EXHIBIT 10.12 SERVICE AGREEMENT

 

                         [Material marked with an asterisk has been omitted

                         from this document pursuant to a request for

                         confidential treatment and has been filed

                         separately with the Securities and Exchange

                         Commission.]

 

                             SERVICE AGREEMENT

 

     THIS SERVICE AGREEMENT (the "Agreement") is entered into effective

this 9th day of September, 2004 (the "Effective Date"), by and between

Trycera Financial, Inc., ("Customer"), a Nevada with a principal business

address of 170 Newport Center Drive, Suite 210, Newport Beach, CA 92660,

and Galileo Processing, Inc. ("Galileo"), a Utah corporation with a

principal business address of 801 North 500 West, Suite 102, West

Bountiful, Utah 84087.

 

                                 Recitals

 

     Customer is engaged in the business of developing, marketing,

servicing and supporting debit cards, stored value cards, and ATM cards

("Transaction Cards").

 

     First Federal Savings Bank of the Midwest, dba Meta Payment Systems

("Bank"), a federal savings bank duly organized and existing under the laws

of the United States, with a principal business address of 2500 South

Minnesota Ave., Sioux Falls, South Dakota 57105, is a principal member in

good standing with MasterCard  International, a New York corporation

("MasterCard"), and is authorized to issue debit cards, stored-value cards

and ATM cards, including, without limitation, the Transaction Cards using

the MasterCard trademarks, as applicable, subject to MasterCard Rules and

Bylaws.

 

     Galileo is a MasterCard certified third party processor and has

established certain facilities in order to perform the Services to support

a MasterCard card program such as the Transaction Cards.

Agreement

 

1.   Definitions.  Unless otherwise defined herein, capitalized terms used

herein shall have the meanings specified in Exhibit A.

 

2.   Services.

 

     2.1  Services.  During the Term, Galileo shall make available to and

perform for Customer and Bank the services related to the Transaction Cards

described in Exhibit B (the "Services").

 

     2.2  Training. Galileo will provide Customer and Bank training on the

Galileo System as described on Exhibit B.

 

     2.3  Client Support. Galileo will designate a representative to

Customer for client support. Customer may request in writing to change the

individual assigned for client support and Galileo will designate a new

representative within sixty (60) days from the receipt by Galileo of such

written request.

 

     2.4  Communications. Galileo shall specify the means for communicating

data from its facilities or equipment to the facilities or equipment of

Customer and Bank, and third parties

 

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designated by Customer and Bank as Galileo determines are necessary to

perform this Agreement.  Customer shall install and maintain in good

operating condition and at Customer's own expense all necessary

communication equipment, including such equipment specified by Galileo.

 

 

     2.5  Enhancements.  Customer may periodically request customizations,

enhancements, additions or modifications (each an "Enhancement") to the

Galileo System. Galileo shall evaluate all such requests and, if terms and

conditions can be agreed to (which shall include payment by Customer of

Galileo's development charges as specified in Exhibit C), Galileo shall

develop and implement each such Enhancement on terms and conditions agreed

to by the parties. Timing of any Enhancement is subject to scheduling and

prioritization by Galileo of its available resources.  Any Enhancement

shall remain solely the property of Galileo and Customer shall acquire no

right, claim or interest in the Galileo System.  In the event Galileo

develops an Enhancement at the request of Customer and the development

costs and expenses are paid solely by Customer and give Customer a

demonstrable competitive advantage in the stored value card issuing

marketplace, Galileo agrees not to publish the availability of such

Enhancement to Galileo's customer base for six months after such

Enhancement is made available to Customer; provided, however, Customer

acknowledges and agrees that such Enhancement will be included in the

Galileo System prior to the time Galileo publishes the availability of such

Enhancement to Galileo's customer base.

 

     2.6  Compliance With Law.

 

          (a)  Galileo and Customer acknowledge that Customer and Bank may

be subject to a variety of federal, state and local laws, regulations and

judicial and administrative decisions and interpretations applicable to the

performance by Customer of its Transaction Card business, including without

limitation those pertaining to equal credit opportunity, truth in lending,

fair credit billing, fair credit reporting, fair debt collections

practices, privacy and general consumer protection (the "Legal

Requirements").  The parties shall cooperate with each other and Bank in

resolving issues relating to compliance with the Legal Requirements in

accordance with the provisions of this Section.

 

          (b)  Customer is solely responsible for (i) monitoring and

interpreting the Legal Requirements, (ii) determining the particular

actions, disclosures, formulas, calculations and procedures required for

compliance with the Legal Requirements (whether to be performed by Galileo

or Customer) and (iii) complying with the Legal Requirements.

 

          (c)  Galileo is solely responsible for compliance with all laws,

regulations and judicial and administrative decisions applicable to Galileo

as a third party provider of data processing services and as a MasterCard

third-party processor.  Galileo will not be responsible for any violation

by Customer of a Legal Requirement.

 

          (d)  Subject to the terms of Article 10, Galileo and Customer

shall cooperate with each other and Bank in providing information or

records in connection with examinations, requests or proceedings of each

other's governing authorities.

 

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     2.7  Dependence on Performance by Others. The obligation of Galileo to

timely perform the Services is expressly subject to the timely performance

by Customer, Bank and third party vendors Customer engages, of their

obligations and responsibilities, but only to the extent that failure to so

perform directly affects Galileo's ability to timely perform hereunder or

the cost to Galileo of performing hereunder.

 

     2.8  Startup.  Customer will (i) use all reasonable resources,

including the assignment of adequate personnel to assure timely performance

of those functions required of Customer to permit Galileo to begin

processing related to the Customer Accounts pursuant to this Agreement, and

(ii) comply with any reasonable directions of Galileo so as to enable

Galileo to begin processing related to the Customer Accounts pursuant to

this Agreement.

 

     2.9  Bank Agreement.  Upon the execution of this Agreement, Customer

shall provide to Galileo a duly executed issuing bank agreement in the form

of Exhibit D (the "Issuing Bank Agreement") signed by a duly authorized

officer of Bank.  If during the Term Bank no longer issues Transaction

Cards for Customer and Customer engages a successor bank ("Successor Bank")

to issue Transaction Cards, Galileo shall have no obligation to provide the

Services hereunder until such Successor Bank has executed and delivered to

Galileo the Issuing Bank Agreement in substantially the form of Exhibit D

and provided such Successor Bank is in good standing with applicable

regulatory authorities and relevant card associations, including, without

limitation, MasterCard.

 

3.   Minimum; Exclusivity; Merger or Change of Control

 

     3.1  Minimum Monthly Fee.  Each calendar month (pro-rated for any

billing period not beginning on the first day of the month or ending on the

last day of the month) Customer will require and shall pay Galileo for

Services sufficient to generate aggregate Processing Fees at least equal to

the amount set forth on Exhibit C under the heading "Minimum Monthly Fee"

(the "Minimum Monthly Fee").  For the avoidance of doubt and based on

economic assumptions material to each party underlying this transaction,

Customer and Galileo expressly agree that Customer shall pay Galileo

Processing Fees during each calendar month in an amount at least equal to

the Minimum Monthly Fee until this Agreement is terminated by Customer

pursuant to the provisions of Sections 9.2(a), 9.2(b), 9.2(c) (unless

termination under Section 9.2(c) relates to any order to or against

Customer), or 9.2(e) or until Galileo terminates this Agreement and invokes

compensatory payments pursuant to Section 9.4. 

 

     3.2  Sole and Exclusive Provider.  During the Term, Galileo shall be

the sole and exclusive provider to Customer of all Services pursuant to

this Agreement and Customer shall not engage any third party to perform or

provide any such Services nor shall Customer perform or provide any

Services related to processing of stored value, Association branded

products.  In addition to the Services to be provided, Customer agrees to

rely upon Galileo during the Term of this Agreement as its exclusive source

for all other existing and future processing requirements of Customer and

its Affiliates with respect to Customer's Transaction Cards business;

provided, however, Galileo may accept or refuse to provide these Services

in Galileo's sole discretion.  Notwithstanding the foregoing, if Customer

requests Galileo in writing by thirty (30) days advance notice to provide a

technology solution or other service not currently being performed by

Galileo (the "Solution") under this Agreement (A) that Galileo either

cannot or will not

 

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                         [Material marked with an asterisk has been omitted

                         from this document pursuant to a request for

                         confidential treatment and has been filed

                         separately with the Securities and Exchange

                         Commission.]

 

provide to Customer or (B) if Galileo is willing to provide such Solution

but on terms less favorable than a bona fide third party service provider

has offered in writing to provide to Customer, then Customer may engage

such third party to perform or provide the Solution.  Customer shall bear

all costs and expenses of developing and implementing the Solution

including, without limitation, the costs of any equipment, hardware or

software needed to make such Solution compatible with the Galileo System.

 

     3.3  Disposition of Portfolios.  Upon the sale or other disposition by

Customer of 90% or more of Customer Accounts that are subject to this

Agreement (the "Former Accounts") Galileo will no longer be obligated to

provide Services for the Former Accounts for Customer and Bank pursuant to

this Agreement.

 

     3.4  Merger or Change of Control.  If Customer is merged into an

Entity and such Entity is the survivor of such merger (the "Surviving

Entity"), then (i) the provisions of this Agreement shall continue to apply

to all Customer Accounts which were subject to this Agreement prior to such

merger and (ii) the Surviving Entity, as Customer's successor-in-interest,

shall continue to be bound by Customer's obligations hereunder.  If there

is a Change of Control of Customer, then the provisions of this Agreement

shall continue to apply to all Customer Accounts of Customer and its

Affiliates that were subject to this Agreement immediately prior to such

Change of Control, but shall not apply to any accounts of the Entity that

Acquires Control of Customer which were not subject to this Agreement prior

to such Change of Control.

 

4.   Payment for Services

 

     4.1  Processing Fees. Customer shall pay Galileo the Processing Fees

set forth in Exhibit C to this Agreement.  Galileo maintains the right to

increase Processing Fees by an amount not to exceed ***** upon the

commencement of each Renewal Term.

 

     4.2  Special Fees. Customer shall pay Galileo the Special Fees,

including but not limited to U.S. postage, for amounts paid to third-party

providers computed in accordance with Exhibit C.  If, at any time while

this Agreement is in effect, the charges are increased to Galileo for items

which are included in the Special Fees or Galileo obtains communication or

other services included in the Special Fees by another method, resulting in

an increase in the charges to Galileo for such items, then Galileo shall

increase by an equal amount the Special Fees Customer is then paying

Galileo for such items under this Agreement.  Such price change by Galileo

shall be effective on the effective date of the increase to Galileo.

 

     4.3  New Products.  If Galileo commences to offer any new services or

products generally to its customers and Customer elects to use any such

service or product, or if Customer elects to use services or products which

Customer had not previously elected to use, then Galileo shall provide such

service or product at Galileo's then current fees and charges for such

service or product or such other prices as Galileo and Customer may

mutually agree.

 

     4.4  Method of Payment. 

 

          (a)  Processing Fees.  Galileo shall bill Customer on the first

day of each calendar month for all Processing Fees related to Services

provided in the previous month

 

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                         [Material marked with an asterisk has been omitted

                         from this document pursuant to a request for

                         confidential treatment and has been filed

                         separately with the Securities and Exchange

                         Commission.]

 

pursuant to this Agreement.  Payments made by Customer to Galileo for

Processing Fees relating to Services provided pursuant to this Agreement

shall be due and payable within ten (10) days from the date of Galileo's

invoice.

 

          (b)  Special Fees.  Prior to incurring Special Fees related to

Services provided by Galileo pursuant to this Agreement at any time during

the Term, Galileo shall notify Customer of the amount of such Special Fees

Galileo will require to provide a particular service and Customer agrees to

deliver to Galileo such amount in immediately available funds to be used by

Galileo to pay the Special Fees.  Galileo shall not be required to provide

any Services the payment of which is covered by Special Fees until Galileo

receives payment for such Special Fees.

 

          (c)  Other Fees and Payments.  Except for the payment of

Processing Fees and Special Fees, all other payments, including

compensatory payments pursuant to Section 9.4 of this Agreement and any

other fee, tax, interest payment, charge or amount due or payable to

Galileo under this Agreement, shall be paid to Galileo within ten (10) days

after the date of Galileo's invoice. 

 

     4.5  Interest.  If Galileo is unable to obtain payment of Processing

Fees, Special Fees, compensatory payments pursuant to Section 9.4 of this

Agreement or any other fee, tax, interest payment, charge or amount due or

payable to Galileo by Customer under this Agreement at the time provided

for payment under this Agreement, the unpaid amount of any Processing Fees,

Special Fees, compensatory payments pursuant to Section 9.4 of this

Agreement or other fee, tax, interest payment, charge or amount shall bear

interest at the rate equal to the lesser of (a) 12% per annum, or (b) the

maximum rate permitted by applicable law, from the date on which payment

was due until the date on which Galileo receives the payment.

 

     4.6  Taxes.  Customer shall be responsible for all taxes and similar

charges imposed on it by any governmental authority assessed as a result of

this Agreement.  Galileo shall be responsible for all taxes and similar

charges imposed on it by any governmental authority assessed as a result of

Galileo's provision of Services pursuant to this Agreement. 

 

     4.7  Deconversion.  Upon the expiration or termination of this

Agreement, Galileo shall provide Deconversion assistance to Customer as

Customer may reasonably request; provided, however, that in no event shall

Galileo be obligated to Deconvert any of Customer Accounts until a date

which is mutually agreed upon and at least thirty (30) days but not greater

than six (6) months after notice by Customer to Galileo requesting such

Deconversion.  Except in the event of Deconversion occurring as a result of

termination of the Agreement by Customer pursuant to Section 9.2, Customer

shall pay Galileo, the rate of *****/hour for resources for each activity

completed by Galileo in order to accomplish the Deconversion and for all

costs, including postage or shipping, of complying with Section 10.1.

 

5.   Dispute Resolution and Indemnification

 

     5.1  Dispute Resolution.  In the event a controversy or claim between

Galileo and Customer arises from or in connection with this Agreement

whether based on contract, tort, common law, equity, statute, regulation,

order or otherwise (a "Dispute"), the parties agree to

 

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reasonably discuss and make good faith efforts to negotiate an amicable

settlement of such Dispute without the necessity of any formal proceedings.

 

     5.2  Arbitration. If Customer and Galileo are unable to resolve any

Dispute in the manner set forth in Section 5.1 above, such Dispute shall be

submitted to arbitration.  The parties agree that, except as otherwise

provided above, any Dispute shall be settled by arbitration in accordance

with the Commercial Arbitration Rules of the American Arbitration

Association ("AAA") in Salt Lake City, Utah, with judgment upon the award

rendered by the arbitrator to be entered in any court of competent

jurisdiction.  Notwithstanding the foregoing or the then-current specified

Commercial Arbitration Rules, the following shall apply with respect to the

arbitration proceeding:  (i) the existence, subject, evidence, proceedings,

and ruling resulting from the arbitration proceedings shall be deemed

confidential information, and shall not be disclosed by the parties, their

representatives, or the arbitrator (except:  (a) to the professional

advisers of Customer or Galileo; (b) in connection with a public offering

of securities by Customer or Galileo; (c) as ordered by any court of

competent jurisdiction; or (d) as required to comply with any applicable

governmental statute or regulation); (ii) the arbitrator shall be required

to prepare written findings of fact; and (iii) the arbitrator may grant any

relief or remedy which the arbitrator deems just and equitable.  The

parties agree that money damages would not be a sufficient remedy for

breach of Article 10 of this Agreement and that in addition to all other

available legal remedies or equitable remedies, the non-breaching party

shall be entitled to equitable relief, including injunctions and specific

performance, for any breach thereof without proof of actual damages.

 

     5.3  Indemnification. 

 

          (a)  Customer's Indemnification.  Customer shall indemnify and

hold harmless Galileo and its directors, officers, employees, agents and

Affiliates from and against any and all third party claims, liabilities,

losses and damages (including reasonable attorney fees, expert witness

fees, expenses and costs of settlement) arising out of or with respect to

this Agreement, to the extent that the claim, liability, loss or damage is

caused by, relates to or arises out of (a) the breach by Customer of any of

its duties, obligations, representations or warranties under this

Agreement, (b) a claim or action against Galileo for any actual or alleged

infringement of any patent, copyright, trade secret or other proprietary

rights of any person in connection with the development of software or

systems to support an Enhancement requested by Customer using designs or

specifications provided by Customer or in connection with the production by

Galileo of items for Customer using artwork, designs or concepts provided

by Customer, or (c) the relationship between Customer and the Cardholders.

 

          (b)  Galileo's Indemnification.  Galileo shall indemnify Customer

and its directors, officers, employees and agents from and against any and

all third party claims, liabilities, losses or damages (including

reasonable attorney fees, expert witness fees, expenses and costs of

settlement) arising out of or with respect to this Agreement to the extent

that the claim, liability, loss or damage is caused by, relates to or

arises out of the breach by Galileo of any of its duties, obligations,

representations or warranties under this Agreement.

 

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6.   Insurance; Limitation of Liability

 

     6.1  Insurance; Limitation of Liability.  During the Term, Galileo

agrees to maintain in effect, to the extent commercially reasonable, errors

and omissions insurance in the aggregate amount of $2 million.

Notwithstanding anything in this Agreement to the contrary, Galileo's

cumulative liability for any loss or damage, direct or indirect, for any

cause whatsoever (including, but not limited to those arising out of or

related to this Agreement) with respect to claims (whether third party

claims, indemnity claims or otherwise) relating to events in any one

Processing Year shall not under any circumstances exceed the amount of 50

percent of the Processing Fees paid to Galileo pursuant to this Agreement

for Services performed in the immediately preceding Processing Year, or, in

the case of Processing Year 1, 50 percent of the total Processing Fees

collected as of the date such claim is made against Galileo; provided,

however, if Galileo fails to maintain in effect errors and omissions

insurance as provided in this Section 6.1 when a claim arises, Galileo's

cumulative liability under this Agreement shall not exceed the amount of

100 percent of the Processing Fees paid to Galileo pursuant to this

Agreement for Services performed in the immediately preceding Processing

Year, or, in the case of Processing Year 1, 100 percent of the total

Processing Fees collected as of the date such claim is made against

Galileo.

 

     6.2  No Special Damages.  IN NO EVENT SHALL GALILEO OR CUSTOMER BE

LIABLE UNDER ANY THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL,

INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.

 

7.   Disclaimer.  EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT,

GALILEO SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR

IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, ARISING OUT OF OR RELATED

TO THIS AGREEMENT. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISIONS

OF THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO IT.

 

8.   Term of Agreement

 

     8.1  Term. This Agreement is effective from the Effective Date and

shall extend for three (3) Processing Years (the "Original Term").

"Processing Year 1" begins on Startup and ends 12 months thereafter.  For

purposes of this Agreement, each subsequent "Processing Year" means each

twelve (12) month period commencing on the expiration of the previous

Processing Year in which Services are performed. 

 

     8.2  Renewal After the Original Term.  This Agreement shall

automatically renew for consecutive periods of one (1) Processing Year

(each a "Renewal Term" and together with the Original Term, the "Term"),

unless either party provides the other party written notice of its intent

not to renew this Agreement at least six (6) months prior to the

termination date of the Original Term or a Renewal Term.

 

9.   Termination

 

     9.1  Termination by Galileo.  Galileo may terminate this Agreement:

 

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          (a)  if Galileo fails to receive payment from Customer pursuant

to the provisions of Section 4.4 of this Agreement and Customer, within

five business (5) days after written notice still has not made such payment

to Galileo, or immediately without notice if Galileo has the right more

than four times in any twelve month period to give such notice under this

paragraph whether or not the notice is given;

 

          (b)  if any Insolvency Event occurs with respect to Customer;

 

          (c)  in the event any representation or warranty of Customer is

inaccurate in any material respect or Customer materially breaches any of

its duties or obligations contained in this Agreement, and fails to cure

within seven (7) days after notice thereof by Galileo, or such shorter

period as may be required by a Legal Requirement or by MasterCard;

 

          (d)  the sale or disposition of Former Accounts as provided in

Section 3.3 of this Agreement;

 

          (e)  upon prior written notice, if a new Legal Requirement or

MasterCard standard, guideline, rule, regulation or requirement or any

change, amendment or new interpretation of an existing Legal Requirement or

MasterCard standard, guideline, rule, regulation or requirement which

occurs after the date hereof results in the issuance to Customer, Galileo,

or Bank of a cease and desist or similar order regarding Customer's

Transaction Card program from MasterCard or an applicable regulatory

agency;

 

          (f)  upon prior notice, if Bank ceases to issue Transaction Cards

and Customer is unable to enter into an agreement with another bank that is

authorized to issue the Transaction Cards using the MasterCard trademarks,

as applicable, subject to MasterCard Rules and Bylaws;

 

          (g)  upon prior written notice, if Galileo loses its sponsorship

to MasterCard as a certified Third Party Processor.

 

     The rights of Galileo to terminate under this Section 9.1 are

cumulative and the existence of the right under any provision or subsection

is not exclusive of the right under any other provision or subsection.

 

9.2  Termination by Customer. Customer may terminate this Agreement:

 

          (a)  if any Insolvency Event occurs with respect to Galileo;

 

          (b)  in the event any representation or warranty of Galileo is

inaccurate in any material respect or Galileo materially breaches any of

its duties or obligations contained in this Agreement, and Galileo fails to

cure within seven (7) days after notice thereof by Customer;

 

          (c)  upon prior notice, if a new Legal Requirement or MasterCard

standard, guideline, rule, regulation or requirement or any change,

amendment or new interpretation of an existing Legal Requirement or

MasterCard standard, guideline, rule, regulation or requirement which

occurs after the date hereof results in the issuance to Customer, Galileo,

or Bank of a cease and desist or similar order regarding Customer's

Transaction Card program from MasterCard or an applicable regulatory

agency;

 

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<PAGE>

                         [Material marked with an asterisk has been omitted

                         from this document pursuant to a request for

                         confidential treatment and has been filed

                         separately with the Securities and Exchange

                         Commission.]

 

          (d)  upon prior notice, if Bank terminates its agreement with

Customer pursuant to which Bank issues Transaction Cards and after the

exercise of Customer's best efforts, Customer is unable to enter into an

agreement with another bank that is authorized to issue the Transaction

Cards using the MasterCard trademarks, as applicable, subject to MasterCard

Rules and Bylaws; or

 

          (e)  upon prior notice, if Galileo loses its sponsorship to

MasterCard as a third party processor.

 

     The rights of Customer to terminate under this Section 9.2 are

cumulative and the existence of the right under any provision or subsection

is not exclusive of the right under any other provision or subsection.

 

     9.3  Effect of Termination.  Upon expiration or termination of this

Agreement, Galileo shall have no further obligation to provide the Services

to Customer and Bank and all outstanding unpaid amounts due and owing to

Galileo shall become immediately due and payable. Expiration or termination

of this Agreement shall not affect the following:

 

          (a)  the obligation of Customer to pay for Services rendered or

any other obligation or liability owing or which becomes owing under this

Agreement whether the obligations arise prior to or after the date of

termination including the obligations to make the payments provided in

Article 4 of this Agreement and Sections 9.4; or

 

          (b)  the provisions of Articles 5, 6, 7, and 10, Section 13.4.

 

     9.4  Payment on Termination.

 

          (a)  If Galileo terminates this Agreement pursuant to Section

9.1, other than pursuant to Section 9.1(e) or Section 9.1(g), Customer and

Galileo agree that, based on economic assumptions material to each party,

Customer shall make a compensatory payment to Galileo.  Such compensatory

payment shall be made by Customer upon termination by Galileo, and prior to

Deconversion, and shall equal **********, or ***** of the gross revenue

payable to Galileo pursuant to the Agreement during the calendar month

immediately preceding the date of termination of this Agreement multiplied

by the number of months remaining under this Agreement.

 

          (b)  Galileo and Customer agree that the compensatory payments

set forth in Section 9.4(a) are a reasonable estimation, as of the date of

this Agreement, of the actual damages which Galileo would suffer if Galileo

were to fail to receive the processing business for the full Term.  In

making such determination, the parties have considered all relevant factors

known to the parties as of the date hereof and have given special

consideration to the particular circumstances which may attend each

particular termination event including the allocation of risks associated

therewith between the parties.  If not but for the full consideration of

all relevant factors known to the parties as of the date hereof, and the

payments to be made pursuant to this Section 9.4, neither party would have

been willing to enter into this Agreement.

 

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          (c)  Despite the foregoing, nothing in this Section 9.4 shall

limit Galileo's right to recover from Customer any amounts for which

Customer is otherwise liable under this Agreement.

 

10.  Confidential Information

 

     10.1 Customer's Proprietary Information.  Upon Customer's request,

Galileo shall return to Customer (upon the expiration or termination of all

of Galileo's obligations under this Agreement and payment by Customer of

all amounts due to Galileo hereunder) all or any requested portion of the

proprietary and confidential data of Customer disclosed to Galileo

(collectively, "Customer's Proprietary Information").  Throughout the Term

of this Agreement and thereafter, Galileo shall not obtain any proprietary

rights in Customer's Proprietary Information.

 

     10.2 Galileo's Proprietary Information.  Customer acknowledges that

all products and systems provided or used by Galileo, including any

developments, Enhancements, improvements or modifications, shall remain

solely and exclusively the property of Galileo.  In addition, Galileo shall

retain sole and exclusive ownership in all works of authorship, ideas,

concepts, know-how and inventions, whether or not patentable, created or

conceived by Galileo in the course of providing the Services under this

Agreement.  Customer acknowledges that Galileo, in its sole discretion, may

provide to other customers, similar ser