In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
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Question: Exhibit 10d-2

                               RESELLER AGREEMENT

                                 BY AND BETWEEN

                                PIVX CORPORATION

                                       AND

                               DETTO TECHNOLOGIES

This Reseller Agreement is entered as of this ___ day of _________, 2004 (Effective Date) by and between PivX Corporation, a California corporation, having its principal place of business at 23 Corporate Plaza Drive, Newport Beach, California, 92661 (PivX) and Detto Technologies, a Washington corporation, having its principal place of business at 14320 NE 21st Street, Suite 11, Bellevue, Washington, 98007 (Detto).

NOW THEREFORE, for good and valuable consideration, the parties hereby agree as follows:

1. GRANT OF RIGHTS

1.1 LICENSE. Subject to the terms and conditions of this Agreement, PivX hereby grants to Detto a non-transferable, exclusive license to distribute PivX's Qwik-Fix Pro and any documentation supporting Qwik-Fix Pro provided from time to time by PivX (the Documentation) within North America, solely to third parties to whom Detto licenses Qwik-Fix Pro (Third Parties), and as governed by the terms set forth in Exhibit A (PivX/Detto Reseller Agreement Addendum). PivX also hereby grants to Detto a non-transferable, non-exclusive license to distribute PivX's Qwik-Fix Pro and the Documentation outside of North America, solely to Third Parties and as governed by the terms in Exhibit A. Detto shall have no right to reproduce Qwik-Fix Pro or any part thereof. All copies of Qwik-Fix Pro distributed by Detto shall be distributed pursuant to PivX's current Enterprise License Agreement, as amended by PivX from time to time (the License), a copy of which PivX will provide Detto. Detto shall not distribute Qwik-Fix Pro to any Third Party unless the Third Party has accepted the terms of PivX's current License under penalty of perjury and in writing.

1.2 OWNERSHIP. As between PivX and Detto, PivX owns and retains all right, title, and interest in and to Qwik-Fix Pro and Documentation; all trademarks, service marks or trade names associated with Qwik-Fix Pro or Documentation (the Trademarks); all copyrights, patents, trade secret rights, and other intellectual property rights therein (collectively, together with Qwik-Fix Pro, Documentation, and Trademarks, the Property). Except as expressly granted herein, PivX does not grant to Detto any right or license, either express or implied, in Qwik-Fix Pro, Documentation or Property. Detto shall not reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from Qwik-Fix Pro.

1.3 PIVX CHANNELNET. PivX grants Detto access to PivX ChannelNet as governed by the terms set forth in Exhibit A.

2. DETTO'S OBLIGATIONS

2.1 DETTO'S MARKETING; PUBLIC RELATIONS. Detto obligations for marketing and public relations are governed under the terms in Exhibit A.

2.2 TRADEMARKS; PROPERTY. During the term of this Agreement, Detto shall have the right to use and reproduce the Trademarks in connection with Detto's marketing, advertising, promotion and distribution of Qwik-Fix Pro. Detto's use of the Trademarks shall not create any right, title or interest therein. Detto shall use the Trademarks only in a manner which complies in all material respects with PivX's reasonable policies in effect from time to time, and all

                                       1

such use shall be for PivX's benefit. Detto shall not remove, obscure or alter PivX's copyright notice or the Trademarks from Qwik-Fix Pro or Documentation. If Detto, in the course of distributing Qwik-Fix Pro, acquires any goodwill or reputation in any of the Trademarks, all such goodwill or reputation shall automatically be transferred to and shall vest in PivX when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Detto, and Detto agrees to take all such actions necessary to effect such vesting. Detto shall not contest the validity of any of the Property or PivX's exclusive ownership of them. Detto shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Trademarks, or any word or mark confusingly similar to the Trademarks in any jurisdiction.

2.3 SUPPORT FOR QWIK-FIX PRO. Detto shall provide for all customer support for Qwik-Fix Pro that it resells as governed by the terms set forth in Exhibit A.

2.4 COMPLIANCE WITH APPLICABLE LAWS. Detto shall comply with all laws and regulations applicable to Detto's marketing and distribution of Qwik-Fix Pro hereunder. Without limiting the generality of the foregoing, Detto shall, at its own expense, make, obtain, and maintain in force at all times during the term of this Agreement, all filings, registrations, licenses, permits and authorizations





in North America required for Detto to perform its obligations under this Agreement.

2.5 SECURITY ISSUES. Detto shall take all action necessary to ensure that (a) Qwik-Fix Pro and Documentation on Detto's servers or computer systems is appropriately secured so that Qwik-Fix Pro and Documentation can only be viewed, copied, or utilized by licensed Third Parties; and (b) that the object code of the Courseware can only be accessed by employees authorized by PivX and cannot be copied or downloaded by any of Detto's licensees or by any other third party. In addition, Detto shall make its offices and equipment available in person, upon reasonable notice, and to the extent feasible, remotely, to PivX to inspect and test Detto's physical and technical set-up to ensure that Detto is complying with its obligations under this Section. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that Detto breaches its obligations under this Section 2.5.

2.6 PROTECTION OF PROPRIETARY RIGHTS. Detto shall cooperate without charge (provided that PivX will reimburse out of pocket expenses as agreed in advance in writing), in PivX's efforts to protect PivX's rights in the Property. Detto shall promptly notify PivX of any infringements of PivX's Property Rights that come to Detto's attention. PivX shall have the exclusive right to institute infringement or other appropriate legal action against alleged infringers of its Property Rights. PivX shall incur all expenses in connection therewith and shall retain all monetary recoveries received therefrom.

2.7 NO EXCESS REPRESENTATIONS OR WARRANTIES. Detto covenants that it shall not make any representations or warranties with respect to Qwik-Fix Pro or Documentation in excess of those provided by PivX herein. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that Detto breaches its covenant under this Section 2.7.

2.8 FULFILLMENT OF DETTO'S OBLIGATIONS. Detto covenants that it will fulfill all of its contractual and legal obligations to its customers. Detto covenants that it will (a) provide its customers with first quality sales and technical support with respect to any copies or licenses of Qwik-Fix Pro sold by Detto, (b) promptly, courteously and appropriately respond to its customers questions, concerns and complaints, and (c) generally deal with its customers in a professional manner that shall add to the good reputation of Detto and PivX. To the extent that Detto fails to fulfill its contractual and legal obligations to its customers, Detto agrees that PivX may elect to fulfill those obligations, or any portion of them, and Detto shall reimburse PivX any costs and expenses so incurred by PivX. Detto agrees to indemnify and hold PivX harmless in accordance with the provisions of Section 4.4 to the extent that it breaches any of its covenants under this Section 2.8.

2.9 U.S. GOVERNMENT - RESTRICTED RIGHTS. Detto covenants to require its customers to accept a click-wrap agreement that, among other things, provides that Qwik-Fix Pro and accompanying documentation are deemed to be commercial computer Software and commercial computer Software documentation,

                                       2

respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of Qwik-Fix Pro and accompanying documentation by the U.S. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.10 BUSINESS DEVELOPMENT. Detto will engage in future business development with PivX as governed by the terms set forth in Exhibit A.

2.11 SALES FORECASTING; SALES METRICS; SALES REPORTING. Detto will provide sales forecasting, sales metrics and sales reporting to PivX as governed by the terms set forth in Exhibit A.

3. PRICE AND PAYMENT; SHIPMENT AND DELIVERY

3.1 SUGGESTED THIRD PARTY PRICES. Third Party prices are governed by the terms set forth in Exhibit A.

3.2 PER COPY FEES. Detto shall pay to PivX for each unit of Qwik-Fix Pro distributed hereunder per copy fees (the Per Copy Fees) as governed by the terms set forth in Exhibit A. In the event that PivX changes the Third Party prices, Per Copy Fees based on such changed prices shall apply to any order for Qwik-Fix Pro received by PivX after the effective date of the increase. PivX shall provide Detto with at least forty-five (45) days written notice of any increase in the Per Copy Fees.

3.3 PAYMENT. All payments to PivX shall be made within thirty (30) days after the receipt by Detto of the PivX's invoice. Detto shall pay PivX a late charge on outstanding amounts due equal to one and one-half percent (1.50%) per month or the maximum amount allowed by law, whichever is less. All payments shall be made in United States Dollars, free of any withholding tax and of any currency control or other restrictions to PivX. PivX shall have the right, at reasonable times and on reasonable notice, to inspect and audit the books and records of Detto to verify the accuracy of any statements. In the event that such an inspection discloses any error of any amount, the parties shall by appropriate payment promptly adjust for the error. If Detto fails to make payments when due, PivX shall be entitled to, in its sole discretion, to take any one or more of the following: (a) place Detto on credit hold, in which case, PivX may cease to fulfill Detto's orders to any new Third Parties; (b) rescind Detto's right to sell or distribute any additional Qwik-Fix Pro or Documentation hereunder; and (c) to require that Detto direct all future payments, for licenses sold in the past or in the future, from the Third Parties directly to PivX or a lock box or





an account designated by PivX for such purpose, to be applied by PivX to the payment default (and interest thereon) until such defaults have been satisfied. All amounts received by PivX hereunder shall be nonrefundable except for any payments received or held under PivX's control pursuant to clause c of the last sentence after Detto's payment default has been satisfied.

3.4 TAXES, TARIFFS, FEES. PivX's Suggested Prices and Per Copy Fees do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which may be required to be paid or collected upon the delivery of Qwik-Fix Pro or upon collection of the prices for Qwik-Fix Pro or the Per Copy Fees. Should any tax or levy be made, Detto agrees to pay such tax or levy and indemnify PivX against any claim for such amount. Detto represents and warrants to PivX that all Qwik-Fix Pro acquired hereunder is for redistribution in the ordinary course of Detto's business, and Detto agrees to provide PivX with appropriate resale certificate numbers and other documentation satisfactory to the applicable taxing authorities to substantiate any claim of exemption from any such taxes or fees.

3.5 SHIPMENT AND DELIVERY. PivX shall electronically deliver Qwik-Fix Pro to Detto. Detto shall inspect all software delivered to it, upon receipt and shall, within 10 days of receipt, give written notice to PivX of any claim of damage or missing portions. Should Detto fail to give such notice, or fail to obtain an extension of such 10-day period from PivX, the packages shall be deemed to be accepted by Detto. PivX will reasonably accommodate Detto's request to replace its master copy of software that becomes corrupted or damaged. Detto shall contractually require its Third Parties to report any claim of damage or shortages for Qwik-Fix Pro shipped to them within thirty (30) days of the Third Parties receipt of such package (or the time required by applicable law, if longer). PivX shall use commercially reasonable efforts to meet delivery dates requested by Detto, but in no event shall PivX be liable for its failure to meet such dates. In the event that PivX shall be unable to meet Detto's requested ship dates, PivX shall advise Detto of the change in or actual delivery schedule.

                                       3

3.6 SECURITY INTEREST. Detto hereby grants PivX a purchase money security interest in all Qwik-Fix Pro licensed to Detto, all physical media on which Qwik-Fix Pro is located, and all rights licensed to Detto pursuant to this Agreement in the amount of the Total Purchase Price. Detto also grants PivX a security interest in Detto's address list of Third Parties to secure Detto's payment, indemnification, and other obligations hereunder. To secure its rights hereunder, PivX shall have the right to file one or more UCC financing statements and to make such other filings as PivX shall deem appropriate. Detto shall cooperate with PivX with respect to all such filings. Upon PivX's demand, Detto agrees to execute promptly any financing statement, security agreement, chattel mortgage, applications for registration and/or similar documents, and to take any other action deemed necessary for registration or otherwise deemed necessary or desirable by PivX in order to perfect PivX's security interest hereunder. In the event of Detto's default hereunder, PivX may foreclose its security interests and exercise such other rights as provided under the UCC.

4. WARRANTY AND LIABILITY

4.1 PRODUCT WARRANTY. With respect to Qwik-Fix Pro delivered by PivX to Detto on CD-Rom, PivX warrants that for a period of thirty (30) days following delivery to Detto, the media on which Qwik-Fix Pro is furnished to Detto will be free from defects in materials and workmanship during normal use. PivX warrants that Qwik-Fix Pro will substantially conform to the user documentation. EXCEPT AS EXPRESSLY SET FORTH ABOVE, QWIK-FIX PRO AND DOCUMENTATION ARE PROVIDED AS IS. PIVX HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.2 PRODUCT INDEMNITY. PivX will indemnify, defend and hold Detto and its subsidiaries (each, an Indemnified Party), harmless from and against any and all claims, losses, costs, liabilities and expenses (including reasonable attorneys' fees), arising as a result of or in connection with any claim that Qwik-Fix Pro or Documentation infringes any intellectual property right of a third party provided: (i) the Indemnified Party promptly gives written notice of any claim to PivX; (ii) the Indemnified Party provides any assistance which PivX may reasonably request for the defense of the claim (with reasonable out of pocket expenses paid by PivX); and (iii) PivX has the right to control of the defense or settlement of the claim, provided, however, that the Indemnified Party shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense. Additionally, if an injunction or order issues restricting the use or distribution of any of Qwik-Fix Pro or Documentation, or if PivX determines that Qwik-Fix Pro or Documentation are likely to become the subject of a claim of infringement or violation of any proprietary right of any third party, PivX shall in its discretion and, at its option (a) procure the right to continue using, reproducing, and distributing Qwik-Fix Pro and Documentation; (b) replace or modify Qwik-Fix Pro and Documentation so that they become noninfringing, provided such modification or replacement does not materially alter or affect the specifications for or the use or operation of Qwik-Fix Pro; require return of Qwik-Fix Pro to PivX and refund any licensing fees relating to the future use of Qwik-Fix Pro.

4.3 LIMITATION OF LIABILITY. EXCEPT FOR PIVX'S OBLIGATIONS UNDER SECTION 4.2, IN NO EVENT SHALL PIVX'S OR ITS LICENSORS' LIABILITY TO DETTO OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY PIVX HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS. IN NO EVENT SHALL ANY PARTY OR PIVX'S LICENSORS BE LIABLE TO ANOTHER PARTY OR ANY THIRD PARTY FOR LOSS OF DATA, COSTS OF PROCUREMENTS OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES UNDER ANY CAUSE OF ACTION, EVEN IF





SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

                                       4

4.4 INDEMNIFICATION. Detto shall indemnify and hold PivX harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney's fees) which PivX incurs as a result of any claim based on any breach of any representation or warranty, covenant or agreement by Detto under this Agreement or any breach of this Agreement by Detto; provided: (i) that PivX promptly gives written notice of any claim to Detto; (ii) at Detto's expense, PivX provides reasonable assistance which Detto may reasonably request for the defense of the claim; and (iii) Detto has the right to control the defense or settlement of the claim, provided, however, that PivX shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.

5. TERM AND TERMINATION

5.1 TERM OF AGREEMENT. The term of this Agreement shall commence on the Effective Date and continue for six (6) months.

5.2 TERMINATION OF AGREEMENT. PivX may terminate this Agreement for convenience by giving at least thirty (30) days written notice of termination to Detto. This Agreement may be terminated by either party in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of the other party's receipt of written notice of such breach. If a material breach is cured within a thirty (30) day cure period this Agreement shall remain in effect as if no material breach had occurred. This Agreement shall terminate automatically without notice and without further action by the other party in the event that the other party becomes insolvent, which means it becomes unable to pay its debts in the ordinary course of business as they come due, or makes an assignment of this Agreement for the benefit of creditors.

5.3 EFFECT OF TERMINATION. Upon the expiration or termination of this Agreement:

(a) Detto shall, within thirty (30) days, pay to PivX all amounts due hereunder, return to PivX all products and demonstration copies received from PivX, erase any and all of the foregoing from all computer memories and storage devices within Detto's possession or control and, if requested, provide PivX with a signed written statement that Detto has complied with the foregoing obligations. All rights and licenses granted by PivX hereunder shall terminate, provided such termination shall not result in the termination of Licenses for copies of Qwik-Fix Pro which already have been purchased by Third Parties in accordance with the provisions of this Agreement.

(b) The following shall survive termination of this Agreement: Section 1.2, the last two sentences of Section 2.2, Sections 2.3 through and including 2.9, Section 3.6, Section 4, this Section 5 and Section 6. 5.4 LIMITATION OF LIABILITY UPON TERMINATION. In the event of termination in accordance with Section 5.1, PivX shall not be liable to Detto because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of Detto.

6. GENERAL PROVISIONS

6.1 CONFIDENTIALITY. By virtue of this Agreement, each party may have access to information that is confidential to the other (Confidential Information). Confidential Information shall include, but not be limited to, software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under the Agreement, and any information clearly identified in writing at the time of disclosure as confidential. A party's Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) is independently developed by the other party without

                                       5

use of or reference to the first party's Confidential Information. In the event, Confidential Information is required to be disclosed by law or other governmental authority, a party hereunder shall not be prohibited from disclosing such information by this Section provided that the responding party shall first have given prompt notice to the other party hereto and shall have made a reasonable effort to obtain a protective order restricting or limiting the disclosure of the Confidential Information to the extent possible.

6.2 THIS AGREEMENT CONTROLS; MERGER; AMENDMENT; WAIVER. This Agreement and Exhibit A to this Agreement shall control Detto's distribution of Qwik-Fix Pro and Documentation. All different or additional terms or conditions in any Detto purchase order or similar document shall be null and void. This Agreement, including Exhibit A, constitutes the final, complete, and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing signed by both parties. The failure or delay by either party in exercising any right, power or remedy under this Agreement shall not operate as a waiver of any such right, power or remedy.





6.3 NOTICES. All notices shall be given in writing and shall be considered effective when (a) personally delivered, (b) upon confirmed receipt if sent by electronic mail or facsimile; or (c) two (2) days after posting if sent by overnight registered private carrier (e.g. DHL, Federal Express, etc.).

6.4 ASSIGNMENT. Detto may not assign any of its rights or delegate any of its obligations hereunder, whether by operation of law or otherwise, without PivX's prior written consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

6.5 FORCE MAJEURE. PivX will not incur any liability to Detto or any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.

6.6 GENERAL. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. Detto is an independent contractor, and nothing herein shall be construed to create an employer-employee, partnership, joint venture, or agency relationship between the parties. Detto shall have no authority, right or power to create any obligation or responsibility on behalf of PivX.

6.7 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of California, excluding conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the personal and exclusive jurisdiction of and venue in the state and federal courts of Orange County, California, U.S.A. for any disputes arising out of this Agreement. This Agreement may be executed simultaneously in two or more counterparts, each one of which shall be deemed an original, but all of which shall constitute one and the same instrument.

IN WITNESS WHEREOF, the following duly authorized representatives have signed this Agreement on behalf of the entities indicated below, as of the date first above written.

DETTO                                     PIVX ----------------------------------------- --------------------------------------

----------------------------------------- -------------------------------------- By:                                       By: ----------------------------------------- -------------------------------------- Title:                                    Title: ----------------------------------------- -------------------------------------- Date:                                     Date: ----------------------------------------- --------------------------------------

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Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

Answer: 4109


Question: 03/01/05

607-1295 Richards Street   604.684.2255

Vancouver, BC V6B1B7   deep@rrt.ca   deep systems





Premium Managed Hosting Agreement

This is a managed hosting agreement between AstroNutrition.com and deep systems.  The effective term is 12 months beginning March 1, 2005 and ending February 28, 2006.

Included Monthly Services

System Administration

Management of SMTP, IMAP, DNS, SQL database and HTTP server software and systems for the AstroNutrition.com domain and web site.  This includes regular off-site backups of the website itself and the database.

Change Management

Management of site source code and integration of contributed software updates and bug fixes into zencart is included.

Personal Technical Support

24 x 7 emergency phone support and 1-business-day email response on non-critical issues.

Includes a 99 percent server uptime guarantee.

Available Professional Services

Project Management

Support of external development is charged at a rate of $55 CAD per hour.

Custom Software Development

New code enhancing the functionality of the system is charged at a rate of $55 CAD per hour.

Terms of Agreement

Managed hosting fees are $175 per month for a period of 12 months.  This includes up to 10 G of bandwidth, with overages at $20 for each 1 G beyond 10 in any given month. The billing cycle is the 1st of each month.

D/WLM/717334.1







- 2 -

03/01/05

607-1295 Richards Street   604.684.2255

Vancouver, BC V6B1B7   deep@rrt.ca   deep systems





Co-located Facilities

Servers are co-located at 700 West Georgia in downtown Vancouver on UPS and backup generator power.

Server Software

- FreeBSD 5 Operating System - Apache 2 HTTP Server - MySQL 4 Database Server - AWStats Advancd Web Stats Package - WebDAV interface for external developers - Subversion Change Management System - Trac Issue Tracking System and Project Knowledge Base

/s/ Ryan Thompson

/s/ Chester Ku   Ryan Thompson, Deep Systems

Chester Ku, Astro Nutrition

D/WLM/717334.1       - 2 - 
Question: Highlight the parts (if any) of this contract related to Expiration Date that should be reviewed by a lawyer. Details: On what date will the contract's initial term expire?

Answer: 223


Question: 1                                                                   EXHIBIT 10.4

                           SPONSORSHIP AGREEMENT                               ---------------------

               This Sponsorship Agreement is made between National Processing Company (NPC) and National City Bank of Kentucky (NCB) effective June 30, 1996 (Effective Date).

                                WITNESSETH:

               WHEREAS, NCB is a member in good standing of Visa U.S.A., Inc. (Visa) and a member in good standing of MasterCard International, Incorporated (MasterCard); and

               WHEREAS, NPC, pursuant to its arrangements with NCB, a member of Visa and MasterCard, provides data processing, settlement and authorization services for merchants who participate in the Visa and MasterCard bankcard programs (such activities being referred to as Merchant Bankcard Business); and

               WHEREAS, NPC and NCB have concluded that it is in their mutual best interests for NPC to continue to act as an agent of NCB for purposes of providing data processing, settlement and authorization services for merchants with respect to their Visa and MasterCard transactions and in connection with such agency arrangement, for NPC to continue to use NCB for certain banking relationships; and

               WHEREAS, the parties desire to formalize the terms and conditions on which NPC will act as agent of NCB, and NPC will perform certain functions, for purposes of conducting Merchant Bankcard Business;

             NOW, THEREFORE, in consideration of the premises, the representations, acknowledgments, and mutual agreements set out in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, NPC and NCB represent, acknowledge and agree as follows:

     ARTICLE I - MERCHANT PROCESSING, SETTLEMENT AND AUTHORIZATION SERVICES         ----------------------------------------------------------------------

               1.1 APPOINTMENT AS AGENT. NCB appoints NPC, and NPC agrees to serve, as NCB's sole agent (i) to provide authorization, processing and settlement services with respect to Visa and MasterCard transactions (Merchant Processing Services) to merchants who desire to receive Merchant Processing Services from NCB or NPC (Merchants) and (ii) to enter into contracts with merchants (Merchant Contracts) for the provision of Merchant Processing Services as agent of NCB; provided, however, that nothing herein shall limit NPC's right to provide, as agent for other members of Visa and MasterCard, Merchant Processing Services to merchants who desire to receive such services from NCB or others. NCB agrees that NPC may use NCB's name and its BIN, ICA and any other Visa and MasterCard identification numbers to the extent necessary or appropriate to perform the Merchant Processing Services.

               1.2 PERFORMANCE BY NPC. NPC shall have full responsibility for the proper performance of the Merchant Processing Services under each Merchant Contract except for the obligations and responsibilities which NCB assumes hereunder. Without limiting the foregoing, NPC shall provide authorization services to the Merchants, perform data capture services with respect to all credit card transactions by the Merchants, submit such data to the applicable Interchange, process retrievals and chargebacks, and direct the settlement of such transactions. In providing Merchant Processing Services, NPC agrees to comply with: (i) all Visa and MasterCard Bylaws, Manuals, Operating Regulations and other written materials as they may from time to time be amended which bind or apply to NCB as a member of Visa and MasterCard with respect to Merchant Processing Services or to NPC as a third party processor with respect to Merchant Processing Services (Rules), (ii) all agreements between Merchants and NCB with respect to Merchant Processing Services, and (iii) all applicable laws and regulations, whether state or federal. NPC agrees to enter into any agreements with Visa and MasterCard necessary to perform this Agreement

                                    1    2

in accordance with its terms, subject to the rights of NPC to terminate this Agreement pursuant to Section 6.2. Without in any way limiting the foregoing, NPC agrees as follows: (a) any material containing any of the Visa Card Program Marks used by it in performing this Agreement will prominently identify NCB by name and city adjacent to such marks and, in identifying NPC, will specify that NPC is acting as agent or representative of NCB; (b) any solicitation material used by NPC shall clearly disclose that NPC is acting as agent or representative of NCB; and (c) NPC acknowledges that it does not have authority to permit the use of Visa Card Program Marks by any of its own agents. NPC and NCB agree that the foregoing clauses shall be deemed modified from time to time to reflect any changes in Visa's requirements applicable to NPC's use of Visa Card Program Marks and solicitation material or to the terms required herein.





               1.3 MERCHANT CONTRACTS. NPC, as agent of NCB, shall be responsible for establishing the terms and conditions of the Merchant Contracts, including all changes thereunder, subject to Section 1.7 below. Without in any way limiting the authority granted in Section 1.1, NCB hereby authorizes NPC to use NCB's name to the extent necessary or appropriate in accordance with the terms of this Agreement to enter into and to renew Merchant Contracts, to modify Merchant Contracts to the extent necessary to assign them to NCB, to perform the Merchant Contracts and to take other necessary or appropriate actions with respect to the Merchant Contracts, all in accordance with requirements of Visa and MasterCard. As between NPC and NCB, NPC shall be responsible for all credit, fraud and other risks associated with each Merchant Contract.

               1.4 AUTHORIZATION SERVICES. NPC, or its designated third parties, shall provide the Merchants with telephonic or electronic authorization for all Visa and MasterCard transactions exceeding any floor amount specified pursuant to such Merchant's contract.

               1.5 PROCESSING AND SUBMISSION TO INTERCHANGE. NPC shall process all data received by it reflecting the Visa and MasterCard sales transactions and any related return credits by the Merchants and shall submit to the applicable Visa or MasterCard interchange networks (Interchange) Settlement Files reflecting such transactions and directing the applicable Interchange to pay the net amount due to an account established by NCB for the purpose of receiving all settlement amounts paid by Visa and MasterCard with respect to the transactions processed by NPC pursuant to this Agreement and effecting appropriate payments to the Merchants and NPC in accordance with this Agreement (the NCB Account).

               1.6 ACCOUNT SETTLEMENT.

               (a) PAYMENT INSTRUCTIONS. NPC shall prepare and transmit to          NCB, in a mutually acceptable format, instructions specifying the          payments to be made from the NCB Account to the Merchants and to NPC          pursuant to this Agreement (the Payment Instructions). Payment          Instructions shall be delivered to NCB in accordance with the schedule          and procedures established from time to time by the parties.

               (b) PAYMENT. In accordance with the Payment Instructions, NCB          shall pay the Merchants on a timely basis the net settlement amounts          due to them and shall credit NPC's account at NCB for the fees due to          NPC hereunder. Such payments to Merchants shall be effected through          mutually acceptable procedures which are consistent with the payment          procedures established pursuant to the Merchant Contracts. NPC shall          perform on NCB's behalf all of the administrative and bookkeeping          functions necessary to effect payment in such manner.

               1.7 DUE DILIGENCE BY NCB; NPC'S STANDARDS.

               (a) DUE DILIGENCE PRIOR TO EXECUTION OF AGREEMENT. Senior          management officials of NPC have met with senior management officials          of NCB and have discussed with the NCB officials the credit and          financial review procedures and standards used by NPC in deciding          whether to accept or retain Merchants as customers for Merchant          Processing Services, as well as NPC's experience with respect to any          losses resulting from financial failures or fraud by its merchant          customers. Schedule A attached hereto outlines the credit and financial          review procedures and standards currently used by NPC. NPC represents

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      to NCB, and has provided NCB's senior management with financial          information showing, that for 1994 and 1995 combined, the losses          incurred by NPC as a result of financial failures or fraud by its          merchant customers have averaged less than .60% of NPC's net revenues          from Merchant Processing Services.

               (b) CONTINUING DUE DILIGENCE: NPC'S RISK STANDARDS. NPC shall          keep NCB's senior management advised of any material changes in the          credit and financial review procedures and standards and of any          material exceptions to such procedures and standards which may from          time to time be made with respect to particular Merchants. NPC shall          not make any such changes or exceptions until its management committee          has approved such changes or exceptions after carefully evaluating the          relative advantages and disadvantages expected to result from such          changes or exceptions. NPC also shall continue to advise senior          management officials of NCB on a timely basis with respect to any          substantial loss (meaning any loss of $1,000,000 or more with respect          to a single Merchant or $3,000,000 or more in the aggregate in any          twelve month period) incurred by NPC as a result of any financial          failures or fraud by its merchant customers. If NCB's senior management          officials reasonably determine from time to time that any changes are          needed in NPC's credit and financial review procedures and standards or          in the implementation thereof in order to avoid any significant          increase in NPC's losses from financial failures or fraud by its          merchant customers, then NCB shall so notify NPC in writing, and NPC          and NCB shall mutually agree upon, and NPC shall implement appropriate          changes.

               (c) DUE DILIGENCE BY NCB FOR NPC PRICING STANDARDS. Senior          management officials of NPC have met with senior management officials          of NCB and have discussed with the NCB officials the pricing procedures          and standards used for Merchants as customers for Merchant Processing          Services. NPC shall keep NCB's senior management advised of any





      material changes in its pricing procedures and standards and of any          material exceptions to such procedures and standards which may from          time to time be made with respect to particular Merchants. NPC shall          not make any such changes or exceptions until its management committee          has approved such changes or exceptions after carefully evaluating the          relative advantages and disadvantages expected to result from such          changes or exceptions. If NCB's senior management officials reasonably          determine from time to time that any changes are needed in NPC's          pricing procedures and standards or in the implementation thereof, then          NCB shall so notify NPC in writing, and NPC and NCB shall mutually          agree upon, and NPC shall implement appropriate changes.

                 ARTICLE II - AUTHORITY OF JOINT OFFICERS                     ----------------------------------------

               2.1 JOINT OFFICERS. In order to enhance NPC's effectiveness as an agent of NCB, the parties agree and acknowledge that it is desirable for one or more officers of NPC to serve also as an officer of NCB (the Joint Officers) so that such persons shall have clear authority to represent NCB on matters relating to Merchant Processing Services. Accordingly, the Board of Directors of NCB shall elect the NPC officers named in Schedule B as Contracting Officers of NCB only with respect to matters pertaining to Merchant Processing Services. From time to time during the term of this Agreement, the Board of Directors of NCB may elect other officers of NPC as officers of NCB in addition to or in lieu of the Joint Officers. The authority of each Joint Officer to act as an officer of NCB shall terminate immediately upon termination of this Agreement or the termination or suspension of employment of that person by NPC for whatever reason or the removal of that person by the Board of Directors of NCB as an officer of NCB.

               2.2 AUTHORITY TO REPRESENT NCB. Each Joint Officer or its designated representative shall have authority to be the designated recipient of all letters, correspondence and other material from Visa and MasterCard to NCB as a member which relate to Merchant Processing Services, to attend as NCB's representative those meetings for members of Visa and MasterCard which relate to Merchant Processing Services, to maintain on behalf of NCB copies of all Merchant Contracts to which NCB is a party, to act generally as the NCB representative with respect to Merchant Processing Services in discussions, meetings and otherwise between NCB as a member and Visa or MasterCard, and to take such other actions on behalf of NCB That may be required by applicable Visa or MasterCard rules to be performed by a member and that are necessary or appropriate in order to perform this Agreement and effect the parties' intent with respect to this Agreement. NPC shall keep NCB, or such other person

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as may be designated by NCB, advised of all material, non-routine actions taken on behalf of NCB by any of the Joint Officers and shall consult in advance with NCB or such other designated person with respect to any material, non-routine actions to be taken by any of the Joint Officers on behalf of NCB.

               2.3 COMPENSATION. Except to the extent NCB and NPC otherwise agree, all compensation of the Joint Officers shall be paid by NPC, and NCB shall have no obligation to compensate any of the Joint Officers.

                      ARTICLE III - BANKING SERVICES                          ------------------------------

               3.1 MERCHANT PROCESSING - BANKING SERVICES. As soon as practicable after the Effective Date NPC shall enter into agreements or make other mutually acceptable arrangements with NCB pursuant to which NCB will provide those banking services which are necessary for NPC to provide the Merchant Processing Services and which the parties wish NCB to provide.

               3.2 AUTHORITY TO ESTABLISH BANK ACCOUNTS. Each Joint Officer shall have authority to establish at NCB or any other mutually acceptable financial institution any deposit accounts on behalf of NCB as may be necessary to provide some or all of the Merchant Processing Services contemplated by this Agreement for such periods as NCB and NPC agree. No provision of this Agreement authorizes or shall be construed to authorize any Joint Officer or NPC to incur any debt to NCB or any other financial institution, or to create any overdraft, which NCB is obligated directly or indirectly to repay.

               3.3 LOANS AND OVERDRAFTS. Nothing in this Agreement shall be deemed to create any obligation on the part of NCB to loan or advance to NPC any amounts in connection with Merchant Processing Services for any period of time.

                      ARTICLE IV - FEES AND EXPENSES                          ------------------------------

               4.1 CHARGES TO MERCHANTS. As between NPC and NCB, NPC shall receive all fees, discounts and other amounts payable by Merchants for Merchant Processing Services with respect to Merchant Contracts.

               4.2 EXPENSES. NPC shall bear all expenses of maintaining facilities and connections necessary to provide Merchant Processing Services except for the facilities and connection maintained by NCB for purposes of effecting payments pursuant to Section 1.6(b). In addition, NPC agrees to pay or reimburse NCB in full all interchange or issuer reimbursement fees on outgoing





merchant sales volume, as well as all fee assessments or charges imposed on NCB by Visa or MasterCard as a result of the Merchant Processing Services performed by NPC. Such fees shall be paid by NPC directly when due or shall be paid by NPC to NCB on the banking day immediately prior to the day on which NCB must pay such fees. All such fees, assessments and charges for which NCB seeks payment by NPC shall, upon request, be documented to NPC's reasonable satisfaction as being attributable to NPC's Merchant Processing Services.

                        ARTICLE V - INDEMNIFICATION                            ---------------------------

               5.1 INDEMNIFICATION. NPC agrees to indemnify, defend and save NCB, its directors, officers and employees harmless from all losses, claims, judgments, awards, penalties, expenses and other amounts of any nature arising out of:

               (a) NPC's failure to perform this Agreement in accordance with        its terms, including, but not limited to, the failure to pay expenses,        charges and other amounts in accordance with the provisions of this        Agreement,

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               (b) The negligent exercise of or the exceeding by any Joint          Officer of the authority granted pursuant to this Agreement to act as          an officer of NCB, or,

               (c) NCB's grant of authority to NPC pursuant to this          Agreement,

including, but not limited to, all court costs, investigation expenses and the reasonable fees and expenses of separate counsel for NCB selected by NCB, provided, however, that NCB shall not be entitled to indemnification as to amounts arising from the negligence or willful misconduct of NCB.

                   ARTICLE VI - COMPLIANCE MODIFICATIONS                       -------------------------------------

               6.1 COMPLIANCE MODIFICATIONS. In the event that:

               (a) the laws, rules and/or regulations or any official       interpretations thereof applicable to NCB as a National Bank or the Visa       or MasterCard rules and/or regulations or any official interpretations       thereof applicable to NCB and the matters covered by this Agreement are       modified such that

                      (i) any modifications in the relationship or               transactions contemplated hereby between NCB and NPC or in the               provisions of this Agreement are needed to comply with any such               laws, rules, regulations or official interpretations thereof, or

                      (ii) some or all of the activities contemplated by this               Agreement are prohibited, or

               (b) Visa or MasterCard requires, as a condition to performance        of this Agreement, that NPC enter into an agreement with Visa or        MasterCard that NPC considers unacceptable,

then at NPC's request, NCB will cooperate in making any modifications to this Agreement and to the parties' relationship hereunder to the extent any such modifications will permit NPC to continue processing, settling and authorizing bankcard transactions (or continue performing some of such functions) in compliance with the laws, rules, regulations or any official interpretations thereof applicable to NCB as a National Bank and the Visa and MasterCard rules, regulations, and interpretations thereof and any contractual terms required by Visa or MasterCard and acceptable to NPC (any such modifications being referred to as Compliance Modifications) provided that such Compliance Modifications are reasonable and are not unduly burdensome to NCB, and NPC reimburses NCB for any additional costs reasonably incurred by NCB in connection with such Compliance Modifications.

               6.2 FAILURE TO MAKE COMPLIANCE MODIFICATION. If NPC does not request any Compliance Modifications or the parties cannot agree upon the terms of any Compliance Modifications, then either party may terminate this Agreement upon prior written notice to the other party effective at the later of: (a) the deadline imposed by Visa or MasterCard for complying with any such rule, regulation, official interpretation or contract requirement or (b) 120 days after actual notice to NPC of such rule, regulation, interpretation or contract requirement.

                    ARTICLE VII - TERM AND TERMINATION                        ----------------------------------

               7.1 TERM. The term of this Agreement shall be five years commencing on the Effective Date and ending at the close of business on the fifth anniversary of the Effective Date. This Agreement shall automatically renew for successive one-year terms unless one party gives the other party written notice of non-renewal at least six months prior to automatic renewal.





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               7.2 TERMINATION. Either party may terminate this Agreement without penalty and without prejudice to any claims arising prior to termination as follows:

               (a) Upon the written agreement of both parties.

               (b) Upon the other party's breach of this Agreement provided          the terminating party has given written notice of the breach to the          other party specifying the breach, the action necessary to cure the          breach and the breaching party has not cured the breach within five          business days after notice is given of any failure by NPC to provide          any funds required hereunder to be provided by NPC to pay Merchants or          within thirty business days after notice is given of any other breach.

               (c) By NCB immediately upon NPC's voluntary filing of any          petition or complaint seeking relief under any federal or state          bankruptcy or other debt relief statute or upon an involuntary petition          in bankruptcy being filed against NPC if such petition is not dismissed          within sixty days after it is filed.

               (d) By NPC immediately in the event that any agreements          between NCB and Visa and/or MasterCard or NCB's membership in either          such bankcard association shall be terminated or materially limited          which termination or material limitation would impair the ability of          NPC to authorize, process or settle merchant bankcard transactions.

               7.3 SURVIVAL. The provisions of Sections 3.3, 4.2, 5.1, 8.1 and 10.6 of this Agreement shall survive any termination. No termination shall prejudice any claim or rights of any party which accrued prior to termination.

                      ARTICLE VIII - CONFIDENTIALITY                          ------------------------------

               8.1 CONFIDENTIALITY. In performing this Agreement, each party will have access to confidential information of the other. Each party agrees to hold in confidence and to instruct its employees and agents to hold in confidence all information and materials, in whatever form, reasonably designated as confidential by the party requesting confidentiality. NPC agrees to comply with all laws and regulations relating to confidentiality of customer lists and other information which are applicable to NCB and its agents or to NPC. NCB agrees to comply with all contractual obligations of NPC actually known to NCB and all laws and regulations applicable to NCB or NPC relating to confidentiality of customer lists and other information.

                           ARTICLE IX - NOTICES                               --------------------

               9.1 NOTICES. All notices which are required or permitted by this Agreement shall be in writing and shall be (i) delivered personally to the designated addressee, (ii) sent by the United States Mail addressed to the designated person by certified mail, return receipt requested, all postage prepaid, or (iii) sent by overnight delivery service addressed to the designated person, all charges prepaid, or (iv) by other means such as facsimile machine if the designated addressee acknowledges receipt in writing. Notices shall be addressed as follows:

If to NPC:                         Louis Parker                         Executive Vice President                         National City Processing Company                         1231 Durrett Lane                         Louisville, KY  40285-0001

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with copies to:         Kurt Knipp                         Executive Vice President                         National City Processing Company                         1231 Durrett Lane                         Louisville, KY  40285-0001

If to NCB:              Peter J. Barrick                         Senior Vice President                         National City Bank of Kentucky                         101 S. 5th Street                         Louisville, KY  40202

with copies to:         Curtis M. Jacobs                         Senior Vice President and Counsel                         National City Bank of Kentucky                         101 S. 5th Street                         Louisville, KY  40202





Notices personally delivered are given when received. Notices sent by United States Mail, certified mail, return receipt requested, are given five business days after delivery to the United States Postal Service unless prior actual receipt by the addressee is proven. Notice sent by overnight delivery service is deemed given one business day after delivery to and acceptance by overnight delivery service for next day delivery. Notices sent by other means and acknowledged are deemed given when acknowledged in writing.

                         ARTICLE X - MISCELLANEOUS                             -------------------------

               10.1 HEADINGS. The headings are for information and are not part of this Agreement.

               10.2 ENTIRE AGREEMENT, MODIFICATION. This Agreement and the attachments to it represent the entire agreement of the parties with respect to the subject matter of the Agreement. This Agreement may not be modified except by a written agreement which expressly refers to the Agreement and is signed by both parties.

               10.3 SEVERABILITY. If any section of this Agreement is deemed void, illegal or unenforceable, that section shall be severed and the balance shall remain in effect.

               10.4 GOVERNING LAW. This Agreement and its interpretation shall be governed by the laws of the United States and, to the extent not inconsistent therewith, by the laws of the Commonwealth of Kentucky without regard to conflicts of laws rules.

               10.5 BINDING AGREEMENT, ASSIGNMENT PROHIBITED. This Agreement shall bind the parties, their successors and permitted assigns. Neither party shall assign this Agreement or any rights under it except with the prior written consent of the other.

               10.6 MONITORING BY NCB. NPC shall admit properly identified and authorized NCB employees and agents onto its premises for purposes of monitoring NPC's compliance with this Agreement. It is understood that such monitoring will occur during normal business hours, will be preceded by reasonable notification to NPC, and must not interfere with NPC's normal operations.

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          IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the Effective Date.

                              NATIONAL PROCESSING COMPANY

                              By: /s/ Mark D. Schatz                                      --------------------------------                                  Name: Mark D. Schatz                                        ------------------------------                                  Title: Vice President                                         -----------------------------

                              NATIONAL CITY BANK OF KENTUCKY                                  By: /s/ Peter J. Barrick                                      --------------------------------                                  Name: Peter J. Barrick                                        ------------------------------                                  Title: Senior Vice President                                         -----------------------------

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                                SCHEDULE A                                      to the                         SPONSORSHIP AGREEMENT BETWEEN NCB                                        and                                        NPC                                       dated                                   June 30, 1996

1.       BUSINESSES GENERALLY NOT SOLICITED. NPC does not generally solicit          customers engaged in any of the following businesses, but in special          circumstances it sometimes accepts customers engaged in one of these          businesses. Such exceptions occur primarily when NPC acquires another          processor's customer base or when NPC enters into a processing          agreement with an ISO/MSP which maintains merchant customers engaged in          such businesses.          - Telemarketing (In-bound or out-bound)





      - Pawn Shops          - Door-to-Door Sales          - Massage Parlors          - Bail & Bond Payments          - Business operated out of Residence          - Flea Markets          - Fulfillment Houses          - Timesharing          - Travel Clubs/Packages

2.       DOCUMENTATION REQUIRED FOR MERCHANT CUSTOMERS          - Merchant Application - all pertinent personal and business            information, including previous processor          - Site Visitation Report (when applicable)          - Bankcard Agreement - signed by Principal/Officer          - Personal Guarantee - signed by Principal (when applicable)          - Business Financial Statements (when applicable)          - Business and/or Personal Income Tax Filings if Financial Statements            unavailable (when applicable)          - Catalogues, Advertising Copy, etc. - as needed

3.       CREDIT REVIEW PROCEDURES. The following credit review procedures are          completed by NPC before a Merchant is accepted as a new customer. These          procedures may be repeated with respect to any existing Merchant          customer if such Merchant has unusual credit card activity, unusual or          higher than normal chargebacks, or if other circumstances arise which,          in the judgment of NPC's management, warrant a new or on-going credit          review.          - Inquire against Terminated Merchant File          - Obtain and Review Personal Credit Reports on Principal(s) (when            applicable)          - Obtain and Review Dun & Bradstreet Report (when applicable)          - Review of Financial Statements, Tax Returns and all other pertinent            data (when applicable)          - Investigation of previous processing relationship

4.       REASONS FOR DECLINING A MERCHANT.          - Listed on the terminated merchant file          - Insufficient credit history established          - Significant derogatory credit - personal or business          - Poor financial condition of business          - Derogatory report from previous processor          - Unacceptable line of business

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                                SCHEDULE B                                      to the                         SPONSORSHIP AGREEMENT BETWEEN NCB                                        and                                        NPC                                       dated                                   June 30, 1996

                 NAME                          NCB TITLE                     ----                          ---------                                                         Tony G. Holcombe              Contracting Officer

           Kurt S. Knipp                 Contracting Officer

           Wayne A. Chatham, Jr.         Contracting Officer

                                    10 
Question: Highlight the parts (if any) of this contract related to License Grant that should be reviewed by a lawyer. Details: Does the contract contain a license granted by one party to its counterparty?

Answer:
2712