until VeriSign has received the fees due for the applicable Services. In the event that the VeriSign authorized reseller with which Merchant has entered into a business relationship for the Services ceases to be an authorized reseller of VeriSign, Merchant may continue to access the Services as mutually agreed by Merchant and VeriSign. Notwithstanding the foregoing, the provisions of Sections 7 and 9-13 will survive any termination of this Agreement.
7. Other Services. Merchant's use of VeriSign services other than those paid for by Merchant directly to VeriSign or to an authorized reseller of VeriSign shall be subject to Merchant's payment of additional fees, and Merchant will be invoiced for the standard fees associated with such services. Invoices are payable net-30 days from date of receipt by Merchant. This includes “Add-On Services”.
8. Warranty Disclaimer. VERISIGN MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES PROVIDED PURSUANT TO THE TERMS, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY VERISIGN. MERCHANT ACKNOWLEDGES THAT VERISIGN HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES.
9. Indemnification. Merchant will indemnify, defend and hold harmless VeriSign, its officers, directors, agents and employees, from and against any and all claims, losses, demands, liabilities, damages, costs and expenses (including reasonable attorneys' fees), either arising out of or relating to (i) the breach of any representation or warranty by Merchant, (ii) the sale or use of any product or services sold by Merchant, (iii) claims brought or damages suffered by any Financial Institution, customer, or prospective customer of Merchant relating to Merchant's or its agents' misuse of the Services or (iv) the breach of the Terms or any representation or warranty by Merchant.
10. Limitation of Liability. Merchant acknowledges that VeriSign is not a financial or credit reporting institution. VeriSign is responsible only for providing data transmission to effect certain payment authorizations for Merchant and is not responsible for the results of any credit inquiry, the operation of web sites of ISPs or Financial Institutions or the availability or performance of the Internet, or for any damages or costs Merchant suffers or incurs as a result of any instructions given, actions taken or omissions made by Merchant, Merchant's financial processor(s), Merchant's Financial Institution or any ISP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VERISIGN HAVE ANY LIABILITY TO MERCHANT OR ANY OTHER THIRD PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, INJURY TO ANY CUSTOMER RELATIONSHIP, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THE TERMS, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER VERISIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ANY CASE, VERISIGN'S ENTIRE LIABILITY UNDER ANY PROVISION OF THE TERMS SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL OF THE FEES PAID TO VERISIGN ON BEHALF OF MERCHANT FOR THE SERVICES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. Privacy. VeriSign will capture certain transaction and user information (collectively, the "Data"). You agree to provide to VeriSign, and VeriSign shall capture, only the Data that is required by the Payment Software and is necessary for VeriSign to provide the Services. VeriSign shall not disclose Data to third parties or use the Data, except that VeriSign shall have the rights (i) to use the Data as necessary to perform the Services contemplated in the Terms (including distributing the Data to third parties providing services requested by you); (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes; and (iii) to provide the Data as required by law or court order, or to defend VeriSign's rights in a legal dispute.
12. Miscellaneous. The Terms shall be governed by the laws of the State of California, U.S.A. (irrespective of its choice of law principles). The parties agree that the Terms are made and performed in Santa Clara County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms. If any provision of the Terms shall be deemed invalid or unenforceable, in whole or in part, the Terms shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties. Neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to causes beyond its reasonable control. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of the Terms at a subsequent time. Only a writing signed by VeriSign may amend any provision of the Terms. The relationship of VeriSign and Merchant is that of independent contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint venturers of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation. No provisions of the Terms are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party. Notwithstanding the foregoing, VeriSign's suppliers of Services delivered hereunder shall enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such product(s), as does VeriSign. The Terms constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings between the parties with respect to the products and services licensed and/or used by Merchant hereunder, including without limitation any Add-On Services; except for written agreements between Merchant and its VeriSign authorized reseller relating to the Services excluding any Add-On Services. Merchant acknowledges and agrees that it shall not import, export, or re-export directly or indirectly, any commodity, including Merchant's products incorporating or using any VeriSign products in violation of the laws and regulations of any applicable jurisdiction.