Gold Exchange – Corporate Application

This Agreement ("Agreement") is entered into on the date set forth on Appendix "A" (the "Effective Date") by and between the client ("Client") and Refinement Services, LLC, a New York limited liability company with its principal place of business at 333 Pearsall Avenue, Suite 201, Cedarhurst, NY 11516 ("RS"; and together with Client, the "Parties", and each, individually, a "Party").

WHEREAS, RS has developed a web-based platform, methodology and processing capability which facilitate the purchase of gold and silver from End-Users (the "System");

WHEREAS, Client wishes to utilize the System through usage of the Website and the Portal (each as defined below) in exchange for RS receiving a fixed percentage of Gross Value (as defined below).

NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is acknowledged, and in consideration of promises and of the mutual agreements and covenants hereinafter set forth, the Parties, intending to be legally bound, agree as follows:

1. Defined Terms. Capitalized terms used in this Agreement shall have the meanings specified in this Section 1:
   1. "Affiliate" means, with respect to any specified Person, any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such specified Person.
   2. "Client Amount" means, with respect to a Completed Transaction, the Gross Value less (i) the RS Transaction Processing Fee, and (ii) the End User Amount.
   3. "Client Content" means any materials provided by Client to RS for incorporation in the Website, including, but not limited to, any Client trade names, logos, graphics, artwork, designs and/or text.
   4. "Completed Transaction" means a transaction in which the End-User accepts the End-User Amount (i.e. cashes or deposits a check, or requests and receives compensation of the End User Amount in another form); provided however, that should an End-User fail to accept payment or request a return of Inventory within ninety (90) days of End-User's initial receipt of the End User Amount, such transaction may be deemed a "Completed Transaction."
   5. "End-User" means any Person who uses the Website to sell gold or silver to Client.
   6. "End-User Percentage" means the percentage of Gross Value to be paid to the End-User for gold or silver, as determined by Client.
   7. "Gross Value" means, for a particular Inventory delivered by an End-User, the Spot Price for the applicable Inventory multiplied by the purity in karats and the weight of such applicable Inventory.
   8. "Inventory" means gold or silver purchased from End-Users through the System.
   9. "Person" means any natural person, general or limited partnership, corporation, limited liability company, firm, association, organization or other legal entity.
   10. "RS Transaction Processing Fee" shall mean the percentage set forth in Appendix "A" of the Gross Value of any Completed Transaction.
   11. "Website Materials" has the meaning set forth in Section 3.1 below.
   12. "Software" means the software, computer programming/formatting code or operating instructions developed by RS and used to create the System or any portion of the Website Materials, and the related intellectual property and know-how.
   13. "Spot Price" means, the spot price per unit for gold or silver, as applicable, as posted for the London P.M. or afternoon fix of the first business day in which such Inventory was received by RS. For inventory processed before 11:00am Eastern Time, or in the event that there is no London Fix price publicly posted as of 11:00am Eastern Time on a business day, the Spot Price shall mean the London Fix Price for gold or silver, as applicable, of the previous business day.
2. License and Restrictions.
   1. License Grant. RS hereby grants to Client a limited, non-transferable, non-exclusive, revocable license to use the Website Materials and its related functionality solely for the purposes set forth herein and subject to the terms and conditions set forth herein. No rights to use the System, Software or the Website Materials are granted to Client except as otherwise expressly set forth herein.
   2. Independently Developed Works.
      1. Client shall not incorporate into, use, or copy for the creation of, any programs or software, any portion(s) of the Software or any Confidential Information (hereinafter defined) of RS. Client acknowledges that it has no rights in or with respect to any of the Website Materials, Software or System, Web-Domains or the Confidential Information of RS, other than as specifically set forth in this Agreement. Neither Client nor its affiliates may directly or indirectly (i) modify, disassemble, decompile, reverse engineer, or make derivative works of the Software, System, or any Website Materials; or (ii) use the Software, System, or any Website Materials in any way not otherwise expressly provided for in this Agreement.
      2. Client acknowledges and agrees that RS has the right to create or develop computer programs or software of any type or nature for clients other than Client and that RS shall not be restricted in developing, marketing, or selling such to any client or potential client. Client specifically acknowledges that RS utilizes the Software and the System to make websites similar to the Website for other parties, including parties which may be competitors of Client.
3. Responsibilities.
   1. Website. Client shall provide RS with all necessary Client Content. Following the delivery of the Client Content, RS shall purchase at RS expense a unique web-domain (URL) and deliver to Client (i) a front-end website interface on unique web-domain that includes the Client Content (the "Website"), (ii) content or hyperlinks for Client to include on Client's existing website, ((i), (ii), collectively, the "Website Materials").
   2. Improvements. RS may develop, test and implement modifications and enhancements to the System or any Website Materials (collectively "Improvements") during the Term. Malfunction fixes and Improvements made by RS in the normal course of upgrading its software and systems may be made available to Client.
   3. Hosting. The Website and the Portal will each be hosted by a third-party web-hosting service selected by RS (other than with respect to 3.1(ii)). RS shall use commercially reasonable efforts to ensure that the third-party web-hosting service provides the System with a minimum of 99.5% up-time, not including planned down-time for maintenance and service.
   4. End-User Support. RS shall use reasonable efforts to provide customer service to End-Users that is in accordance with generally accepted standards in the industry.
   5. Security. Client shall require all Client employees or agents who register to use the Website or Portal to create a unique user name and password. RS shall take reasonable precautions to prohibit unauthorized access to or amendment, re-writing, or hacking of the Website or any Website Materials. Client shall take reasonable measures to prevent unauthorized access to any of its internal systems which are linked or provide access to the Website or the System, including, without limitation, the Portal. Client shall be solely responsible for the addition and removal of users to or from each of the Website and the Portal, and the determination of the privileges for such users.
   6. End-User Payments. RS is to remit payment to the End-User no later than five (5) business days following its receipt of Inventory from an End-User in the System. The amount which an End-User receives shall be the "End-User Amount."
   7. RS Responsibilities. RS shall perform all fulfillment services necessary to effectuate the institution and implementation of the System and Website, at its own expense, including, without limitation, the acceptance of End User deliveries of Inventory, the weighing of the Inventory, the processing of all incoming shipments of Inventory, arranging for refining the materials received and the payment of the Client Amount and the End-User Amount for Completed Transactions, the storage of inventory pending the status of a Completed Transaction, the manufacture and delivery of precious metals mailing kits, the delivery to Client of status reports respecting Inventory received, End-User inquiries, End-User payments made by RS and similar matters, and updating and maintenance of the Software, System and Website Materials. RS shall be responsible for the payment of postage charges and courier delivery charges (e.g. USPS, FedEx). RS shall not make any payments in respect of items sent to RS other than Inventory.
   8. Client Responsibilities.
      1. At least once per calendar month, Client shall send a dedicated marketing email discussing the Website to its entire email marketing list (other than those email addresses which have specifically requested to be excluded from Client's marketing emails). Client shall further include hyperlinks to the Website (i) on all pages of Client's websites, and (ii) in the footer of all marketing emails sent by Client.
      2. Except as otherwise set forth herein, Client shall have sole responsibility with respect to the amount of the End User Percentage, Client's marketing costs, all other business matters of Client, as well as compliance with all applicable federal, state, local and municipal laws, statutes, rules, codes and regulations.
      3. Client specifically acknowledges that RS has no responsibility except as specifically set forth herein and RS makes no representation or warranty of any type as to the revenues, profits or economic benefit that may result from Client's use of the Website Materials, the Software or the System.
      4. Client acknowledges that (i) RS shall make the sole determination as to Gross Value of Inventory, (ii) the only way to determine the exact purity of any Inventory would require destruction of such Inventory, which would preclude the possibility of fulfilling a return request of such Inventory in the same manner sent by End User, and therefore RS instead uses commercially reasonable efforts, including industry-accepted testing methods and scales to determine the purity in karats and the weight of the applicable Inventory for purposes of calculating Gross Value without destroying such Inventory, and (iii) such determination shall be final and binding on Client and End User for purposes of calculating amounts owed to each of Client and End User.
4. Compensation to RS and Client.
   1. RS shall receive and be entitled to retain, the RS Transaction Processing Fee for all Completed Transactions.
   2. Within 30 days after the end of each calendar month in which there were Completed Transactions, (i) RS shall provide to client a detailed statement of all Completed Transactions for such prior calendar month, and (ii) remit to the Client the Client Amount with respect to Completed Transactions completed during such prior calendar month.
5. Exclusivity by Client. During the Term, Client and its Affiliates shall be prohibited from purchasing gold or silver through any web-based means or method other than the System or Website.
6. Representations and Warranties; Indemnification.
   1. Representations and Warranties; Liability. Client hereby warrants and represents that (i) it is the rightful owner or licensee of the Client Content; (ii) it has all licenses, permits and corporate authority to enter into and perform this Agreement and all of the transactions contemplated herein; and (iii) it's performance under this Agreement does not and shall not violate any federal, state, local or agency laws.
   2. Exclusion of Damages. In no event shall either Party have liability to the other for any lost profits, incidental, indirect, special, consequential, or punitive damages, however caused.
7. Restrictive Covenants.
   1. Confidentiality.
      1. All information disclosed by a Party to the other Party, whether written or oral, that is designated as confidential or that reasonably should be understood to be confidential based upon the nature of the information or the circumstances of disclosure, shall be deemed to be "Confidential Information" for the purposes of this Agreement. Confidential Information shall not include information that is or generally becomes known to the public other than through dissemination by a recipient Party hereunder, was known by the recipient Party prior to its disclosure by the disclosing Party, or was received from a third party without breach of any obligation owed to the disclosing Party.
      2. A recipient of Confidential Information (i) shall protect such Confidential Information with the same degree of care that it uses to protect the confidentiality of its own confidential information, but in no event less than reasonable care, and (ii) shall not disclose Confidential Information for any purpose outside the scope of this Agreement or to any individual who does not have a need to know such Confidential Information. Notwithstanding the aforesaid, either Party hereto shall have a right to disclose Confidential Information if compelled to do so under applicable law, provided the disclosing Party provides prior written notice of such disclosure to the other Party.
   2. End-User Data To the extent that RS receives access to End-User data, including but not limited to name, telephone number, address, email address, or any data that identifies an End-User ("End-User Data"), RS shall (i) treat such data as Confidential Information in accordance with the confidentiality provisions of this Agreement; (ii) transmit such data only via secure means.
   3. Publicity. Upon the execution of this Agreement, each Party shall have the right to draft and disseminate a press release announcing such event and shall have the right to list the other Party and any Affiliates including logo(s), with or without hyperlinks, on their websites to the other Party's websites.
8. Intellectual Property. Any and all trademarks, service marks, trade names, logos, artwork, designs, trade dress, web-domains Website Materials and copyrighted computer programs and systems controlled or licensed by RS and any goodwill appurtenant thereto, used in connection with the transactions contemplated herein, including, without limitation, as related to the Software, System, or Website Materials, are and shall remain the exclusive property of RS. Any and all trademarks, service marks, trade names, logos, artwork, designs, trade dress and web-domains owned, controlled or licensed by Client prior to the Effective Date and any goodwill appurtenant thereto, used in connection with the transactions contemplated herein, including, without limitation, the Client Content, are and shall remain the exclusive property of Client.
9. Use by Affiliates. Client will ensure that its Affiliates acknowledge the obligations and covenants assumed by Client in this agreement.
10. Term; Termination; Survival.
    1. Term. This Agreement shall commence on the Effective Date listed in Appendix "A" and remain in full force and effect for the term listed in Appendix "A" and renew for successive terms of the same length of time (collectively the "Term"), unless a Party hereto notifies the other Party hereto, in writing, that it shall not be renewing the Term, and said notification is received by such other Party at least thirty (30) days prior to the end of the Term or any renewal Term hereof.
    2. Termination. Either party may terminate this Agreement during Term upon written notice to the other party, provided that such termination shall not take effect for thirty (30) days following such notice.
    3. Survival. The provisions of Sections 2.2, 6.2, 6.3, 7.1, 7.2, 7.4, Articles 8 and 11 shall survive termination of this Agreement.
11. General Provisions.
    1. Assignment. This Agreement or any part thereof, may not be assigned, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Notwithstanding the foregoing, Parties shall have the right to assign this Agreement in whole or in part in connection with the sale of all or a part of its business or brands or those of its Affiliates.
    2. Notices and Communications. All notices and other communications provided must be sent if to RS: Refinement Services LLC, PO Box, 507, Cedarhurst, NY 11516; any Party hereto under this Agreement or any instrument executed pursuant hereto shall be in writing and shall be deemed to have been duly given (a) when delivered, if sent by registered or certified mail (return receipt requested) or if personally delivered, (b) upon the expiration of forty-eight (48) hours after transmission, if sent by email if a confirmation of transmission is produced by the sending computer (and a copy of each email transmission promptly shall be sent by ordinary mail) or, (c) on the second following business day, if sent by overnight mail or overnight courier, in each case to the Parties at their respective addresses set forth herein (or at such other address for a Party as shall be specified by like notice).
    3. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of New York applicable to contracts made and to be performed wholly within such state, without reference to conflict of law principles.
    4. Arbitration. Any dispute arising under this Agreement shall be subject to binding arbitration by a single Arbitrator with the American Arbitration Association, in accordance with relevant industry rules, if any. The arbitration will be held in New York. Judgment on any award rendered by the Arbitrator may be entered in any court of competent jurisdiction.
    5. Jurisdiction. Nothing in Section 11.4 shall prevent a Party from seeking injunctive relief in the Courts of New York, or the United States District Court in New York. RS and Client: (1) consent and submit to the personal jurisdiction of any of such courts in any such action or proceeding and (2) waive any claim or defense in any such action or proceeding based on any alleged lack of personal jurisdiction, improper venue or forum or any similar basis, to the extent permitted by law.
    6. Independent Contractors. The relationship of RS and Client established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to the contrary.
    7. No Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions.
    8. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, war, act of terrorism, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
    9. Entire Agreement. This Agreement, including Appendix "A" attached hereto and made a part hereof, constitutes the entire agreement between the Parties and supersedes all previous agreements or representations, oral or written, relating to this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
    10. Severability. If any provision or any portion of any provision of this agreement is declared invalid or unenforceable, such provision or such portion shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event the invalidity or unenforce-ability of any provision or any portion of any provision shall not affect any other provision and the remaining portion of any provision of this Agreement, and this Agreement shall continue in full force and effect and be construed and enforced as if such provision had not been included or had been modified as above provided, as the case may be.
    11. No Third Party Rights. Nothing in this Agreement shall be construed to confer any rights upon or vest any rights in any person or entity which is not a Party hereto or a permitted assignee of a Party to this agreement.
    12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument.