ATTACHMENT 5.pdf

Mutual Nondisclosure and Nonuse Agreement v1-13

In order to protect certain Confidential Information (as defined below), Vantiv, LLC, a Delaware limited liability company, for itself and its divisions, subsidiaries and affiliates (all, collectively “Vantiv”), and the undersigned legal entity, for itself and its divisions, subsidiaries, and affiliates (all, collectively “Participant”), individually referred to as a “Party” and collectively referred to as the “Parties”, agree that:

1. Effective Date. The Effective Date of this Mutual Nondisclosure and Nonuse Agreement (the “Agreement”) shall be the date executed by Vantiv.

2. Mutual Agreement. The Agreement shall apply to all Confidential Information disclosed between the Parties.

3. Term. The term of this Agreement shall commence on the Effective Date and remain in full force and effect until terminated by either Party by providing written notice to the other Party. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential Information that is disclosed prior to the effective date of termination.

4. Confidential Information. For the purposes of this Agreement, “Confidential Information” shall mean:

product and roadmap information, marketing plans, business plans, operations plans, financial information, pricing information, customer or vendor lists, customer and vendor data, training manuals, trade secrets, processes, procedures, contracts, terms, proposals, presentations, plans, protocols, standards, accounts, specifications, formats, documents, records, drawings, samples, sketches, objects, designs, lists, software, hardware, source code, schematics, diagrams, flowcharts, screens, applications, data, know-how, research and development, ideas, inventions, patent disclosures and any and all other information disclosed from one Party to another that could be reasonably determined to be proprietary or confidential information.

Confidential Information may be disclosed between the Parties whether in written, oral, visual, electronic, website-based, or other form including but not limited to Confidential Information directly or indirectly and intentionally or unintentionally acquired during any conversations, visits, presentations, or facilities tours.

5. Purpose and Permitted Use. The Parties receiving Confidential Information (each, a “Recipient”) from the other Party disclosing Confidential Information (each, a “Discloser”) will use the Confidential Information only for the purpose of and in connection with the Parties’ business relationship or for the purpose of evaluating a potential business relationship. A Recipient will use at least the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar information to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement; (b) dissemination of Confidential Information to any employee, contractor, and/or agent of Recipient without a need to know and who are not subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement; (c) communication or other disclosure of Confidential

Information to any third party, or (d) publication of any Confidential Information.

6. Return or Destruction of Information. A Recipient, upon Discloser’s written request, will promptly return all Confidential Information received from the Discloser, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed.

7. Exclusions. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was already in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without a duty of confidentiality; (d) is disclosed by the Discloser to a third party without a duty of confidentiality on the third party; (e) is independently developed by the Recipient without a breach of this Agreement; or (f) is disclosed by the Recipient with the Discloser’s prior written approval. If a Recipient is required by a government body or court of law to disclose Confidential Information, the Recipient agrees to give the Discloser reasonable advance notice (except where such prior notice to Discloser is or would be prohibited by a government regulator or government agency) so that Discloser may contest the disclosure or seek a protective order.

8. Disclaimers. Each Discloser warrants that it has the right to disclose its Confidential Information. No other warranties are made and no responsibility or liability is or will be accepted by either Party as to the accuracy or completeness of the Confidential Information. All Confidential Information is provided “As Is”.

9. No Obligation. This Agreement imposes no obligation on a Party to exchange Confidential Information or to purchase, sell, license, transfer or otherwise make use of any technology, services or products.

10. Export Compliance. A Recipient will adhere to all applicable United States and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government.

11. Ownership. The Recipient acquires no intellectual property rights in the Confidential Information disclosed by the Discloser under this Agreement except the limited rights necessary to carry out the purpose as set forth in this Agreement. Subject to the obligations of this Agreement, neither Party will be precluded from independently developing technology or pursuing business opportunities similar to those covered by this Agreement. Each Party retains sole discretion to assign or reassign the job responsibilities of its employees.

12. Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured Party may be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity.

13. Governing Law. THIS AGREEMENT IS MADE

UNDER, AND WILL BE CONSTRUED ACCORDING

TO, THE LAWS OF THE STATE OF OHIO. The Parties irrevocably agree: (i) that exclusive jurisdiction and venue for any and all claims, controversies, disputes, and causes of actions arising out of or related to this Agreement shall be in the appropriate state or federal court in Hamilton County, Ohio; (ii) service of process may be made and personal jurisdiction over a Party may be obtained by serving a copy of the Summons and Complaint upon such Party at its address set forth in this Agreement; and (iii) A WAIVER OF TRIAL BY JURY.

14. Severability. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this Agreement shall remain valid and enforceable to the maximum extent compatible with existing law.

15. Miscellaneous. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such Confidential Information against any and all Recipients of such Confidential Information. This Agreement does not create any agency or partnership relationship. This Agreement will not be assignable or transferable by Participant without the prior written consent of Vantiv. All additions or modifications to this Agreement must be made in writing and signed by the Party against whom enforcement is sought. Vantiv and Participant acknowledge and agree that Participant may have confidentiality obligations pursuant to other agreements with Vantiv. It is understood and agreed that the terms of this Agreement are intended to be a supplement to such terms and conditions and that, in the event of a conflict between such provisions, the provisions imposing the higher degree of protection regarding confidentiality and nondisclosure shall apply. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of execution. This Agreement may be executed in counterparts. Each undersigned below warrants and represents that he or she is a duly authorized representative of the legal entity on behalf of which he or she is executing this Agreement.

16. Registration. Participant acknowledges and agrees that in the event Participant is deemed or considered an Independent Sales Organization (“ISO”) a Merchant

Services Provider (“MSP”), or any other related designation under any applicable Rules, Participant shall complete any and all requirements for registration and shall be solely responsible for any and all applicable fees, costs, expenses and liabilities associated therewith.

17. Other Obligations. In the event certain Confidential Information of Vantiv is used or otherwise accessed by Participant’s products or services or by Participant in connection with establishing or supporting any interface or connectivity to Vantiv’s systems (collectively “Products”), the following terms and conditions shall also apply. Participant represents and warrants to Vantiv that it will produce and maintain Products that comply with both (i) the rules, regulations, operating procedures, guidelines and requirements as may be promulgated or amended from time to time (the “Rules”) of VISA USA, Inc., MasterCard International, Inc., Discover, or any other applicable card (EFT, debit, credit, EBT) association (collectively, “Association”), including but not limited to the Payment Card Industry Data Security Standard (“PCI DSS”) and (ii) all applicable laws, regulations, and court orders (collectively, the “Laws”).

Participant represents and warrants not only (i) that use of any Participant software application or module by a Vantiv merchant (a “Merchant”) would not prohibit a Merchant from meeting the requirements of the Cardholder Information Security Program (“CISP”) but also (ii) that all Products are certified as in compliance with the Payment Application Data Security Standard (“PA-DSS”) as promulgated by the Association. Without limiting the foregoing, in the event that any of Participant’s Products are not certified as PA-DSS compliant or are not in compliance with the Rules or the Laws, Participant will bring such Products into compliance as soon as commercially possible.

Notwithstanding any provision to the contrary contained herein, Participant agrees to indemnify, defend and hold harmless Vantiv from and against any and all losses, damages, costs, fees (including but not limited to Association fines, fees, penalties, and assessments), demands, claims, causes of action or suits of any kind or nature related to the Products resulting from Participant’s failure to comply with the terms and conditions of this paragraph.

______________________________________ VANTIV, LLC

(“Participant”)

Signature: Signature:

Name: Name:

Title: Title:

Address: Address: 8500 Governors Hill Dr, Maildrop 1GH1Y1

City, ST ZIP: City, ST ZIP: Symmes Twp, OH 45249-1384

Date: Date: