BANCORP BANK (THE); PHOENIX PAYMENT SYSTEMS, INC. DBA ELECTRONIC PAYMENT EXCHANGE (EPX)

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10.5. Assignment. This Agreement may not be assigned by Merchant without the prior written consent of Bank and EPX. Bank and/or EPX may assign this Agreement without limitation, as long as the assignment is to a third party integrated into InfoSend. Assignment of this Agreement by Bank or EPX shall relieve such party of any further obligations under this Agreement. 10.6. Captions. Captions in this Agreement are for convenience of reference only and are not to be considered as defining or limiting in any way the scope or intent of the provisions of this Agreement. 10.7. Financial Accommodations. Bank, EPX and Merchant intend this Agreement to be construed as a contract to extend financial accormnodations for the benefit of Merchant. 10.8. Governing Law. The parties agree that any dispute arising out of and/or in the course of the relationship established by this Agreement, or by the Agreement itself, shall be decided, unless mutually resolved by the parties hereto, in the State where the defendant is physically located, and, the parties hereby submit to said jurisdiction and venue. 10.9. Power of Attorney. Merchant appoints Bank and EPX as its attorneys-in-fact to execute such documents as are necessary or desirable to accomplish perfection of any security interests. The appointment is coupled with an interest and shall be irrevocable as long as Merchant owes any amount to Bank or EPX. 1 O.1 O. Attorney's Fees. In the event that any action is filed in relation to this Agreement or the relationship created hereby, the unsuccessful party in the action shall pay to the successful party, in addition to all sums awarded by the court, actual costs and expenses for the successful party's attorneys' fees. 1 O.1 1. Setoff. hz addition to any other legal or equitable remedy available to it in accordance with this Agreement or by law, Bank and/or EPX may set off any amounts due to Bank and/or EPX under this Agreement against any property of Merchant in the possession or control of Bank or EPX. 10.12. No Waiver. Any delay, waiver or omission by a party 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 constnied to be a waiver of any subsequent breach or default of the same or any other terms, provisions or covenants on the part of the other party. All remedies afforded by this Agreement for a breach hereof shall be cumulative. 10.13. Waiver. To the extent that Merchant becomes a debtor under any chapter of title 1 1 of the United States Code and such event does not result in the termination of this Agreement, Merchant hereby unconditionally and absolutely waives any right or ability that Merchant may otherwise have had to oppose, defend against or otherwise challenge any motion filed by Bank or EPX for relief from the automatic stay of 1 1 U.S.C. § 362(a) to enforce any of Bank's or EPX's rights or claims under this Agreement. 10.14. Force Majeure. The parties shall be excused from performing any of their respective obligations under this Agreement which are prevented or delayed by any occur-ence not within their respective control including but not limited to strikes or other labor matters, destruction of or damage to any building, natural disasters, accidents, riots or any regulation, rule, law, ordinance or order of any federal, state or local government authority. 10.15. Severability. If any provisions of this Agreement shall be held, or deemed to be, or shall, in fact, be, inoperative or unenforceable as applied in any particular situation, such circumstance shall not have the effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses Initials Page ld o(= 19