Exhibit 10.6


 


Certain
confidential portions of this Exhibit were omitted by means of asterisks in
lieu of the text (the “Mark”). This Exhibit has been filed separately with the
Secretary of the Securities and Exchange Commission without the Mark pursuant to
the Company’s request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933, as amended. 


 


 


PROCESSING SERVICES AGREEMENT


 


 


between


 


 


VITAL PROCESSING SERVICES L.L.C.


 


 


and


 


 


HEARTLAND PAYMENT SYSTEMS, INC.


 


 


dated


 


 


APRIL 1, 2002


 

















 


TABLE OF CONTENTS


	
  PREAMBLE

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
  Average
  Monthly Billing

  	
   

  
	
   

  	
  Confidential Information

  	
   

  
	
   

  	
  Conversion Assistance

  	
   

  
	
   

  	
  Conversion
  Plan

  	
   

  
	
   

  	
  Dispute

  	
   

  
	
   

  	
  Initial
  Term

  	
   

  
	
   

  	
  Merchant Services

  	
   

  
	
   

  	
  Service
  Levels

  	
   

  
	
   

  	
   

  	
   

  
	
  1. OBLIGATIONS OF VITAL PROCESSING
  SERVICES, L.L.C

  	
   

  
	
   

  	
  1.1
  Basic Services

  	
   

  
	
   

  	
  1.2
  Standard of Care

  	
   

  
	
   

  	
  1.3 Conversion Assistance

  	
   

  
	
   

  	
  1.4
  Service Levels

  	
   

  
	
   

  	
  1.5 Compliance with Laws and Regulations

  	
   

  
	
   

  	
  1.6 Implementation Dates

  	
   

  
	
   

  	
  1.7 Custom Code Projects

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2. OBLIGATIONS OF HEARTLAND PAYMENT
  SYSTEMS, INC

  	
   

  
	
   

  	
  2.1 Data and Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3. FEES FOR MERCHANT SERVICES

  	
   

  
	
   

  	
  3.1 Fees and Expenses

  	
   

  
	
   

  	
   

  	
  3.1.1 Manner/Time
  of Payment

  	
   

  
	
   

  	
   

  	
  3.1.2
  Taxes

  	
   

  
	
   

  	
  3.2 Increase in Core Processing Fees

  	
   

  
	
   

  	
  3.3 Minimum Processing Transactions

  	
   

  
	
   

  	
   

  	
  3.3.1 Dial Authorization and Capture Transactions-Exhibit “A”

  	
   

  
	
   

  	
   

  	
  3.3.2 Core Clearing and Settlement Services-Exhibit ‘B”

  	
   

  
	
   

  	
  3.4 Increased Fees and Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  4. TERM OF THE AGREEMENT

  	
   

  
	
   

  	
  4.1
  Initial Term

  	
   

  
	
   

  	
   

  	
  4.1.1
  Renewal

  	
   

  
	
   

  	
  4.2 Termination at End of Initial Term or
  Renewal Term

  	
   

  
	
   

  	
  4.3 Termination by VITAL

  	
   

  
	
   

  	
  4.4 Early Termination by HEARTLAND

  	
   

  
	
   

  	
  4.5 Default and Remedies

  	
   

  
	
   

  	
  4.6 Effect of Termination

  	
   

  
	
   

  	
  4.7
  Deconversion

  	
   

  
	
   

  	
   

  	
  4.7.1 Deconversion Fees

  	
   

  
	
   

  	
   

  	
  4.72 Time of Payment of Deconversion Fee

  	
   

  



 


1

















 


	
   

  	
  4.8 Pricing After Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5. CONFIDENTIAL INFORMATION

  	
   

  
	
   

  	
  5.1 Confidential Information

  	
   

  
	
   

  	
   

  	
  5.1.1
  HEARTLAND’s Confidential Information

  	
   

  
	
   

  	
   

  	
  5.1.2 VITAL’s Confidential Information

  	
   

  
	
   

  	
  5.2 Protection of Confidential Information

  	
   

  
	
   

  	
  5.3 Confidentiality of Agreement

  	
   

  
	
   

  	
  5.4
  Exclusions

  	
   

  
	
   

  	
  5.5 Confidential Information

  	
   

  
	
   

  	
  5.6
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6. INDEMNIFICATION

  	
   

  
	
   

  	
  6.1 VITAL Indemnification

  	
   

  
	
   

  	
  6.2
  HEARTLAND Indemnification

  	
   

  
	
   

  	
  6.3
  Force Majeure/Business Continuity

  	
   

  
	
   

  	
  6.4 Data Transmission

  	
   

  
	
   

  	
  6.5 Operational Breakdowns

  	
   

  
	
   

  	
  6.6
  Errors

  	
   

  
	
   

  	
  6.7 Reliance on HEARTLAND’s Information

  	
   

  
	
   

  	
  6.8 Special Damages

  	
   

  
	
   

  	
  6.9 Limitation of Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7
  NOTICES

  	
   

  
	
   

  	
  7.1
  Address

  	
   

  
	
   

  	
  7.2
  Form of Notice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8. ADDITIONAL PROVISIONS

  	
   

  
	
   

  	
  8.1 Relationship of Parties

  	
   

  
	
   

  	
  8.2
  Assignment

  	
   

  
	
   

  	
  8.3
  Authority

  	
   

  
	
   

  	
  8.4
  Insolvency

  	
   

  
	
   

  	
  8.5
  Waiver

  	
   

  
	
   

  	
  8.6
  Dispute

  	
   

  
	
   

  	
  8.7
  Business Continuity

  	
   

  
	
   

  	
  8.8
  Insurance

  	
   

  
	
   

  	
  8.9 Offsite Storage

  	
   

  
	
   

  	
  8.10
  Property Rights

  	
   

  
	
   

  	
  8.11
  Hiring with Consent

  	
   

  
	
   

  	
  8.12
  Binding Nature

  	
   

  
	
   

  	
  8.13
  Section Headings

  	
   

  
	
   

  	
  8.14
  Entire Agreement

  	
   

  
	
   

  	
  8.15
  Governing Law

  	
   

  
					



 


2

















 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Merchant
  Point-of-Sale Service Descriptions and Pricing (Exhibit A)

  	
   

  
	
  Clearing
  and Settlement (Exhibit B)

  	
   

  
	
  Service
  Levels (Exhibit C)

  	
   

  
			



 


3

















 


THIS AGREEMENT (“Agreement”) is made and
entered into this 1st day of April 2002 by and between VITAL
PROCESSING SERVICES L.L.C. (“VITAL”), of Tempe, AZ, and HEARTLAND PAYMENT
SYSTEMS, INC. (“HEARTLAND”), a Delaware Corporation, and supersedes and
replaces any pre-existing agreement between the parties.


 


PREAMBLE


 


The terms and provisions of this Agreement
provide for the utilization by HEARTLAND of the Merchant Services for card and
merchant authorization services as described in Exhibit “A” hereto and for
merchant accounting and clearing services as described in Exhibit “B” hereto.
Merchant authorization services and merchant accounting and clearing services
are hereinafter referred to as “Merchant Services”. To provide for the use of
the Merchant Services by HEARTLAND and in consideration of the terms and
provisions specified in this Agreement, the parties hereto agree as follows:


 


DEFINITIONS


 


“Average
Monthly Billing” shall have the meaning given in Section 6.9.1


“Confidential
Information” shall have the meaning given in Section 5


“Conversion
Assistance” shall have the meaning given in Section 1.3


“Conversion
Plan” shall have the meaning given in Section 1.3


“Dispute”
shall have the meaning given in Section 8.6


“Initial
Term” shall have the meaning given in Section 4.1


“Merchant
Services” shall have the meaning given in the Preamble


“Service
Levels” shall have the meaning given in Exhibit “C”


 


1.                                       OBLIGATIONS OF VITAL PROCESSING
SERVICES, L.L.C.


 


1.1                                 Basic Services. 
VITAL will make Merchant Services available to HEARTLAND, some or all of
which HEARTLAND presently agrees to use, and others of which VITAL offers to
HEARTLAND for its future use.


 


1.2                                 Standard of Care. 
In performing the Merchant Services contemplated under this Agreement,
and in the selection and use of facilities, equipment, machines and personnel
required for such performance, and in the custody and safekeeping of materials
famished to 


 


1

















 


 


VITAL by HEARTLAND, or acquired by VITAL on behalf of, HEARTLAND in
connection therewith, VITAL shall exercise ordinary care and diligence.


 


1.3                                 Conversion Assistance.  Upon the execution of the Agreement, VITAL agrees to begin the
conversion transition process, if terminals or merchant accounts are to be
converted for Merchant Services, that entails the analysis of HEARTLAND’s
existing merchant data and POS services. At the conclusion of the above
analysis, the parties agree to define the commencement and conclusion dates for
the conversion of HEARTLAND’s merchants and terminals for Merchant Services and
to complete a conversion plan (“Conversion Plan”).


 


1.4                                 Service Levels. 
VITAL agrees to provide or make available the Merchant Services in
accordance with the service levels set forth in Exhibit “C”, attached hereto.


 


1.5                                 Compliance with Laws and Regulations.  In providing Merchant Services to HEARTLAND,
VITAL agrees to comply with VISA and MasterCard bylaws and operating
regulations and federal and state regulations relating to bankcard processing
for HEARTLAND; provided, however, that VITAL shall not be obligated to comply
with the provisions of any state laws, rules or regulations, including changes
made therein, unless HEARTLAND gives notice to VITAL in writing of the
application of such laws, rules and regulations to the performance of Merchant
Services.


 


1.6                                 Implementation Dates.  VITAL will use commercially reasonable efforts to meet reasonable
implementation dates for acquisitions/conversions as required by HEARTLAND.


 


1.7                                 Custom Code Projects.  VITAL will supply information and back-up documentation for
derivation of costs and time estimates for custom-code projects.


 


2.                                       OBLIGATIONS OF HEARTLAND PAYMENT
SYSTEMS, INC.


 


2.1                                 Data and Information.  Insofar as the performance of Merchant Services under this
Agreement by VITAL requires data, documents, information or materials of any
nature to be furnished, in whole or in part, by HEARTLAND or HEARTLAND’s
employees, agents or other representatives, or requires other services to be
performed by HEARTLAND or HEARTLAND’s employees, agents or other
representatives, HEARTLAND hereby agrees to furnish or cause its 


 


2

















 


employees, agents or other
representatives, to furnish all such data, documents, information and
materials, and to perform all such services within such time or times, and in
such form or manner, as is necessary in order to enable VITAL to perform
Merchant Services hereunder in a timely manner.


 


3.                                       FEES FOR MERCHANT SERVICES


 


3.1                                 Fees and Expenses. 
VITAL’s fees for Merchant Services provided hereunder are set forth in
Exhibit “A” and Exhibit “B” attached hereto and made a related part hereof.
VITAL will render a billing statement for all processing fees and expenses
contemplated by this Agreement no later than the fifteenth (15th)
day of the month [or the following business day if the fifteenth (15th)
day falls on a weekend or a holiday] during the term of this Agreement.
HEARTLAND shall designate a HEARTLAND bank account with respect to which VITAL
shall have authority to debit the account for fees and expenses and agrees to
execute the ACH authorization attached hereto as Exhibit “D”. HEARTLAND may
dispute any of the fees and charges invoiced by VITAL by providing written
notice (facsimile accepted) to VITAL no later than the close of business on the
twentieth (20th) day of the month [or the following business day if
the twentieth (20th) falls on a weekend or holiday]. Such written
notice must include a detailed description of the items and amounts disputed as
well as the nature of the dispute. Such written notice shall be sent to the
following address:


 


VITAL PROCESSING SERVICES, L.L.C.

Attention: Billing Department

8320 South Hardy Drive

Tempe, AZ 85284


 


In such event, VITAL will not debit for such
disputed amounts until the dispute is resolved, provided that the amount in
dispute in more than five thousand dollars ($5,000.00). VITAL shall debit
HEARTLAND’s designated account the undisputed amount due on the invoice on the
second (2nd) day of the month after the invoice is issued . In the
event that a portion of the bill is disputed within forty-five (45) days after
billing and VITAL has debited HEARTLAND’s account for such amount, VITAL will
credit HEARTLAND the amount in dispute provided that HEARTLAND notifies VITAL
in writing within the forty-five (45) day period with the specifics about the
amount in dispute and provided that the amount in dispute in more than five
thousand 


 


3

















 


dollars (S5,000.00). All disputes under this Section 3.1 will be
settled pursuant to Section 8.6 of this Agreement.


 


3.1.1                        Manner/Time of Payment. 
VITAL may modify its billing procedures upon ninety (90) days’ notice to
HEARTLAND. Any modification to these procedures will not shorten the period of
time that the fees and expenses are due to VITAL.


 


3.1.2                        Taxes.  It is understood
and agreed between the parties hereto that the fees provided for in this
Agreement are exclusive of any and all applicable taxes or assessments, whether
designated as sales taxes, use taxes, ad valorem taxes, property taxes,
federal, state, local or income taxes or by some other name or designation, and
including any interest or penalties thereon, which may be levied upon or
assessed by any governmental or taxing jurisdiction in connection with the
performance of services hereunder for HEARTLAND or the provision to HEARTLAND
of any equipment necessary for the performance of services hereunder for
HEARTLAND, and exclusive of any expenses which expenses, by the express terms
hereof, are to be paid by HEARTLAND. In the event of the payment of or for any
such tax, assessment or expense by VITAL for HEARTLAND, HEARTLAND shall in turn
pay VITAL for such items.


 


3.2                                 Increase in Core Processing Fees.  The agreed upon fees stated in Exhibit “A”
and Exhibit “B” shall be guaranteed for a period of four (4) years from the
date this Agreement becomes effective except for the services for which VITAL
is a reseller of services, in which instance VITAL will give ninety (90) days’
prior written notice of any price increase that results from a price increase
from the provider of the services.


 


3.3                                 Minimum Processing Transactions.


 


3.3.1                        Dial Authorization and Capture
Transactions–Exhibit “A”.  HEARTLAND
agrees, beginning April 1, 2002, to process a minimum of ********** dial
authorization and capture transactions per year for the first two (2) years of
the Initial Term. HEARTLAND also agrees, beginning April 1, 2004, to
process a minimum of ********** dial authorization and capture transactions per
year for the last two (2) years of the Initial Term. 


 












[****] Represents material
which has been redacted and filed separately with the Commission pursuant to a
request for confidential treatment pursuant to Rule 406 under the Securities
Act of 1933, as amended. 


 


4

















 


Should HEARTLAND fail to meet the minimums
outlined above for any given contract year, the shortfall number of
transactions will be billed by VITAL to HEARTLAND at the applicable transaction
rate, as stated in Exhibit “A” hereto, on HEARTLAND’s first monthly invoice of
the following contract year and will be payable within thirty (30) days.


 


3.3.2                        Clearing and Settlement Services – Exhibit
“B”.  HEARTLAND agrees, beginning
April 1, 2002, to pay VITAL a minimum of ********** in core clearing and
settlement fees per month for the first two (2) years of the Initial Term.
HEARTLAND also agrees beginning April 1, 2004 to pay VITAL a minimum of
********** in core clearing and settlement fees per month for the last two (2)
years of the Initial Term.  Core
clearing and settlement fees are defined in Sections 1.1, 1.2 and 1.3 of
Exhibit “B” hereto. Should HEARTLAND fail to meet the monthly minimums outlined
above, the shortfall will be billed by VITAL to HEARTLAND on HEARTLAND’s
monthly invoice and will be payable within thirty (30) days.


 


3.4                                 Increased Fees and Expenses.  Any other provision herein to the contrary
notwithstanding, the fees and expenses to be paid by HEARTLAND for the Merchant
Services provided herein may be increased to directly offset any increase in
rates charged by any communication service providers, by providers of products
for which VITAL is a reseller or to offset any increase due to a change in
applicable law or the rules, regulations or operating procedures of either
VISA, MasterCard, other supported plans or any applicable federal or state
governmental agency or regulatory authority. Any such change shall become
effective on the same day as the increase in rates charged by the
communications service providers or the providers of products which VITAL
resells or due to change in applicable law, rules, regulations or operating
procedures becomes effective. VITAL shall give HEARTLAND ninety (90) days’
written notice of any increase or the amount of notice that VITAL receives of
such increase if such notice to VITAL is less than ninety (90) days.


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 


5

















 


4.                                       TERM OF THE AGREEMENT


 


4.1                                 Initial Term.  The
term of this Agreement shall begin on April 1, 2002, and shall continue in
full force and effect for a period of four (4) years (“Initial Term”) through
March 31, 2006.


 


4.1.1                        Renewal.  Upon the
expiration of the Initial Term of this Agreement, this Agreement shall be
automatically renewed for consecutive one (1) year terms thereafter (“Renewal
Term”) until and unless terminated as provided in Section 4.2 hereunder.


 


4.2                                 Termination at End of Initial Term or Renewal
Term.  Subject to providing two hundred
seventy (270) days’ prior written notice to VITAL, HEARTLAND may terminate this
Agreement at the end of the Initial Term, or at the end of any Renewal Term.
VITAL may terminate this Agreement at the end of the Initial Term, or at the
end of any Renewal Term, by giving at least two hundred seventy (270) days’
prior written notice to HEARTLAND.


 


4.3                                 Termination by VITAL.  VITAL may terminate this Agreement in the event HEARTLAND fails
to make or adequately and timely provide for the payment of undisputed fees and
expenses due hereunder, but only if VITAL gives HEARTLAND written notice of
such failure and HEARTLAND fails to remedy such failure within thirty (30) days
after its receipt of said notice. Upon the expiration of the thirty (30) day
period provided for above, VITAL may terminate this Agreement by giving
HEARTLAND written notice, which termination shall be effective immediately upon
HEARTLAND’s receipt of such notice. If such failure to pay is remedied by HEARTLAND
within such thirty (30) day period, then this Agreement shall continue as
though no such notice had been given.


 


4.4                                 Early Termination by HEARTLAND.  HEARTLAND may terminate this Agreement at
any time during the Initial Term, or any subsequent Renewal Term, by giving at
least two hundred and seventy (270) days’ prior written notice to VITAL. In the
event HEARTLAND elects to terminate this Agreement without cause, or for
convenience, at any time pursuant to this paragraph, and such termination is effective
before the last day of the Initial Term, or any subsequent Renewal Term,
HEARTLAND shall pay VITAL a termination fee on the date of termination as
VITAL’s sole remedy. The termination fee will be calculated by multiplying the
average of the last three (3) months’ gross billings by the number of months
remaining in the Agreement after the date of termination. For purposes of
calculating the early 


 


6

















 


termination fee, the total fees
for clearing and settlement services shall be the greater of ********** or the
actual average of the previous month’s billings.


 


4.5                                 Default and Remedies.  If either party fails to observe, keep or perform any material
term or condition of this Agreement, except for the service levels which are
addressed in Exhibit “C”, required to be observed, kept or performed by that
party, the other party, in addition to any other rights and remedies it may
have, shall have the right to terminate this Agreement without paying a
termination fee; provided, however, that the party seeking to terminate the
Agreement gives the other party a written notice of such failure claimed to be
a material breach of terms and conditions of this Agreement, and the party
receiving said notice fails to remedy the breach within thirty (30) days after
its receipt of said notice. If the material breach is not remedied by the
defaulting party within the thirty (30) day period provided for above, the
nondefaulting party may terminate this Agreement by giving the defaulting party
written notice effective immediately. If the material breach is remedied by the
defaulting party within such thirty (30) day period, then this Agreement shall
continue as though no such notice had been given.


 


4.6                                 Effect of Termination.  Termination of this Agreement shall not terminate HEARTLAND’s
obligations to pay VITAL fees for all services performed and expenses incurred
under the Agreement prior to the discontinuance of performance of Merchant
Services by VITAL hereunder.


 


4.7                                 Deconversion. 
HEARTLAND agrees to provide VITAL with at least two hundred and seventy
(270) days’ prior written notice of any conversion from VITAL to another
processor. Upon termination, VITAL shall cooperate with HEARTLAND in
transferring processing promptly and smoothly to any other processor designated
by HEARTLAND and VITAL shall make available to such processor all information
VITAL possesses regarding HEARTLAND’s customers and accounts in such form as
HEARTLAND may reasonably request, together with adequate instructions
concerning the format and means of accessing HEARTLAND’s data.


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 


7

















 


4.7.1                        Deconversion Fees. 
Upon each deconversion, HEARTLAND shall pay VITAL a deconversion fee of
********** for each BIN bank number deconverted and pay VITAL at VITAL’s current
per diem or hourly charged rates for all services provided by VITAL and shall
pay VITAL for all expenses actually incurred by VITAL in connection therewith,
including costs of magnetic tapes, disks, punch cards or other storage devices
or media transferred by VITAL.


 


4.7.2                        Time of Payment of Deconversion Fee.  Any payments to be made by HEARTLAND to
VITAL under this Section 4.7 shall be made within thirty (30) days of the
receipt by HEARTLAND of an invoice from VITAL including such fees and expenses.


 


4.8                                 Pricing After Termination.  After the termination date of this
Agreement, the Merchant Services will be provided by VITAL on a month-to-month
basis with no minimums and pricing will be standard tier pricing based on
VITAL’s then-current standard pricing. The standard tier pricing may be raised
by VITAL ten percent (10%) at the end of the initial six (6) months of the
month-to-month and ten percent (10%) every six (6) months thereafter with no
notice to HEARTLAND.


 


5.                                       CONFIDENTIAL INFORMATION


 


5.1                                 Confidential Information.


 


5.1.1                        HEARTLAND’s
Confidential Information.  All
information of a business nature relating to HEARTLAND’s assets, liabilities,
credit programs, customers or other business affairs disclosed to VITAL by
HEARTLAND or disclosed in connection with this Agreement, or known by VITAL as
a result of providing Merchant Services to HEARTLAND (“Confidential
Information”) is confidential.


 


5.1.2                        VITAL’s
Confidential Information.  All
information of a business nature relating to VITAL’s assets, liabilities,
credit programs, customers or other business affairs disclosed to HEARTLAND by
VITAL or disclosed in connection with this Agreement, or known by HEARTLAND as
a result of the provision of Merchant Services by VITAL (“Confidential
Information”) is confidential.


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 


8

















 


5.2                                 Protection of Confidential Information.  Each party shall cause its officers,
employees and agents to take such action as shall be necessary, or advisable,
to preserve and protect the confidentiality of such Confidential Information.
This shall not prohibit each party from disclosing such Confidential
Information to persons required to have access thereto for the performance of
this Agreement, including legal counsel or outside consultants; provided,
however, that such persons shall be notified of the confidential nature of such
Confidential Information and be bound to keep such Confidential Information
confidential to the same standard that the disclosing party is obligated to
keep the Confidential Information confidential. All such Confidential
Information, including records created therefrom by VITAL, shall remain the
property of HEARTLAND, and VITAL shall provide such Confidential Information to
HEARTLAND or to another party upon HEARTLAND’s request.


 


5.3                                 Confidentiality of Agreement.  Each party agrees that the terms and
conditions of this Agreement, including the fees for Merchant Services provided
hereunder which are set forth in Exhibit “A” and Exhibit “B” hereto, are
confidential. Neither party shall, without the express prior written consent of
the other party, disclose such terms and conditions (including fees) to any
other unaffiliated person, firm or corporation.


 


5.4                                 Exclusions.  VITAL’s
and HEARTLAND’s obligations and agreements under this Section 5.4 shall
not apply to any information supplied that:


 


5.4.1                        Was
known to either party prior to the disclosure by the other,


 


5.4.2                        Is
or becomes generally available to the public other than by breach of this
Agreement,


 


5.4.3                        Otherwise
becomes lawfully available on a non-confidential basis from a third party who
is not under an obligation of confidence to either party,


 


5.4.4                        Is
independently developed by either party without the use of Confidential
Information provided by the other party, or


 


5.4.5                        Is
disclosed in response to a court order, subpoena or other request of a state or
federal court or regulatory body.


 


9

















 


5.5                                 Confidential Information.  If its obligations with respect to
Confidential Information provided in Section 5 are breached and such
breach is not cured within ninety (90) days’ notice thereof, except that if the
failure is one that by its nature cannot be cured in ninety (90) days, the
breaching party must make reasonable efforts to minimize the breach and to prevent
the recipient of the Confidential Information from using same. Each party
agrees that the other party would suffer immediate and irreparable harm in the
event any Confidential Information is used in a manner not permitted by this
Agreement. In the event of a breach or a threatened breach of the provisions of
this Agreement, the non-breaching party shall be entitled to injunctive relief
restraining the other party from such breach or threatened breach. Nothing
herein shall be construed as prohibiting either party from pursuing any other
remedy on account of such breach or threatened breach.


 


5.6                                 Survival.  The terms
of Section 5 shall survive the termination of this Agreement.


 


6.                                       INDEMNIFICATION


 


6.1                                 VITAL Indemnification.  VITAL shall be liable to and shall indemnify and hold HEARTLAND
harmless from and against any and all loss, liability, cost, damage and expense
(including reasonable legal and accounting fees and expenses) to which
HEARTLAND may be subjected or which it may incur in connection with any claims
which arise from or out of or as a result of the negligent acts or omissions of
VITAL, its officers, employees, agents and affiliates, in the performance of
their duties and obligations under this Agreement.


 


6.2                                 HEARTLAND Indemnification. 
HEARTLAND shall be liable to and shall indemnify and hold VITAL harmless
from and against any and all loss, liability, cost, damage and expense
(including reasonable legal and accounting fees and expenses) to which VITAL
may be subjected or which it may incur in connection with any claims which
arise from or out of or as the result of the negligent acts or omissions of
HEARTLAND, its officers, employees, agents and affiliates, in the performance
of their duties and obligations under this Agreement. HEARTLAND shall bear all
risk of loss of items, records, data and materials during transit from
HEARTLAND to VITAL’s location (or that of VITAL’s agents or sub-contractors).


 


6.3                                 Force Majeure / Business Continuity.  In no event shall VITAL or HEARTLAND be
liable with respect to the failure of its duties and obligations under this
Agreement (other than 


 


10

















 


an obligation to pay money) which is attributable to acts of God, war,
terrorism, conditions or events of nature, civil disturbances, work stoppages,
equipment failures, power failures, fire or other similar events beyond its
control, unless the failure to perform such duties and obligations is a result
of VITAL’s failure to maintain adequate business continuity capabilities and to
periodically ensure the effectiveness of same.


 


6.4                                 Data Transmission. 
In no event shall VITAL be liable with respect to any loss, liability,
cost, damage or expense arising from any loss, theft, disappearance of or
damage to data transmitted by dataline or other means of electronic
transmission that occurs during such transmission unless such loss, liability,
cost, damage or expense is the result of VITAL’s negligence or intentional
acts.


 


6.5                                 Operational Breakdowns.  VITAL does not guarantee the absence of break downs, operational
failures, unavoidable delays or other similar causes beyond VITAL’s control and
VITAL shall have no liability for loss, liability, cost, damage or expense
resulting directly or indirectly from any such cause unless such breakdown,
operational failure, unavoidable delay or other cause is the result of VITAL’s
negligence or intentional acts.


 


6.6                                 Errors.  HEARTLAND agrees
to check all output information produced by VITAL, including but not limited
to, statements and interchange qualification levels to determine if such
information is correct, and will promptly report any errors discovered therein
to VITAL. In no event shall VITAL be liable with respect to any loss,
liability, cost, damage or expense caused by VITAL’s failure to perform
hereunder but not reported by HEARTLAND to VITAL within ninety (90) days of
when such failure to perform is known to or should have been known to
HEARTLAND.


 


6.7                                 Reliance on HEARTLAND’s Information.  In no event shall VITAL be liable with respect
to any loss, liability, cost, damage or expense arising out of a claim by
HEARTLAND or by third parties in connection with the data, computations and
services provided and/or performed by VITAL hereunder to the extent that such
data, computations and/or services as to which such claim arises were provided
and/or performed in accordance with:


 


11

















 


6.7.1                        HEARTLAND’s
written requirements and/or instructions in such regard, including but not
limited to, HEARTLAND’s memoranda, data entry instructions or computer field
instructions or


 


6.7.2                        HEARTLAND’s
written concurrence that such data, computations and services provided or
performed or to be provided or performed comply with HEARTLAND’s previously
communicated requirements and/or instructions in such regard.


 


6.8                                 Special Damages. 
In no event will either party be liable for any special, consequential
or punitive damages, including but not limited to, lost profits, even if such
party knew of the possibility of such damages.


 


6.9                                 Limitation of Liability.  The liability of either party hereunder to
the other or to any party claiming by, through or under HEARTLAND, shall be
limited in the aggregate for the Initial Term, and for all subsequent Renewal
Terms, of the Agreement to six (6) times the “average monthly billing” as
defined hereinbelow:


 


6.9.1                        For
purposes of this Section 6.9.1, “average monthly billing” shall be the
average monthly billing of fees (excluding expenses) actually billed to
HEARTLAND by VITAL for providing Merchant Services computed over the twelve
(12) month period ending on the last day of the month immediately preceding the
month in which either party first receives notice from the other party or
otherwise becomes aware of the claim which caused such party’s liability to the
other party hereunder, or if this Agreement has not then been in effect for
twelve (12) months, then such average shall be computed over such fewer months
that this Agreement has been in effect.


 


7.                                       NOTICES


 


7.1                                 Address.  Any written
notice required or permitted to be given by HEARTLAND to VITAL hereunder shall
be addressed to:


 


VITAL PROCESSING SERVICES L.L.C.

Attention: General Counsel

8320 South Hardy Road

Tempe, AZ 85284

(480) 333-8604 (fax)


 


12

















 


and any written notice required, or permitted
to be given by VITAL to HEARTLAND under this Agreement shall be addressed to:


 


HEARTLAND PAYMENT SYSTEMS, INC.

Attention: Marty Uhle

343 West Bagley Road, #400

Berea, OH 44017

(440) 239-0444 (fax)


 


7.2                                 Form of Notice. 
All written notices provided for hereunder shall be delivered in person,
by facsimile or shall be sent by courier or by certified mail with a return
receipt requested and shall be effective when delivered or, in the case of
certified mail, when deposited in the United States Post Office, postage
prepaid and addressed as provided above. The parties to this Agreement, by
notice in writing, may designate another address or office to which notices
shall be given pursuant to this Agreement.


 


8                                          ADDITIONAL PROVISIONS


 


8.1                                 Relationship of Parties.  Nothing herein contained shall be construed as constituting a
partnership, joint venture or agency between HEARTLAND and VITAL.


 


8.2                                 Assignment.  This
Agreement shall not be assignable in whole or in part by HEARTLAND or VITAL
without the other party’s prior written consent, except that such consent shall
not be required for the assignment of this Agreement to any entity that is
controlled by the assigning party, its parent, affiliate or a subsidiary
thereof (which assignment shall not relieve the assigning party of any
obligation hereunder). VITAL may, however, without HEARTLAND’s prior written
consent, sub-contract with other entities with respect to the provision of
Merchant Services hereunder but no such sub-contracts shall alter HEARTLAND’s
rights against VITAL under this Agreement and no such sub-contract shall alter
the level or quality of service agreed to be delivered hereunder.


 


8.3                                 Authority.  Each
party to this Agreement hereby represents and warrants to the other that it has
the full right, power and authority to enter into and perform this Agreement in
accordance with all of the terms, provisions, covenants and conditions hereof
and that the execution and delivery of this Agreement has been duly authorized
by proper corporate action.


 


13

















 


8.4                                 Insolvency.  In the
event either party to this Agreement shall cease conducting business in the
ordinary course, become insolvent, make a general assignment for the benefit of
creditors, suffer or permit the appointment of a receiver for its business or
assets or shall avail itself of or become subject to any proceeding under the
federal bankruptcy laws of any statute or any state relating to insolvency or
the protection of the rights of creditors, which is not dismissed within ninety
(90) days, then (at the option of the other party hereto), this Agreement may
be terminated by the non-defaulting party in accordance with Section 4.5 and
be of no other force and effect, and any property or rights of such other
party, tangible or intangible, shall forthwith be returned to it.


 


8.5                                 Waiver.  Any delay,
waiver or omission by HEARTLAND or VITAL to exercise any right or power arising
from any breach or default of the other party in any of the terms, provisions
or covenants of this Agreement shall not be construed to be a waiver by VITAL
or HEARTLAND of any subsequent breach or default of the same or other terms,
provisions or covenants on the part of the other party.


 


8.6                                 Dispute.  The following
procedures shall be adhered to in all disagreements (“Dispute”) that arise
under this Agreement, prior to the escalation of a Dispute to arbitration. In
the event of a Dispute, either party shall notify the other party of the nature
of the Dispute with as much detail as possible. HEARTLAND’s representative and
VITAL’s representative shall confer, in person or by telephone, within five (5)
business days of the date of notification for the purpose of negotiating a
resolution of the Dispute and, if applicable, determining the corrective action
to be taken by the respective parties. If the parties’ representatives are
unable to resolve the dispute or to agree upon the appropriate corrective
action to be taken within thirty (30) business days of such meeting, or if any
of the completion dates in the corrective action plan are later exceeded, then
either party may initiate arbitration proceedings. The foregoing procedures
shall not limit or delay the right of either party to seek provisional or
ancillary remedies from a court of competent jurisdiction. Pending resolution
of the Dispute, and unless or until this Agreement is terminated in accordance
with the provisions hereof, both parties will continue their performance of
their obligations under this Agreement in good faith, including without
limitation the payment of all amounts due to the other party that are not in
dispute. Notwithstanding anything to the contrary contained in this Agreement,
in the event of a Dispute 


 


14

















 


relating to or arising out of a notice of default, the dispute
resolution process described herein must be commenced and completed within the
applicable default cure period.


 


Unless the parties mutually agree otherwise,
any controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be resolved by arbitrators which are members of the
Large, Complex Case Panel of the American Arbitration Association (AAA), or
similar professional credentials, in accordance with its then-prevailing
Commercial Arbitration Rules with Expedited Procedures, as modified by this
Agreement. Judgment upon the award rendered by the arbitrator maybe entered in
any court having jurisdiction thereof. The arbitration shall be held in
Arizona, or at such other place as may be selected by mutual agreement. Nothing
contained herein shall prohibit HEARTLAND from seeking injunctive relief from
any judicial authority before, during or after any arbitration proceeding. The
provisions of this arbitration clause shall survive the termination or
expiration of this Agreement.


 


Notwithstanding the foregoing, any party may
seek preliminary or interim injunctive relief from any court having
jurisdiction, whether or not such party has pursued formal or informal dispute
resolution in accordance with this Section 8.6 or otherwise.  The parties consent to the jurisdiction and
venue of the courts of the State of Arizona, including all federal courts
located in that state. By seeking or obtaining such remedy, the party seeking
injunctive relief shall not waive any of the provisions of this
Section 8.6, and any issues or claims arising in connection with such
injunctive relief may, at the election of the party seeking injunctive relief,
be determined by arbitration in accordance with this Section 8.6.


 


8.7                                 Business Continuity. 
VITAL and HEARTLAND shall work together throughout the term of this
Agreement to establish, update and improve strategies to minimize disruption of
Merchant Services and resulting financial loss and to ensure timely resumption
of operations in the event of any unforeseen disaster. VITAL will provide a
copy of its periodic third party review to HEARTLAND upon written request from
HEARTLAND.


 


8.8                                 Insurance.  VITAL
agrees to retain insurance on its property for the replacement value of such
property and to retain general liability insurance in an amount not less than
twenty million dollars ($20,000,000.00) and errors and omissions insurance that
covers VITAL’s errors 


 


15

















 


and omissions in its performance under this Agreement in an amount not
less than five million dollars ($5,000,000.00) and providing for, among other
things:


 


8.8.1                        Coverage
for any and all amounts necessary to replace magnetic tapes and reconstruct
information stored on such magnetic tapes or any other medium whatsoever or
other evidence of any transactions received by VITAL and required to be
maintained by VITAL pursuant to this Agreement,


 


8.8.2                        Coverage
for additional expenses incurred by VITAL which are required to allow VITAL to
continue processing and servicing in accordance with this Agreement and in
accordance with VITAL’s past custom and practice and


 


8.8.3                        Coverage
for any and all amounts necessary to replace all processing units, computer
consoles or other computer hardware of VITAL used in connection with the
processing activities of VITAL under this Agreement.


 


8.9                                 Off-site Storage. 
Throughout the term of this Agreement, VITAL agrees to maintain and
retain:


 


8.9.1                        Adequate
backup of all of its software in the form of the offsite storage of its source
and object codes as well as all documentation necessary to reconstruct the
software;


 


8.9.2                        Offsite
storage for each of HEARTLAND’s data files used in connection with processing
services provided by VITAL under this Agreement;


 


8.9.3                        A
backup power supply system to guard against electrical outages; and


 


8.9.4                        Adequate
backup for on-line communications, provided that HEARTLAND maintains an
appropriate modem for such on-line communications as specified by VITAL.


 


8.10                           Property Rights. 
Concepts, ideas, know-how, techniques, software, including but not
limited to, programs, program listings and programming tools and documentation,
including but not limited to, manuals, techniques, reports and drawings
developed by VITAL and used by VITAL to fulfill its obligations under this
Agreement shall be the sole and exclusive property of VITAL even if HEARTLAND
assisted VITAL in the development or modification of such property and
HEARTLAND shall have no interest whatsoever in and to such property.


 


16

















 


Notwithstanding the foregoing, in such event HEARTLAND has paid VITAL
for the development of any such property, HEARTLAND shall be given a fully paid
perpetual license in such property for its use and the use of its customers
unless VITAL sets forth in writing what other rights HEARTLAND shall have in
such property before the development thereof.


 


8.11                           Hiring with Consent. 
During the Initial Term of this Agreement, any subsequent or Renewal
Term, and for a period of one (1) year subsequent to the termination of the
provision of the Merchant Services hereunder, neither VITAL nor HEARTLAND,
without the prior written consent of the affected party, shall hire, seek to
hire or refer for other employment, any employee of such affected party having
knowledge or familiarity with the Merchant Services.


 


8.12                           Binding Nature.  This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their representatives and their respective successors and assigns.


 


8.13                           Section Headings. 
Section headings are included for convenience or reference only and
are not intended to define or limit the scope of any provision of this
Agreement and should not be used to construe or interpret this Agreement.


 


8.14                           Entire Agreement.  This
Agreement constitutes the entire agreement between the parties hereto relating
to the subject matter hereof and all prior negotiations, agreements and
understandings, whether oral or written, are superseded hereby. No modification
or amendment to this Agreement shall be effective unless and until set forth in
writing and signed by both parties hereto.


 


HEARTLAND agrees that, for new and/or
replacements products and/or services which VITAL may announce and introduce in
the future, a written amendment and/or modification to this Agreement is not
required. If HEARTLAND chooses to use such new and/or replacement products
and/or services in the future, HEARTLAND agrees to pay the fees for said
product and/or services in effect at the time of introduction, unless otherwise
agreed to by VITAL and HEARTLAND.


 


8.15                           Governing Law.  This
Agreement shall be governed in all respects by, and construed in accordance
with, the laws of the State of Arizona.


 


17

















 


IN WITNESS WHEREOF, each of the parties has
caused this Agreement to be executed on its behalf by its duly authorized
officers as of the day, month and year first above written.


 


	
  VITAL PROCESSING SERVICES, L.L.C.

  	
   

  	
  HEARTLAND PAYMENT SYSTEMS,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jonathan Palmer

  	
   

  	
   

  	
  By:

  	
  /s/ Martin J. Uhle

  
	
  Name:

  	
  Jonathan Palmer

  	
   

  	
   

  	
  Name:

  	
  Martin J. Uhle

  
	
  Title:

  	
  CEO

  	
   

  	
   

  	
  Title:

  	
  President

  
	
  Date:

  	
  Feb 19, 2002

  	
   

  	
   

  	
  Date:

  	
  2-19-02

  
												



 


18

















 


Exhibit A


 


MERCHANT POINT-OF-SALE
SERVICE DESCRIPTIONS AND PRICING


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 


19

















 


Exhibit B


 


CLEARING
AND SETTLEMENT


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 


20

















 


Exhibit C


 


Service Levels


 


VITAL’s responsibility for Service Level
Standards are limited to those elements over which VITAL has substantial
control. HEARTLAND will exercise commercially reasonable efforts to notify
VITAL of Service Level deficiencies within 24 hours of deterioration to aid
VITAL in curing all deficiencies.


 


A.                                   POS Services


 


1.                                       Dial
Authorization Availability


 


The communications network will have availability of at least 99.5%, as
measured on a monthly basis.


 


In the event that the dial authorization network is available less than
the established service level, VITAL will reimburse HEARTLAND the price
differential incurred for obtaining authorization from another equivalent
source of service and shall pay the interchange downgrade incremental cost
difference.


 


2.                                       Merchant Leased
Lines


 


VAPS - The service level standard for HEARTLAND’s Merchant VAP
availability is 99.5%, as measured on a monthly basis.


 


In the event that the VAP network is available less than the
established service level, VITAL will reimburse HEARTLAND the price
differential incurred for obtaining authorization from another equivalent
source of service and shall pay the interchange downgrade incremental cost
difference.


 


3.                                       MMS Standards


 


The Merchant Management System will be available for input of terminal
ID’s and downloads 98% of the time, 7:00 a.m. to 7:00 p.m. CTZ, 7 days per
week, as measured on a monthly basis. The above criteria are subject to system
refreshes and scheduled downtime.


 


4.                                       Notification
of Service Interruptions


 


VITAL agrees to notify HEARTLAND of the following service interruptions
within the noted time frames.


 


4.1                                 Planned
MMS systems downtime at least 72 hours prior to the downtime.


4.2                                 Any unplanned MMS
system downtime of more than one hour as soon as possible.


4.3                                 Any major communication
network outage that is known to VITAL that has significant merchant impact, as
soon as possible.


 


21

















 


B.                                     Accounting and
Clearing Services


 


1.                                       On-Line Access


 


Account Inquiry:                                                    8:00
a.m. EST 8:00 p.m. EST each day


 


VITAL will provide, at 99.5% monthly, twenty-four (24) hour inquiry
capabilities for specified function codes: JAG, IPT, IPB, IME, IPL, IFC, IBT,
IBA, IDN, IFT, ICG, IPS, IBR, IHM, ICD, IMA, IIT, IDR, IAL, INA, IRK with the
exception of normal refreshes and scheduled downtime.


 


Scheduled Downtime generally occurs in the 1st 2nd  and 3rd  Quarters of each Calendar year. VITAL will notify HEARTLAND of
these outages in January of each Calendar year and confirm the outage
three weeks prior to the actual outage.


 


File Maintenance:                                                 8:00
a.m. EST 7:00 p.m. EST each day


 


Monetary Entry:                                                        8:00
a.m. EST 7:00 p.m. EST each day

(DCE, MRA, Chargeback Queuing)


 


Response Times:                                                                                                     Daily
average of three seconds or less, controller to controller (HEARTLAND must
maintain recommended line levels)


 


Recommended Network Provisions


 


1.              8 Terminals or less


- Multi-point 9600 BPS Line


 


2.              64 Terminals or less


- Point to Point 9600 BPS Line


 


3.              256 Terminals & Other Applications


- Point to Point 56KBPS Line


- Multi-port DSOSUs


- Automatic Dial Back-up


 


4. More than 256 Terminals and Multiple
Applications


- Fractional or Full T-1 Line


- Bridge Router Connection


- ISDN Back-up


 


Standard:                                                                                                                                             95%
of all scheduled hours daily including scheduled downtime.


 


22

















 


2.                                       Transaction
Posting and Settlement


 


Transaction Files:                                                                                                 This
includes incoming files representing transactions (excluding transactions
rejected based on incoming or outgoing edits due to the source data being the
reason for the reject of the problem attributed to the Association) captured at
merchant locations and presented to VITAL for clearing and posting, as well as
outgoing files to various charge card associations for entering into the
appropriate interchange network.


 


Files received by 6:30 p.m. EST on a business day (Sunday-Friday) will
be cleared the current day; files received on a non-business day or after 6:30
p.m. EST on a business day will be cleared no later than the next business day;
for files received after 6:30 p.m., but before 1:00 a.m. EST the next business
day, VITAL will use its best efforts to clear the transactions that night.
Transactions received prior to the agreed upon pull times will be posted to the
account that night.


 


Standard:                                                                                                                                             99%
of all transactions cleared as defined each calendar month.


 


3.                                       Merchant
Statementing, Inserting and Billing


 


Statements Mailed:                                                                                          Tapes
mailed within two business days of cycling. Printed statements mailed within
three business days.


 


4.                                       ACH File
Delivery


 


File Delivery:                                                                                                                          All
ACH files will be delivered within the agreed upon windows to HEARTLAND or the
bank of HEARTLAND’s choice on the same business day in which the transactions
(excluding transactions rejected based on incoming or outgoing edits due to the
source data being the reason for the reject of the problem attributed to the
Association) were entered into interchange or the business day following
monthly statement creation. Guaranteed availability of information transmitted
to HEARTLAND requires that HEARTLAND has installed and uses VITAL’s current
preferred method of data transmission (currently Sterling Software’s Connect


 


23

















 


Direct also known as NDM), and that minimum processing windows are met.
Files need to be received by VITAL allowing a minimum processing window of four
(4) hours from the completion of the incoming file delivery to the scheduled
window for delivery of the ACH file to HEARTLAND. All ACH files will be
delivered within the agreed upon windows to HEARTLAND.


 


Standard:                                                                                                                                             No
more than one (1) late delivery in any calendar month, that causes financial
impact to HEARTLAND.


 


5.                                       Report File
Delivery


 


Daily Files:                                                                                                                                     All
reports will be transmitted or available for transmission in accordance with
the following schedules. All times are for the business day following posting
or settlement.


 


General Ledger                                                                                                                TBD


 


Chargeback and Retrieval                                                        6:00
a.m. EST


 


Daily Reports                                                                                                                       1:00
p.m. EST


 


Daily Transactions                                                                                           6:00
a.m. EST


 


Daily Discount                                                                                                                6:00
a.m. EST


 


Monthly Files:                                                                                                                  All
report files will be transmitted or available for transmission in accordance
with the following schedule. All times are for the third business day following
the last day of a business month.


 


Monthly Reporting                                                                                         12:00
noon EST


 


Monthly Statements                                                                                   12:00
noon EST


 


Standard:                                                                                                                                             97%
of files meet established windows


 


6.                                       Merchant Error
Rate:


 


Merchant Services shall not exceed a greater than .2% error or loss of
data rate caused by VITAL as measured on a monthly basis. VITAL shall
retransmit and correct all such lost or inaccurate data at its sole cost and
expense if VITAL is responsible.


 


24

















 


7.                                       Response Time:


 


VITAL shall achieve response times comparable to those achieved by
third party providers of comparable services, as measured on a monthly basis.
At the least, VITAL’s response times shall not exceed the following;


 


Type of Problem                                      Maximum
Response Time


 


	
  System error (with financial impact to HEARTLAND or HEARTLAND’s
  client)

  	
   

  	
  Acknowledged and responded to within one (1) week from notification

  
	
   

  	
   

  	
   

  
	
  System error (without financial impact to HEARTLAND or HEARTLAND’s
  client)

  	
   

  	
  Acknowledged and responded to within two (2) weeks from notification

  
	
   

  	
   

  	
   

  
	
  General Research error

  	
   

  	
  Acknowledged and responded to within three (3) weeks from
  notification

  
	
   

  	
   

  	
   

  
	
  Merchant Statement error

  	
   

  	
  Acknowledged and responded to within two (2) weeks from notification

  
	
   

  	
   

  	
   

  
	
  Error Notification

  	
   

  	
  HEARTLAND will contact VITAL within one (1) business day for any out
  of balance conditions or file transmission errors. This will allow VITAL the
  best opportunity to resolve those types of incidents.

  



 


8.                                       Customer
Service:


 


VITAL shall exercise commercially reasonable efforts to achieve or
exceed customer service levels comparable to that achieved by third party providers
of comparable services. VITAL shall respond to all telephonic or written
inquiries within two (2) business days.


 


9.                                       Report/CD-ROM:


 


9.1                                 Daily
Reports mailed within two (2) business days


9.2                                 Month-End
Reports mailed within three (3) business days


9.3                                 CD-ROM
mailed within four (4) business days


 


10.                                 File Feeds:


 


VITAL shall proactively manage all file feeds, including but not
limited to merchant-defined and outclearing files, received by VITAL, on behalf
of HEARTLAND or HEARTLAND’s clients, including but not limited to prompt
receipt and delivery scheduling and content verification and notification.


 


25

















 


FIRST AMENDMENT

TO VITAL PROCESSING SERVICES AGREEMENT


 


THIS FIRST AMENDMENT (“Amendment”) by and between
VITAL PROCESSING SERVICES, L.L.C. (“VITAL”) and HEARTLAND PAYMENT SYSTEMS, INC.
(“HEARTLAND”) modifies and supersedes any conflicting provisions contained in
the Vital Processing Services Agreement dated April 1, 2002 by and between
VITAL and HEARTLAND (“Agreement”) as well as any amendments to the Agreement.


 


WITNESSETH
THAT


 


WHEREAS, HEARTLAND desires to expand the
Merchant Services that VITAL may provide under the Agreement to include
Card-Not-Present Authorization Pricing;


 


NOW, THEREFORE, for and in consideration of
the promises and mutual covenants hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


FIRST


 


Exhibit “A”, Section 1 to the Agreement
is hereby amended and modified by the addition of Section 1.2, entitled
“Card-Not-Present Authorization”, as outlined in Attachment I hereto.


 


SECOND


 


Except to the extent specifically amended by
this Amendment, the terms and conditions of the Agreement, as well as the terms
and conditions of any amendments to the Agreement, remain in full force and
effect without modification.


 


IN WITNESS WHEREOF, this Amendment to the
Agreement has been executed by VITAL and HEARTLAND effective July 1, 2003,
the Effective Date of this amendment.


 


	
  HEARTLAND
  PAYMENT SYSTEMS, INC.

  	
   

  	
  VITAL
  PROCESSING SERVICES, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  MARTIN UHLE

  	
   

  	
  By:

  	
  /s/ HARRY E. HASSELMAN

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President
  and CEO

  	
   

  	
  Title:

  	
  EVP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  6-12-03

  	
   

  	
  Date:

  	
  6/25/03

  
											



 

















 


Card-Not-Present
Authorization


 


1.2                                 Card-Not-Present
Authorization


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 

















 


FIRST AMENDMENT

TO VITAL PROCESSING SERVICES AGREEMENT


 


THIS FIRST AMENDMENT (“Amendment”) by and
between VITAL PROCESSING SERVICES, L.L.C. (“VITAL”) and HEARTLAND PAYMENT
SYSTEMS, INC. (“HEARTLAND”) modifies and supersedes any conflicting provisions
contained in the Vital Processing Services Agreement dated April 1, 2002
by and between VITAL and HEARTLAND (“Agreement”) as well as any amendments to
the Agreement.


 


WITNESSETH
THAT


 


WHEREAS, HEARTLAND and VITAL agree to revised
SSL Transactions pricing;


 


NOW, THEREFORE, for and in consideration of
the promises and mutual covenants hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


FIRST


 


Section 3.1.1 of Exhibit “A” to the
Agreement, entitled “SSL Transactions’ Is hereby amended and modified as set
forth in Attachment A hereto.


 


SECOND


 


Except to the extent specifically amended by
this Amendment, the terms and conditions of the Agreement, as well as the terms
and conditions of any amendments to the Agreement, remain in full force and
effect without modification.


 


IN WITNESS WHEREOF, this Amendment to the
Agreement has been executed by VITAL and HEARTLAND effective June 1, 2003.


 


	
  HEARTLAND
  PAYMENT SYSTEMS, INC.

  	
   

  	
  VITAL
  PROCESSING SERVICES, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  MARTIN J. UHLE

  	
   

  	
  By:

  	
  /s/
  HARRY E. HASSELMAN

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President and COO

  	
   

  	
  Title:

  	
  EVP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  6-3-03

  	
   

  	
  Date:

  	
  6/4/03

  
											



 

















 


SSL
Transactions


 


3.1.1                        SSL
Transactions


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 

















 


ADDENDUM

TO VITAL PROCESSING SERVICES AGREEMENT


 


THIS ADDENDUM (“Addendum”) by and between
VITAL PROCESSING SERVICES, L.L.C. (“VITAL”) and HEARTLAND PAYMENT SYSTEMS
(“HPS”) modifies and supersedes any conflicting provisions contained in the
Vital Processing Services Agreement dated April 1, 2002 by and between
VITAL and HPS (“Agreement”) as well as any amendments to the Agreement.


 


WITNESSETH
THAT


 


WHEREAS, HPS desires to expand the Merchant
Services that VITAL may provide under the Agreement to include Electronic Data
Capture of Enhanced Data (Level III) associated with Visa and MasterCard
branded Purchasing Card Transactions;


 


NOW, THEREFORE, for and in consideration of
the promises and mutual covenants hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


FIRST


 


Exhibit “A” to the Agreement is hereby
amended and modified by the addition of Section 20, entitled “Electronic
Data Capture of Enhanced Data (Level III) associated with Visa/MasterCard
branded Purchasing Cards”, as outlined in Attachment I hereto.


 


SECOND


 


Except to the extent specifically amended by
this Amendment, the terms and conditions of the Agreement, as well as the terms
and conditions of any amendments to the Agreement, remain in full force and
effect without modification.


 


IN WITNESS WHEREOF, this Addendum to the
Agreement has been executed by VITAL and HPS effective July 1, 2002.


 


	
  HEARTLAND
  PAYMENT SYSTEMS, INC.

  	
   

  	
  VITAL
  PROCESSING SERVICES, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Martin J. Uhle

  	
   

  	
  By:

  	
  /s/
  Harry E. Hasselman

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President
  & COO

  	
   

  	
  Title:

  	
  EVP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  7-15-02

  	
   

  	
  Date:

  	
  7/17/02

  
											



 

















 


20.                                 Electronic Data
Capture of Enhanced Data (Level III) Associated with Visa/MasterCard Branded
Purchasing Cards


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended.


 


1

















 


e-CONNECTIONS ADDENDUM

to the

PROCESSING SERVICES AGREEMENT


 


THIS e-CONNECTIONS ADDENDUM (“Addendum”) by
and between VITAL PROCESSING SERVICES, L.L.C. (“VITAL”) and HEARTLAND PAYMENT
SYSTEMS, INC. (“HEARTLAND”), modifies and supplements those services contained
in the Processing Services Agreement dated April 1, 2002 by and between
VITAL and HEARTLAND (“Agreement”) as well as any addendums and amendments to
said Agreement.


 


WITNESSETH
THAT:


 


WHEREAS, HEARTLAND desires to expand the
Merchant Services that VITAL may provide under the Agreement;


 


NOW, THEREFORE, for and in consideration of
the promises and mutual convenants hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


 


FIRST


 


The Agreement is hereby amended and modified
by the addition of the delivery and pricing of VITAL® e-Connections
Service (“Service”) which are attached hereto as Attachment I and made part
hereof.


 


SECOND


 


Subject to the terms and conditions of the
Agreement and the Addendum during the initial Term, and any Renewal Term, VITAL
grants HEARTLAND a non-exclusive, nontransferable, non-assignable and limited
right and license to access and use the Services in accordance with the terms
of the Agreement and Addendum and to allow HEARTLAND’s customers, agents and
merchants (“USER(s)”) pursuant to terms and conditions mutually agreed upon to
access and use the Services.


 


THIRD


 


Except to the extent specifically amended by
this Addendum, the terms and conditions of the Agreement, as well as the terms
and conditions of any addendums and amendments to the Agreement, remain in full
force and effect without modification.


 


IN WITNESS WHEREOF, this e-Connections
Addendum to the Agreement has been executed by VITAL and HEARTLAND effective
October 1, 2002.


 


	
  HEARTLAND
  PAYMENT SYSTEMS, INC.

  	
   

  	
  VITAL
  PROCESSING SERVICES, L.L.C.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Martin J. Uhle

  	
   

  	
  By:

  	
  /s/
  Harry E. Hasselman

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  EVP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  9-23-02

  	
   

  	
  Date:

  	
  9-25-02

  
											



 

















 


Attachment I


 


VITAL®
e-Connections Services


 


VITAL® e-Connections is
an Internet-accessible browser-based financial reporting system that provides
financial institutions with risk management reporting tools and provides
financial institutions, their agents and merchants with the ability to monitor
electronic payment transaction activity. VITAL® e-Connections consists of separate and distinct functional modules
which may be used individually or as a suite of services.


 


HEARTLAND acknowledges and agrees that during the
term of this Agreement and Addendum, VITAL shall be the exclusive supplier to
HEARTLAND of internet-accessible browser-based tools for viewing, reporting and
querying cleared and settled electronic payment processing transaction data and
authorized and captured electronic payment processing transaction data.


 


1.                                       AUTHORIZATION AND CAPTURE AND RECONCILIATION
MODULES


 


1.1                                 Description of Services


 


VITAL®
e-Connections Authorization & Capture and Reconciliation Modules provide
HEARTLAND and its agents (collectively “HEARTLAND”) with internet-accessible
browser-based tools that may be utilized in the management, reporting and
reconciliation of authorized and captured electronic payment processing
transaction data.


 


1.2                                 Access


 


Access
to transaction data may be obtained at Merchant ID, Chain or Bank levels, as
such levels are structured on the VITAL Authorization Platforms. Pursuant to
the existing hierarchy structure:


 


1.2.1                        A USER with a Merchant Logon ID may view data associated with that
Merchant ID only.


 


1.2.2                        A USER with a Chain Logon ID will have the ability to view aggregate,
as

well as individual, transaction data belonging to that specific Chain.


 


1.2.3                        A USER with an Agent Logon ID will have the ability to view aggregate,
as well as individual, transaction data belonging to that specific Agent


 


1.2.4                        HEARTLAND may, by using a Bank CSR Logon ID, view aggregate, as well as
individual data associated with that specific Bank.


 


1.2.5                        HEARTLAND will be assigned an Administrator Logon ID and password that
will enable HEARTLAND to assign and administer CSR, Chain and Merchant
Registration and Logon IDs and passwords on behalf of HEARTLAND’s USERs.


 


1.2.6                        Logon IDs are intended for use, and operation, by HEARTLAND, its Agent
Banks, its merchants and their respective employees and are not intended for
resale or use by third parties other than HEARTLAND’s Agent Banks and
merchants.


 

















 


2.                                       CLEARING AND SETTLEMENT MODULE


 


2.1                                 Description of Services


 


VITAL® e-Connections Clearing & Settlement Module provides HEARTLAND and
its customers, either agents who resell services or merchant establishments
(“USERS”) with internet-accessible browser-based tools that may be utilized in
the management and reporting of cleared and settled electronic payment processing
transaction data.


 


2.2                                 Access


 


Access
to transaction data may be obtained at Merchant ID, Association or Group
levels, as such levels are structured on the MAS. Pursuant to the existing MAS
hierarchy structure:


 


2.2.1                        A USER with a Merchant Logon ID may view data associated with that
Merchant ID only.


 


2.2.2                        A USER with an Association Logon ID will have the ability to view
aggregate, as well as individual, transaction data belonging to that specific
Association.


 


2.2.3                        A USER with a Group Logon ID will have the ability to view aggregate,
as well as individual, transaction data belonging to that specific Group.


 


2.2.4                        HEARTLAND may, by using a Bank CSR Logon ID, view aggregate, as well as
individual data associated with that specific Bank.


 


2.2.5                        HEARTLAND will be assigned an Administrator Logon ID and password that
will enable HEARTLAND to assign and administer CSR, Group, Association and
Merchant Registration and Logon IDs and passwords on behalf of HEARTLAND’s
USERs.


 


3.                                       RISK MANAGEMENT MODULE


 


3.1                                 Description of Services


 


VITAL®
e-Connections provides HEARTLAND and its agents (“collectively “HEARTLAND”)
with internet-accessible browser-based tools that enable HEARTLAND to define
rule-based parameters for the monitoring of unusual authorization transaction
activity.


 


3.2                                 Access


 


3.2.1                        HEARTLAND may, by using a HEARTLAND risk analyst (“RA”) Logon ID, view
reports of unusual authorization transaction activity.


 


3.2.2                        HEARTLAND may by using a HEARTLAND risk manager (“RM”) Logon ID, view
standard and managerial level reports of unusual authorization transaction
activity.


 


3.2.3                        HEARTLAND may by using a HEARTLAND risk system administrator (“RSA”)
Logon ID, modify rules defining unusual authorization transaction activity, as
well as view standard and managerial level reports of that activity.


 

















 


3.2.4                        VITAL® shall assign HEARTLAND all Risk Logon 1Ds
and passwords unless otherwise agreed to.


 


4.                                       HELP DESK SUPPORT PROVIDED TO HEARTLAND’S
END-USER MERCHANTS, AGENT BANK PARTNERS AND ISO PARTNERS


 


If requested to do so by HEARTLAND, VITAL
shall provide first-level telephone-based Help Desk support to HEARTLAND’s
USERs. In the event that VITAL provides Help Desk Services pursuant to this
Section 4, the fees described in Section 5.4.1 shall apply.


 


5.                                       SERVICE FEES


 


5.1                                 Platform Fees


 


**********


 


5.2                                 Access Fees


 


**********


 


5.3                                 Implementation Fee


 


**********


 


5.4                                 Help Desk Support Fees


 


5.4.1                        Per Help Desk Call                                                                                                                                                                                                                                                                                            **********


 


5.5                                 Import of Data from 3rd Parties


 


5.5.1                        One-time Initial Setup Fee, per data source,
per file                                                                                                                   **********


 


**********


 


5.6                                 Customization Fees


 


**********


 


6.                                       MONTHLY MINIMUMS


 


**********


 


7.                                       TRAINING AND DOCUMENTATION


 


**********


 












[****] Represents material which has been redacted and filed separately
with the Commission pursuant to a request for confidential treatment pursuant
to Rule 406 under the Securities Act of 1933, as amended. 


 

















 


VITAL® e-Connections Services


 


Terms of Use


 


This
internet-accessible, browser-based financial transaction reporting service
(“Service”) includes proprietary materials, the use of which is subject to the
following terms and conditions.


 


1.                                       Acknowledgment And Acceptance Of Agreement:


 


The Service, provided by a
financial transaction processing entity (the “Company”) to the business entity
(“User”) pursuant to the Terms of Use Agreement (“TOU”), any amendments
thereto, and any operating rules or policies that may be published from time to
time by Company, all of which are hereby incorporated by reference. The TOU
comprises the entire agreement between User and Company, and supersedes any
prior agreements pertaining to the subject matter contained herein.


 


2.                                       Description Of Service:


 


Company is providing User
with the capability to initiate queries and receive financial transaction
reporting via the World Wide Web, or other communications method as agreed
upon, on a site designated by the Company. User must: (a) provide for User’s
own access to the


 


World Wide Web and pay any
service fees associated with such access, and (b) provide all equipment
necessary for User to make such connection to the World Wide Web, including a
computer, modem and Web browser.


 


3.                                       User’s Registration Obligations:


 


In consideration of use of
the Service, User agrees to: (a) provide true, accurate, current, and complete
information about User as prompted by the Registration Form, and (b) to
maintain and update this information to keep it true, accurate, current and
complete. This information about a User shall be referred to as “Registration
Data.” If any information provided by User is untrue, inaccurate, not current,
or incomplete, Company has the right to terminate Users access to the Service,
and refuse any and all current or future use of the Service.


 


4.                                       Modifications To Agreement:


 


Company may change the TOU
from time to time at its sole discretion. Changes to the TOU will he posted on
the System Bulletin screen, which is available to all End Users.


 


5.                                       Modifications To Service:


 


Company reserves the right
to modify or discontinue, temporarily or permanently, the Service with or without
notice to User. User agrees that Company shall not be liable to User or any
third party for any modification or discontinuance of the Service.


 


6.                                       User Account, Password And Security:


 


User will receive a password
and account designation upon completing the registration process. User is
responsible for maintaining the confidentiality of the password and account,
and is fully responsible for all activities that occur under User’s password or
account. User agrees to immediately notify the Service of any unauthorized use
of User’s password or account or any other breach of security.


 


7.                                       User Conduct:


 


User agrees to abide by all
applicable association, local, state, national, and international laws and
regulations in User’s use of the Service, and agrees not to interfere with the
use and enjoyment of the Service by other Users. User agrees to be solely
responsible for the contents of User’s transmissions through the Service.


 

















 


User agrees (i) not to use
the Service for illegal purposes; (ii) not to interfere with or disrupt the
Service or servers or networks connected to the Service; (iii) to comply with
all requirements, procedures, policies and regulations of networks connected to
the Service; and (iv) to comply with all applicable laws regarding the transmission
of technical data exported from the United States.


 


8.                                       Indemnity:


 


User agrees to indemnify and
hold Company, and its officers, and employees, harmless from any claim or
demand, including reasonable attorneys’ fees, made by any third party due to or
arising out of User’s use of the Service, User’s connection to the Service,
User’s violation of the TOU, or User’s violation of any rights of another.


 


9.                                       Resale Of Service:


 


If User is designated by the
Company as a reseller of the Service, then such User shall be responsible for
ensuring all parties to whom it resells the Service agree and abide by the TOU.


 


10.                                 Data Storage:


 


Company, and its their third
party service providers assume no responsibility for the deletion or failure to
store financial transaction data. Company may establish a limit on the data
storage capability it will maintain for User.


 


11.                                 Termination:


 


User agrees that Company may
terminate Users password, account or use of the Service if Company believes:


 


11.1                           That User has violated or acted
inconsistently with the letter or spirit of the Service Agreement,


 


11.2                           That User has violated the rights of Company,
or (iii) that User’s continued use of the Service poses a material threat to
the security, stability, or ongoing operation of the System Or Services.


 


User
acknowledges and agrees that any termination of Service under any provision of
this Agreement may be effected without prior notice


 


12.
Disclaimer Of Warranties:


 


User expressly agrees that
use of the service is at user’s sole risk. The service is provided on an “as
is” and “as available” basis.


 


12.1                           COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.


 


12.2                           COMPANY MAKES NO WARRANTY THAT THE SERVICE
WILL MEET USER’S REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS
THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR
RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE.


 


12.3                           COMPANY MAKES NO WARRANTY REGARDING ANY GOODS
OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICE OR ANY
TRANSACTIONS ENTERED INTO THROUGH SERVICE.


 


SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY
NOT APPLY TO YOU.


 

















 


13.
Limitation of Liability:


 


13.1                           User agrees that Company shall not be liable
for any direct, indirect, incidental, special, or consequential damages,
resulting from the use or the inability to use the service or resulting from
unauthorized access to or alteration of user’s transmissions or data, including
but not limited to, damages for loss of profits, use, data or other
intangibles, even if Company has been advised of the possibility of such
damages.


 


13.2                           User further agrees that Company shall not be
liable for any damages arising from interruption, suspension or termination of
service, including but not limited to direct, indirect, incidental, special,
consequential or exemplary damages, whether such interruption, suspension or
termination was justified or not, negligent or intentional, inadvertent or
advertent.


 


Some jurisdictions do not
allow the limitation or exclusion of liability for incidental or consequential
damages so some of the above limitations may not apply to you.


 


NOTICE: Any notice to User
or to the Company shall be made via either email or regular mail. The Company
may also provide notices of changes to the TOU or other matters by displaying
notices to Users generally on the Service.


 


14.                                 General:


 


14.1                           The Service Agreement and the relationship
between User and Company shall be governed by the laws of the State of Arizona
without regard to its conflict of law provisions.


 


14.2                           The failure of Company to exercise or enforce
any right or provision of the TOU shall not constitute a waiver of such right
or provision. If any provision of the TOU is found by a court of competent
jurisdiction to be invalid, the parties nevertheless agree that the court
should endeavor to give effect to the parties’ intentions as reflected in the
provision, and the other provisions of the TOU remain in full force and effect.


 


14.3                           User agrees that regardless of any statute,
or law to the contrary, any claim or cause of action arising out of or related
to use of the Service or the Service Agreement must be filed within ninety (90)
days after such claim or cause of action arose or be forever barred.


 


15.                                 Section Titles


 


15.1                           The section titles in the TOU are for
convenience only and have no legal or contractual effect.