CASHLYNKÒ PROCESSING ONLY MASTER CLIENT AGREEMENT
Exhibit
10.1
(Certain
terms related to pricing indicated by ** in Exhibit 10.1 have been omitted
and
filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934.)
CASHLYNKÒ
This
CashLynk Processing Only Master Client Agreement (“Agreement”) is entered into
this 29th day of March, 2006, by and between RBS ▇▇▇▇
Incorporated,
a
Georgia corporation having its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter “RBS ▇▇▇▇”), and Ready
Credit Corporation, Inc.
a Nevada
corporation having its principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "Client”). RBS ▇▇▇▇ and Client hereinafter
may be referred to as a “Party” and collectively as the “Parties”.
W
I T N E S S E T H:
WHEREAS,
RBS
▇▇▇▇ is a certified Card Processor with the Card Associations and provides
Host
Based Stored Value (HBSV) card issuing programs (each individual application
a
“Program”) through its Prepaid Products Division (the "Services");
and
WHEREAS,
Client
desires to utilize the Services pursuant to the terms and conditions hereof;
and
WHEREAS,
the
Services are affected hereunder through an arrangement between RBS ▇▇▇▇,
Client’s designated Sponsor bank (the “Bank”),
the
Client and its Cardholders. The Client will use the Bank’s BIN and will
distribute by wire transfer or collected funds (in United States Dollars and
from a United States chartered bank) to an account at the Bank (the
“Client
Account”),
any
funds, due to the Cardholders.
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants herein set forth,
qualification fees and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows;
ARTICLE
I
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
1.1.
Representations
and Warranties of RBS ▇▇▇▇.
RBS
▇▇▇▇
represents and warrants to, and covenants with, the Client
that, as
of the date hereof, and throughout the term of this Agreement,
that:
(i) RBS
▇▇▇▇
is duly organized, validly existing and in good standing as a corporation under
the laws of the State of Georgia and is or will be qualified to transact
business in each jurisdiction where it is required to be qualified as a foreign
corporation, except where such qualification is not required or where the
failure to be so qualified or remain in good standing would not have a material
adverse effect upon RBS ▇▇▇▇ or the ability of RBS ▇▇▇▇ to perform its
obligations hereunder;
(ii) RBS
▇▇▇▇
has the full corporate power and authority to enter into, deliver and perform
this Agreement and to enter into and consummate all transactions contemplated
by
this Agreement, and assuming the due authorization, acceptance and delivery
by
the other Party hereto, this Agreement constitutes a legal, valid and binding
obligation of RBS ▇▇▇▇, enforceable against it in accordance with its terms,
except as enforceability may be limited by bankruptcy, conservatorship,
receivership, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law;
(iii) The
transactions contemplated by this Agreement and the performance by RBS ▇▇▇▇
of
its obligations hereunder are in the ordinary course of RBS Lynk’s business, and
the acceptance, delivery and performance of this Agreement and the transactions
contemplated herein have been duly approved by resolutions of the Board of
Directors of RBS ▇▇▇▇ or an appropriate and duly authorized committee thereof,
and such resolutions and this Agreement shall be maintained continuously as
official records of RBS ▇▇▇▇;
(iv) Neither
the acceptance and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of RBS Lynk’s articles of
incorporation or by-laws or any indenture, agreement or instrument to which
RBS
▇▇▇▇ is now a Party or by which it is bound, or constitute a default (whether
with notice, the lapse of time, or both) or result in an acceleration under
any
of the foregoing, or result in the violation of any law to which RBS ▇▇▇▇ is
subject;
(v) There
is
no litigation or other proceedings pending or, to RBS Lynk’s knowledge,
threatened, which seeks to enjoin or prohibit the acceptance, delivery or
enforceability of this Agreement, or which questions the ability of RBS ▇▇▇▇
to
perform its duties and obligations in accordance with the terms hereof, or
which
is likely to have a material adverse effect on the financial condition of RBS
▇▇▇▇; and
(vi)
No
consent, approval, authorization or order of any governmental or regulatory
authority is required for the acceptance, delivery and performance by RBS ▇▇▇▇
of or compliance by RBS ▇▇▇▇ with this Agreement or the consummation of the
transactions contemplated by this Agreement.
Section
1.2.
Representations
and Warranties of the Client.
The
Client
represents and warrants to, and covenants with, RBS ▇▇▇▇, as of the date hereof,
and throughout the term of this Agreement, that:
(i) The
Client
is duly
organized, validly existing and in good standing as a recognized business
organization and is or will be qualified to transact business in each
jurisdiction where it is required to be qualified as a foreign business
organization, except where such qualification is not required or where the
failure to be so qualified or remain in good standing would not have a material
adverse effect upon the Client
or the
ability of the Client
to
perform its obligations hereunder;
(ii) The
Client
has the
full corporate power and authority to enter into, deliver and perform this
Agreement and to enter into and consummate all transactions contemplated by
this
Agreement, and assuming the due authorization, acceptance and delivery by the
other Party hereto, this Agreement constitutes a legal, valid and binding
obligation of the Client,
enforceable against it in accordance with its terms, except as enforceability
may be limited by bankruptcy, conservatorship, receivership, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity, regardless of whether
such
enforcement is considered in a proceeding in equity or at law;
(iii) The
transactions contemplated by this Agreement and the performance by the
Client
of its
obligations hereunder and the acceptance, delivery and performance of this
Agreement and the transactions contemplated herein have been duly approved
by
resolutions of the Board of Directors of the Client
or an
appropriate and duly authorized committee thereof, and such resolutions and
this
Agreement shall be maintained continuously as official records of the
Client;
(iv) Neither
the acceptance and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Client’s
articles of association, charter or by-laws or any indenture, agreement or
instrument to which the Client
is now a
Party or by which it is bound, or constitute a default (whether with notice,
the
lapse of time, or both) or result in an acceleration under any of the foregoing,
or result in the violation of any law to which the Client
is
subject;
(v) There
is
no litigation or other proceedings pending or, to the Client’s
knowledge, threatened, which seeks to enjoin or prohibit the acceptance,
delivery or enforceability of this Agreement, or which questions the ability
of
the Client
to
perform its duties and obligations in accordance with the terms hereof, or
which
is likely to have a material adverse effect on the financial condition of
Client;
(vi) No
consent, approval, authorization or order of any governmental or regulatory
authority is required for the acceptance, delivery and performance by the Client
of, or compliance by the Client with, this Agreement or the consummation of
the
transactions contemplated by this Agreement;
(vii) Client
acknowledges and agrees that all Client added value client card issuing and
processing services provided to the client shall be provided directly by Client
and not through any subordinate Client or intermediary unless Processor gives
its express written consent on terms and conditions prescribed by
Processor;
(viii) Client
will provide trained sales and Client service personnel for assisting Clients
and Cardholders with usual and customary support requests and referral of
exception service related questions to Processor;
(ix) Client
shall be responsible for exception processing as defined by Regulation E.
Exception Processing is defined as those specific issuer responsibilities for
cardholder services defined by Regulation E. The Client may obtain information
from the CashLynk system to perform such requirements. Generally these include
the following:
|
·
|
Reporting
of a lost or stolen card. It is required that the issuer provides
an
address and/or phone number in the cardholder disclosure for this
purpose.
|
|
·
|
A
request for a copy of a transaction record. It is required that the
issuer
provides an address and/or telephone number for a cardholder to request
a
copy of a specific transaction
record.
|
|
·
|
A
transaction dispute. It is required that the issuer provides an address
and/or telephone number for a cardholder to contact the issuer for
the
purpose of disputing a specific
transaction.
|
Additionally,
Regulation E prescribes specific actions and timeframes with which an issuer
must comply.
(x) Client
acknowledges that its employees and agents are prohibited from making
contractual commitments for Processor;
(xi) Client
expressly acknowledges that it does not and will not in the future claim status
(unless factually true) as a subsidiary, division or department of Processor,
any debit authorization network, credit card issuer, debit card issuer, bank,
electronic transaction switching company, terminal manufacturer, Processor
or to
make any other representation of status inconsistent with the terms and
conditions of this Agreement;
(xii) Client
acknowledges that RBS ▇▇▇▇, pursuant to its duties and responsibilities to
Bank(s), reserves the unilateral right to terminate Services to any of the
Client’s clients at any time without notice if such termination is based upon a
good-faith judgment on the part of Processor or Bank risk management personnel
(whether in fact true) that a Client (a) is engaging in fraudulent transaction
activity; (b) is experiencing adverse changes in business circumstances which
are determined to jeopardize settlement of transaction activity or fulfillment
of financial obligations to Processor or Bank; or (c) is in jeopardy of entering
into bankruptcy or receivership (voluntary or involuntary), as such circumstance
may be defined in Client ’s applicable jurisdiction;
(xiii) Client
shall be responsible for all expenses incurred in the day-to-day conduct of
Client’s business including, but not limited to, operating and selling expenses.
ARTICLE
II
PROGRAM
APPLICATIONS
Section
2.1.
General.
With
respect to each Program that Client desires to make available to prospective
and
existing Cardholders,, Client and RBS ▇▇▇▇ shall from time to time establish
a
Program Application. Each Program Application shall set forth the specific
details and objectives of that particular Program and all fees associated
therewith. It is expressly understood that both Client and RBS ▇▇▇▇ shall
execute all Program Applications as a prerequisite to implementation by RBS
▇▇▇▇. All executed Program Applications shall be attached hereto as an Exhibit
"A" in numerical sequence as applicable (i.e. first Program Application shall
be
identified as Exhibit "A-1", the second "A-2" and so on). Client expressly
acknowledges that any unauthorized use of the CashLynkÒServices,
including a use not specifically provided and approved by RBS ▇▇▇▇ for in a
Program Application, is grounds for immediate termination of all Programs and
this Agreement by RBS ▇▇▇▇. Client further acknowledges that modifications
to
this Agreement, to a Program or to a Card design may be necessary according
to
the laws of the state in which each Program is to be implemented or is governed
by or any other laws, rules or regulations relating to the Service.
Initially
and for each subsequent Program that Client wishes to utilize the Service under
this Agreement, Client shall submit a completed Program Application containing
all relevant information required by RBS ▇▇▇▇, Bank and Card Associations and
which shall state the intent, purpose and details of the use of the Services
contemplated under such Program (a "Program Application").
Section
2.2.
Amendment.
RBS
▇▇▇▇
may from time to time and at any time amend the Program Application, and the
Client agrees to be bound thereby; provided,
however,
that RBS
▇▇▇▇ shall give the Client, with respect to the Service written notice of such
change(s) at least thirty (30) days prior to their effective date, and, that,
during such notice period, the Client may terminate this Agreement without
penalty by so notifying RBS ▇▇▇▇ in writing.
Section
2.3.
Relationship
of this Agreement to the Program Application.
Each
Program Application established between RBS ▇▇▇▇ and the Client and executed
by
both Parties shall be incorporated into and made a part of this Agreement.
In
the event that the provisions of any Program Application are inconsistent,
contrary or in addition to the provisions of this Agreement, the provisions
of
the applicable Program Application shall govern, with respect to the subject
matter of such Program Application.
Section
2.4
CashLynk
Program Acceptance.
Under
rules of the Banks and Card Associations, it is the duty and obligation of
RBS
▇▇▇▇ and the Bank to judge the appropriateness or suitability of all proposed
implementations of the Services. The Card Associations, RBS ▇▇▇▇ and Bank
reserve the unconditional right to refuse implementation of any proposed Client
Program Application. RBS ▇▇▇▇ will provide prompt notice to Client if any
proposed Program Application is deemed inappropriate or unsuitable in accordance
with Bank, Card Association and/or RBS ▇▇▇▇ Program guidelines.
Section
2.5
Approval
Time.
RBS
▇▇▇▇
agrees to use its best efforts to provide approvals on Program Applications
which meet its criteria within ten (10) business days of submission of all
required information and to notify Client promptly of such decision.
Notwithstanding the foregoing, certain implementations will require applicable
Card Association and Bank approval.
Section
2.6
Approval.
Upon
RBS
▇▇▇▇, Bank and Card Association approval, RBS ▇▇▇▇ will enable the Services
to
be provided under the particular Program Application and authorize Client to
commence with card ordering, issuing and funding. Initially and for each
subsequent Program that Client wishes to support under this Agreement, Client
shall submit a completed application containing all relevant information
required by RBS ▇▇▇▇, Bank and Card Associations and which shall state the
intent, purpose and details of the use of the Services contemplated under such
Program. Additionally, it is the sole responsibility of the Client to qualify
prospective clients to ensure that they are in a satisfactory financial
position. A periodic review of the Client's financial statements as filed with
the SEC will be conducted to guarantee that they are able to meet their current
and future financial obligations.
ARTICLE
III
AVAILABILITY
AND ENROLLMENT
Section
3.1.
Distribution
of Enrollment Materials.
The
Client shall, if applicable, deliver to each prospective Cardholder who enrolls
in a Program a set of instructional materials (the “Enrollment Materials”) for
the Program in which the prospective Cardholder elects to participate.
Section
3.2.
Responsibility
for Enrollment Materials.
The
Client shall maintain and store securely all Enrollment Materials, including
inventories of Cards prior to their distribution and shall be responsible for
the cost of replacing any Enrollment Materials and Cards that have been tampered
with, destroyed, misused, or compromised in any way. The Client shall notify
RBS
▇▇▇▇ immediately by telephone or facsimile of any lost, misplaced or stolen
Cards and shall be responsible for the unauthorized or fraudulent use thereof
until such time as RBS ▇▇▇▇ receives such notification. The Client understands
and acknowledges that any use or reproduction of applicable debit network,
Card
Association marks must be in strict compliance with applicable standards
therefore and that Client must obtain the written approval of Bank prior to
any
use thereof. Client further agrees to indemnify and save RBS ▇▇▇▇ harmless
against any fines, claims or actions involving Client’s unauthorized or
non-compliant use of such marks.
ARTICLE
IV
THE
CLIENT ACCOUNT
Section
4.1.
Maintenance
of Client Account at Bank.
Client
shall, at all times during the effectiveness of this Agreement maintain a
deposit account (the “Client
Account”)
at a
Sponsor Bank designated by Client.
Section
4.2.
Relocation
of the Client Account.
In
the
event that Client elects to provide Services through another financial
institution, Client shall relocate the Client Account to such new bank;
provided,
however,
that RBS
▇▇▇▇ received written notice by the Client ninety (90) days prior to the
effective date of such change, which notice shall set forth (i) the identity
of
the new Sponsor Bank, (ii) the new account information and wiring instructions
for delivering funds to the new Sponsor Bank, (iii) and the effective date
of
the change, at which time the Client shall commence depositing all funds to
such
new account at the new Sponsor Bank. RBS ▇▇▇▇ reserves the right to charge
a fee
for the relocation of the Client Account.
ARTICLE
V
DEPOSITS
TO THE ACCOUNT
Section
5.1.
Initial
Deposit; Reserve Fund.
Client
shall deposit to the designated Client Account, via irrevocable wire transfer,
an initial deposit set forth on the Program Application as “reserve funds” (the
“Reserve Funds”). The Reserve Funds shall be held in the Client Account to
cover, inter
alia,
potential overdrafts, floor limits, fee obligations resulting from additional
un-forecasted transaction volume on Cards, Card Usage Risks (as more fully
described in Section 7.5 hereof) and for any other undisputed obligation to
RBS
▇▇▇▇ created by a Program, its termination or other events, and RBS ▇▇▇▇ is
hereby granted a right of set-off to apply any Reserve Funds to any unpaid
obligations of Client to RBS ▇▇▇▇.
In
the
event that RBS ▇▇▇▇ applies, or exercises any right of set-off against, the
Reserve Funds, RBS ▇▇▇▇ shall, within five (5) business days notify the Client
of the reason for, and the amount of, such application. Within two (2) business
days of such notification, the Client shall re-deposit to the Client Account,
via wire transfer, an amount of funds necessary to restore the Reserve Fund
to
its required level. RBS ▇▇▇▇ may, from time to time, increase the amount of
the
Reserve Funds required by notifying the Client in writing of such increase
and
the reason therefore; provided,
however,
that RBS
▇▇▇▇ shall give the Client written notice of such increase at least thirty
(30)
days prior to its effective date, and that, during such notice period, the
Client may terminate this Agreement without penalty by so notifying RBS ▇▇▇▇
in
writing.
Section
5.2.
Regular
Deposits.
The
Client shall promptly deposit in the designated Client Account, by timely,
irrevocable wire transfer or collected funds (in United States Dollars and
from
a United States chartered bank), all Program funds due to its Cardholders,
including as applicable and without limitation, wages, salaries, bonuses,
reimbursements, incentives, promotional funds and estimated Client paid fees.
With respect to each transfer of funds by the Client to Client Account, Client
shall deliver to RBS ▇▇▇▇ in the specified format, as set forth in the Program
Application, data identifying the amount of such funds attributable to each
Cardholder (“Disbursement Detail”).
Client
acknowledges that Cardholders shall have access only to those funds held in
the
Client Account on their behalf, and that the Service under a Program will be
made available to them only to the extent that adequate funds are available
in
the Client Account. RBS ▇▇▇▇ shall be liable to Cardholders only to the extent
that Client funds for such Cardholders have been advanced to the Client Account
and Client has provided Disbursement Detail to RBS ▇▇▇▇. RBS ▇▇▇▇ shall have
no
obligation to provide the Service, or to make any funds available, to
Cardholders with respect to whom inadequate funds are held in the Client Account
or for whom Disbursement Detail is not delivered by Client.
Section
5.3.
Maintenance
of Subaccount Entries for Each Cardholder.
The
Client Account shall be controlled by RBS ▇▇▇▇ exclusively on behalf of all
Cardholders, and RBS ▇▇▇▇ shall maintain individual entries in its system
reconciled to amounts in the Client Account for each Cardholder; each a
“Subaccount”. If applicable, it is the responsibility of the Client to provide
confidential Cardholder information, such as Cardholder name and other
individual Subaccount information needed for these records. Each such Subaccount
entry shall accurately reflect the amount of funds in the Client Account that
are attributable to, and held on behalf of, each particular
Cardholder.
Section
5.4.
Employee
Payroll and Other Matters.
The
Client shall be solely responsible for compliance with all federal, state and
local laws, rules and regulations relating to payroll, compensation and
employment matters (if applicable), including, without limitation, (i) proper
withholding and timely remittance of any and all taxes related thereto, and
(ii)
the timely delivery of payment stubs and similar payroll information to
Cardholders setting forth all required information.
Section
5.5.
Withdrawal.
RBS
▇▇▇▇
shall have sole authority to withdraw the Reserve Funds or any other funds
from
the Client Account in accordance with and pursuant to the terms and conditions
of this Agreement and all applicable Program Applications
hereunder.
ARTICLE
VI
CARDHOLDER
SERVICES
Section
6.1.
Cardholder
Services Fee Schedule.
With
respect to each Program, Client shall prepare a Cardholder Services Fee Schedule
which sets forth the Program details (the “Cardholder
Services”)
that
the Client, will make available to the Cardholders under that particular
Program. The Cardholder Services Fee Schedule shall be made a part of each
related Program Application.
Section
6.2.
Fees
for Cardholder Services.
The
fees
for the Cardholder Services, at the discretion of the Client and outlined in
the
Program Application, may be borne by the Cardholders in the course of their
use
of the Cardholder Services, in accordance with the terms and conditions of
the
Cardholder Agreement and Disclosure to be made part of each related Program
Application.
Section
6.3.
Availability
of Cardholder Services.
The
Services are available to the Cardholders only upon the terms and conditions
set
forth in the Cardholder Agreement and Disclosure, and only to the extent that
the applicable Card has available in the requisite sub-account an amount of
funds sufficient therefore and Disbursement Detail has been provided to RBS
▇▇▇▇
by Client.
ARTICLE
VII
CLIENT
RESPONSIBILITIES
Section
7.1.
Comply
with Laws
and Obtain Bank Sponsorship.
The
Client
is
and shall be responsible for complying with all state and federal laws
applicable to the Services. Client is responsible for obtaining and managing
a
relationship with its designated Sponsor Bank (the “Bank”) and is responsible
for any fees associated with securing a BIN through that Sponsor Bank. The
Client agrees to supply RBS ▇▇▇▇ with all relevant information concerning the
Sponsor Bank and BIN to manage the Client’s prepaid programs. Client is
responsible for all fees incurred by RBS ▇▇▇▇ as a result of conducting business
through RBS Lynk’s system as described and agreed to in Schedule A hereto
(Processing Services and Fees).
Section
7.2.
Provide
Cardholders with Enrollment Materials.
The
Client shall deliver or make available to each Cardholder that enrolls in each
respective Program(s) a set of instructional materials (“Enrollment Materials”),
pursuant to Section 3.2 and as more fully described in the respective Program
Application. The Enrollment Materials will include the Cardholder Terms and
Conditions and a Card. These materials must be approved in writing by the
Sponsor Bank prior to Client’s delivery thereof to any Cardholders enrolled in a
Program.
Section
7.3.
Comply
with PIN Procedures.
If
applicable under a Program, the Client shall comply with RBS ▇▇▇▇ procedures
regarding PIN issuance and take all reasonable precautions so that the only
persons with appropriate authority learn or handle such PINs. These procedures
shall be set forth in the Program Application.
Section
7.4.
Assistance
in Notifying Cardholders of Changes
If
applicable under a Program, to the extent that RBS ▇▇▇▇ amends the Cardholder
Service Schedule, the Client shall be responsible for distributing proper and
timely notification of such amendments to the Cardholders through an Amended
Cardholder Terms and Conditions.
Section
7.5.
Risk
Allocation
The
Client acknowledges that the Services provided by RBS ▇▇▇▇ hereunder enable
Cardholders to use Cards utilizing both PIN based and non-PIN based transfer
infrastructures. The use of such infrastructures entail specific risks which
include, among other things, unauthorized Card usage and/or the use of forged
or
stolen Cards (the “Card Usage Risks”). The Client acknowledges that RBS ▇▇▇▇ is
acting only as the Processor hereunder and that the Client is the de
facto
issuer
of the subject Cards. Client therefore shall be responsible for all losses
and/or charges incurred hereunder as a result of Card Usage Risks and shall
reimburse RBS ▇▇▇▇ for any sums paid by RBS ▇▇▇▇ as a consequence thereof.
Similarly, in the event the Client learns that a Card is lost or stolen, or
that
a Card is being used fraudulently or without authorization, Client shall notify
RBS ▇▇▇▇ immediately by telephone or facsimile to mitigate any losses and shall
be responsible for the unauthorized or fraudulent use of such Cards until such
time as RBS ▇▇▇▇ receives notification thereof.
ARTICLE
VIII
PROGRAM
FEES
Section
8.1.
General.
The
fees
charged by RBS ▇▇▇▇ to Client for the CashLynkÒ
Service
under each respective Program are set forth in Schedule A. These fees may
include, without limitation, (i) initiation fees, such as start-up, training,
data conversion, set-up, travel or other similar expenses, and (ii) transaction
fees. The Client shall promptly pay RBS ▇▇▇▇ the fees due under any Program
Application by wire transfer. RBS ▇▇▇▇ may from time to time amend the Client
Fee Schedule, including, all pricing thereunder; provided,
however,
that RBS
▇▇▇▇ shall give the Client written notice of such change(s) thirty (30) days
prior to their effective date, and, that, during such period, the Client may
terminate this Agreement without penalty.
Section
8.2
Minimum
Revenue Guarantee
Client
shall be obligated to guarantee minimum transactional revenue to RBS ▇▇▇▇,
as
specified in the attachments. Client will be required to provide a reserve
deposit in an amount as specified in Schedule A. The minimum monthly revenue
commitment shall include only recurring transactional fees. It will not include
card costs, enrollment fees, implementation fees, training fees, API or web
hosting fees, IVR and customer fees, or any other non-transactional,
non-recurring fees. At the conclusion of each month, RBS ▇▇▇▇ shall determine
the amount of recurring transactional revenue produced collectively by the
Programs sold by Client. RBS ▇▇▇▇ will give the Client seven (7) months from
the
execution date of this agreement to ramp up to the monthly minimum. After seven
months, should Client not meet the minimum monthly revenue commitment, then
RBS
▇▇▇▇ will deduct the difference from the Client reserve provided for that
purpose. Client then shall be obligated to replenish that sum deducted from
the
reserve within 10 business days. Failure to replenish the reserve account will
result in the withholding of Client’s residual compensation payments. Should
failure to replenish the reserve account continue for thirty (30) calendar
days
RBS ▇▇▇▇ reserves the right to terminate this Agreement without further notice
and/or disable the Client’s access to the CashLynk system, or any such actions
deemed necessary by RBS ▇▇▇▇ management to effectuate a remedy. Notwithstanding
the obligations set forth in this Agreement and all Program Applications,
hereunder, nothing herein shall be construed to require Client to provide any
minimum or guaranteed number of Cards or Cardholders.
ARTICLE
IX
TRANSACTION
DATA; PRIVACY
Section
9.1.
Ownership
of Certain Property.
The
Service, PINs and the intellectual property related to the operation and
functionality of such items and processes, as well as their relationship to,
and
interaction with, the Services, are the sole property of RBS ▇▇▇▇. The
Program(s) and Card(s) are the sole property of the Sponsor Bank and Client.
The
Client shall not use, divulge, or grant any third Party access to any of the
foregoing intellectual and other property, except: (i) as permitted under the
Client Privacy Policy Statement (as defined below), (ii) as may be necessary
to
conduct its internal business, (iii) as may be required by law, or (iii) with
the prior express written consent of RBS ▇▇▇▇.
The
Cardholders’ transaction information (“Cardholder Information”, further defined
below), including, without limitation, the information presented in the
statements, is the property of the respective Cardholders. Neither RBS ▇▇▇▇
nor
the Client shall use, divulge, or grant any third Party access to, any such
information, except: (i) as permitted under the RBS ▇▇▇▇ Privacy Policy
Statement (as defined below) or the Client Privacy Policy Statement,
respectively, or (ii) as may be required by law.
The
Parties agree to maintain appropriate administrative, technical and physical
safeguards for all Cardholder Information in its possession. These safeguards
must (i) insure the confidentiality of Cardholder Information; (ii) protect
against any anticipated threats or hazards to the security or integrity of
Cardholder Information; (iii) protect against unauthorized access to and use
of
Cardholder Information that could result in substantial harm or inconvenience
to
any Cardholder; and (iv) properly dispose of all Cardholder Information to
ensure no unauthorized access to Cardholder Information. The Parties agree
to
observe, apply and maintain all such safeguards in accordance with applicable
federal, state and local laws, rules, and regulations. For purposes of this
Agreement, “Cardholder Information” shall mean any non-public, sensitive
information about a Cardholder including any combination of Cardholder name
plus
any of social security number, driver’s license or other identification number
or Card number, or other bank account number, or any other information contained
on the magnetic stripe of any such Card.
RBS
▇▇▇▇
shall not transfer, sell, lease, disclose, or otherwise make Cardholder
Information obtained in connection with this Agreement available, in whole
or in
part, in a manner not provided for in this Agreement, without the prior written
consent of Client. Notwithstanding the foregoing, a Party may disclose
Cardholder Information to its Clients, subcontractors and agents who have a
need
to know such information, provided that such individuals or entities have
assumed confidentiality obligations in accordance with this Agreement, or as
may
be required by legal process or applicable law and have entered into a written
agreement with such
Party to abide by the data security contained in this Article IX, including
compliance with Card Association rules, regulations or bylaws.
Section
9.2.
RBS
▇▇▇▇ Privacy Policy Statement.
RBS
▇▇▇▇
has approved and adopted a privacy policy statement, which is maintained and
documented on the RBS ▇▇▇▇ Web Site (which may be accessed at http:\\▇▇▇.▇▇▇▇▇▇▇.▇▇▇)
(the
“RBS
▇▇▇▇ Privacy Policy Statement”),
and,
in the course of performing its obligations under this Agreement, RBS ▇▇▇▇
shall
at all times comply with the RBS ▇▇▇▇ Privacy Policy Statement.
Section
9.3.
Client
Privacy Policy Statement.
Within
thirty (30) days from the effective date of this Agreement, the Client shall
have approved and adopted a privacy policy statement, in substantially the
form
attached hereto (the “Client
Privacy Policy Statement”),
and,
in the course of performing its obligations under this Agreement, the Client
shall at all times comply with the Client Privacy Policy Statement.
ARTICLE
X
CONFIDENTIALITY;
NON-COMPETITION
Section
10.1.
Confidentiality.
RBS
▇▇▇▇
and the Client shall not, during the performance of this Agreement, or at any
time after the termination or expiration hereof, sell or disclose to any third
Party, other than as may be required in the performance of their duties and
obligations hereunder or as may be required by regulation or law, the terms
of
this Agreement or any of the procedures, practices or confidential dealings
of
and between each other.
Section
10.2.
Non-Competition.
All
information received by RBS ▇▇▇▇ and the Client with respect to the business
of
the other (other than information which is or, not as a result of Client’s
actions, becomes, a matter of public knowledge) shall not at any time be used
for any business or competitive purpose or be disclosed by such person to any
third Parties without the prior express written consent of the other
Party.
Section
10.3.
Survival.
The
covenants and agreements set forth in this Article X shall survive the
consummation of the transactions contemplated by this Agreement.
ARTICLE
XI
TERM
AND TERMINATION
Section
11.1.
Term.
The
term
of this Agreement shall commence as of the Effective Date and shall continue
thereafter until the second (2nd)
anniversary of such date. Thereafter, this Agreement shall automatically renew
for consecutive, successive terms of one (1) year each, unless and until either
Party hereto provides the other Party written notice of non-renewal at least
ninety (90) days prior to the end of the then existing term. Notwithstanding
the
foregoing, each Program Application entered into by the Parties shall have
a
term of one (1) year each (unless a different term is mutually agreed to by
the
Parties and set forth in a Program Application). Thereafter, each Program shall
automatically renew for consecutive, successive terms of one (1) year each,
unless and until either Party hereto provides the other Party written notice
of
non-renewal at least ninety (90) days prior to the end of the then existing
Program term. The effect of non-renewal of this Agreement will be to terminate
the ability of either Party to enter into subsequent Program Applications under
this Processing Only Master Client Agreement. Non-renewal of this master
Agreement will not, by itself, result in termination of any Program Application
previously entered into under this Agreement, and the terms of this Agreement
will be incorporated into such Program Application and will continue in effect
unless and until the Program Application itself is terminated or
expires.
Section
11.2.
Termination.
This
Agreement may be terminated in any of the following manners:
|
(i)
|
Mutual
Termination.
This Agreement may be terminated at any time by the mutual written
agreement of both Parties.
|
|
(ii)
|
Termination
by Non-Renewal.
This Agreement may be terminated by either Party by written notice
of
non-renewal in accordance with the provisions of Section 11.1
hereof.
|
|
(iii)
|
Event
of Default.
If any one or more of the following events (each, an “Event
of Default”)
shall occur and be continuing:
|
|
·
|
unless
otherwise stated in this Agreement, the failure of a Party to remit
any
undisputed payment required by this Agreement, which continues unremedied
for longer than two (2) business days after written formal
notification;
|
| · |
the
failure of a Party to observe or perform, in any material respect
any
other of the covenants, obligations or agreements set forth in this
Agreement, which failure is not cured within thirty (30) days after
the
date on which written notice of such failure, requiring the same
to be
remedied, shall have been given;
|
|
·
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a trustee, conservator, receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of
assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against a Party
hereto
and such decree or order shall have remained in force, undischarged
or
unstayed for a period of 60 days;
|
|
·
|
the
consent by a Party to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of
assets
and liabilities or similar proceedings relating to all or substantially
all of such Party’s property; or
|
|
·
|
a
Party admits in writing its inability to pay its debts as they become
due,
files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations;
or
|
|
·
|
a
Party fails to maintain its applicable certification or sponsorship
into
the Card Associations as required
hereunder.
|
Then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the non-defaulting Party, by notice in writing to the Party in
default, may, in addition to whatever rights the non-defaulting Party may have
at law or equity to damages, including injunctive relief and specific
performance, terminate this Agreement.
Section
11.3
Termination
without Cause
Notwithstanding
Sections 11.1 and 11.2, RBS ▇▇▇▇ agrees that Client may terminate this Agreement
without cause at any time. Client agrees that its decision to terminate without
cause, i.e.,
not a
termination for cause pursuant to Section 11.2, prior to the expiration of
the
term will result in administrative costs and fees to the RBS ▇▇▇▇ and therefore
agrees to pay a termination fee in the following amounts:
|
(a)
|
During
first year
|
$10,000.00
|
|
(b)
|
During
second year
|
$5,000.00
|
Client furthermore agrees such termination fee will be paid immediately upon written notice of termination.
Section
11.4.
Unwinding
Relationship.
Upon
termination of this Agreement, RBS
▇▇▇▇
shall continue to process transactions for cards that have redeemable value
until the earlier of the expiration date of the Card or a period of six (6)
months from the Agreement termination date. At such time as this Agreement
terminates, Client will not be permitted to load value onto Cards or reverse
value from Cards nor will Client be permitted to issue or create additional
cards or card accounts or perform card or Cardholder maintenance functions.
However, Client will be permitted to access the necessary reporting capabilities
of the CashLynkÒ
system
for Program monitoring purposes. Upon the earlier of Card expiration or
expiration of the proscribed six month grace period, RBS ▇▇▇▇ will remove the
value from the cards and remit those funds to Client, subject to a reserve
for
network obligations and/or service fees due RBS ▇▇▇▇ at the time of expiration
until all potential network obligations or applicable regulatory charges have
expired. RBS ▇▇▇▇ will determine the reserve in its reasonable discretion based
upon the history of the Card program.
The
Parties shall cooperate with each other to facilitate the termination of their
relationship under this Agreement. Without limiting the generality of the
foregoing, the Parties shall cooperate to notify the Cardholders, the Bank,
and
any other third Parties concerning which the Parties hereto may mutually agree.
In the event that this Agreement is terminated pursuant to an Event of Default,
then the Party in default shall bear the cost of any conversion or other
expenses related to such termination. If this Agreement is terminated for any
other reason, then the Parties hereto shall bear their own costs relative to
any
conversion or other expenses related to such termination.
ARTICLE
XII
DATA
SECURITY
Section
12.1.
Security
& Safeguards.
Client
and RBS ▇▇▇▇ agree to maintain appropriate administrative, technical and
physical safeguards for all Cardholder Information. These safeguards must (i)
insure the confidentiality of Cardholder Information; (ii) protect against
any
anticipated threats or hazards to the security or integrity of Cardholder
Information; (iii) protect against unauthorized access to or use of cardholder
Information that could result in substantial harm or inconvenience to any
cardholder; and (iv) properly dispose of all Cardholder Information to ensure
no
unauthorized access to Cardholder Information. Client agrees to observe, apply
and maintain all such safeguards applicable to Cardholders, RBS ▇▇▇▇ or Bank
in
accordance with applicable federal, state and local laws, rules, regulations
and
guidance, and any requirements specified by RBS ▇▇▇▇ or Bank.
Section
12.2.
Compliance
with Card Association Rules.
Client
and RBS ▇▇▇▇ specifically represents, warrants and covenants that it is and
shall remain throughout the term of this Agreement in compliance with all Card
Association by-laws, operating regulations and rules related to data security,
data integrity and the safeguarding of Cardholder Information including the
Payment Card Industry Data Security Standard (PCI) in effect and as may be
amended, modified, supplemented or replaced from time to time. Client agrees
to
cause and shall be responsible for causing all of its service providers,
subcontractors and agents to be in compliance with PCI requirements at all
times. Client shall report any non-compliance immediately to RBS ▇▇▇▇ and Bank.
In furtherance of the foregoing, Client agrees to encrypt all Card numbers
whether in storage, transport or backup and agrees not to store data security
codes on its systems, network or software.
Section
12.3.
Annual
Certification.
Client
agrees to provide an annual certification to RBS ▇▇▇▇ (from an independent
assessor - in a form acceptable to RBS ▇▇▇▇) certifying compliance with these
data security provisions, including compliance with applicable Card Association
requirements (including PCI). Client agrees to provide these annual
certifications for all service providers, subcontractors and agents of Client
to
the extent applicable
Section
12.4.
Cardholder
Information.
For
purposes of this Agreement, “Cardholder Information” shall mean any non-public,
sensitive information about a Cardholder including any combination of Cardholder
name plus any of social security number, driver’s license or other
identification number or Card number, or other bank account number, or any
other
information contained on the magnetic stripe of any such Card.
Section
12.5.
Limits
On Use of Information.
Client
shall not transfer, sell, lease, disclose, or otherwise make Cardholder
Information obtained in connection with this Agreement available, in whole
or in
part, in a manner not provided for in this Agreement, without the prior written
consent of RBS ▇▇▇▇ and Bank. Notwithstanding the foregoing, Client may disclose
Cardholder Information to its service providers, subcontractors and agents
who
have a need to know such information, provided that such individuals or entities
have assumed confidentiality obligations in accordance with this Agreement,
or
as may be required by legal process or applicable law and have entered into
a
written agreement with Client to
abide
by these Data Security Contract Provisions including compliance with Card
Association rules, regulations or bylaws.
Section
12.6.
Response
to Unauthorized Access.
The
Parties agree
to
notify the other Party immediately after knowledge of any breach in security
resulting in an unauthorized access to Cardholder Information. The Parties
agree
to provide any assistance that Client, RBS ▇▇▇▇, Bank, and their regulators
and
the Card Associations deem necessary to contain and control the incident to
prevent further unauthorized access to or use of Cardholder Information. Such
assistance shall include, but not be limited to, preserving records and other
evidence and compiling information to enable the Parties to assist Bank,
regulatory authorities and/or the Card Associations to investigate the incident
and provide assistance and cooperation (i) to file Suspicious Activity Reports
(as applicable); (ii) notify their regulators (as applicable); and (iii) notify
the affected Customers (as required). Unless such unauthorized access was due
to
the acts or omissions of RBS ▇▇▇▇ or Bank, along with its data security
programs, systems and software, Client shall
bear the cost of providing notices to the affected Cardholders and any related
investigation costs. Programs may be temporarily suspended (and may be
terminated) in the event RBS ▇▇▇▇ or Bank determine that Client’s system is
insecure or that Client is not in compliance with this Section 14.
Section
12.7.
Audit.
Client
agrees that the records maintained and produced under this Agreement shall
be
available at the facilities of Client which shall be accessible upon prior
notice during normal business hours for examination and audit by RBS ▇▇▇▇,
Bank
and their regulators (having jurisdiction over their businesses) at the sole
expense of RBS ▇▇▇▇. Internal and external auditors of RBS ▇▇▇▇ and Bank may
audit compliance with this Agreement and compliance with laws, rules and
regulations and these data security provisions, including Card Association
compliance. Nothing in this Section shall be construed to require Client to
give
access to its facilities, personnel or records in a manner that unreasonably
interferes with its business operations.
Section
12.8.
Data
Security Indemnity.
Client
shall defend, indemnify and hold RBS ▇▇▇▇ and Bank and their affiliates (and
their respective officers, directors, members, shareholders, partners,
employees, agents, subcontractors and representatives) harmless from and against
any and all losses, fines, penalties, claims, damages, expenses, liabilities
or
fees of any nature whatsoever, including attorneys’ fees and costs (“Damages”),
asserted against or incurred by RBS ▇▇▇▇ and/or Bank or their affiliates arising
out of, relating to or resulting from (i) a breach of the security of the system
safeguarding Cardholder Information resulting in unauthorized access to
Cardholder Information; (ii) a breach of any representation, warranty or term
of
this Agreement regarding data security by Client,
or
any
service provider, subcontractor or agent of Client; (iii) the negligence, gross
negligence or willful misconduct of Client (or any service provider,
subcontractor or agent of Client) in the performance of its data security
obligations under this Agreement; (iv) any violation of laws, rules or
regulations including Card Association rules, regulations and bylaws by
Client or
any service
provider, subcontractor or agent of Client) and (v) all direct and third
party claims arising from the foregoing, provided,
however
that
Client shall not be responsible to RBS ▇▇▇▇ or Bank to the extent that the
Damage is caused by, related to or arises out of the negligence, gross
negligence or willful misconduct of RBS ▇▇▇▇ or Bank or any breach of this
Agreement by RBS ▇▇▇▇ or Bank. Further, Client agrees to promptly reimburse
RBS
▇▇▇▇ and/or Bank for any assessments, fines, fees or penalties imposed by the
Card Associations in connection with this Agreement, including the data security
provisions contained herein.
ARTICLE
XIII
DISPUTES
Section
13.1.
Duty
to Notify.
In
the
event of any dispute, controversy, or claim arising out of or relating to this
Agreement or the construction, interpretation, performance, breach, termination,
enforceability or validity thereof (hereinafter, a “Dispute”),
the
Party raising such Dispute shall notify the other within thirty (30) days from
the date of its discovery of the Dispute. In the case of a Dispute relating
to
invoices, billing statements or similar matters, the failure of a Party to
notify the other Party of such Dispute within thirty (30) days from the date
of
its receipt shall result in such invoice, billing statement or similar matter
being deemed undisputed and accepted by the Party attempting to raise such
Dispute.
Section
13.2.
Cooperation
to Resolve Disputes.
The
Parties shall cooperate and attempt in good faith to resolve any Dispute
promptly by negotiating between persons who have authority to settle the Dispute
and who are at a higher level of management than the persons with direct
responsibility for administration and performance of the provisions or
obligations of this Agreement that are the subject of the Dispute.
Section
13.3.
Arbitration.
Any
Dispute, which cannot otherwise be resolved as provided in Section 12.2 shall
be
resolved by arbitration, conducted in accordance with the commercial arbitration
rules of the American Arbitration Association (“AAA”)
and
judgment upon the award rendered by the arbitration tribunal may be entered
in
any court having jurisdiction thereof. The arbitration tribunal shall consist
of
a single arbitrator mutually agreed by the Parties, or in the absence of such
agreement within 30 days from the first referral of the dispute to the AAA,
designated by the AAA. The place of arbitration shall be Atlanta, Georgia,
unless the Parties shall have agreed to another location within 15 days from
the
first referral of the dispute to the AAA. The arbitration award shall be final
and binding. The Parties waive any right to appeal the arbitration award, to
the
extent a right to appeal may be lawfully waived. Each Party retains the right
to
seek judicial assistance: (i) to compel arbitration; (ii) to obtain interim
measures of protection prior to or pending arbitration; (iii) to seek injunctive
relief in the courts of any jurisdiction as may be necessary and appropriate
to
protect the unauthorized disclosure of its proprietary or confidential
information, and (iv) to enforce any decision of the arbitrator, including
the
final award.
Section
13.4.
Confidentiality.
The
arbitration proceedings contemplated by this Section shall be as confidential
and private as permitted by law. To that end, the Parties shall not disclose
the
existence, content or results of any proceedings conducted in accordance with
this Section, and materials submitted in connection with such proceedings shall
not be admissible in any other proceeding, provided, however, that this
confidentiality provision shall not prevent a petition to vacate or enforce
an
arbitral award, and shall not bar disclosures required by any laws or
regulations.
ARTICLE
XIV
LIMITATION
OF LIABILITY; INDEMNIFICATION
Section
14.1.
Limitation
of Liability.
Neither
RBS ▇▇▇▇, the Client nor any of their respective directors, officers, employees
or agents shall be under any liability for any action taken, or for refraining
from the taking of any action in good faith pursuant to this Agreement;
provided,
however,
that
this provision shall not protect RBS ▇▇▇▇, the Client or any such person against
any breach of their respective representations, warranties or covenants made
herein, or against any specific liability imposed pursuant hereto, or against
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations or duties hereunder. RBS ▇▇▇▇, the Client
and
any of their respective directors, officers, employees or agents may rely in
good faith on any document of any kind which, prima
facie,
is
properly executed and submitted by any appropriate person respecting any matters
arising hereunder.
Section
14.2.
Indemnifications.
Each
Party together with their respective directors, officers, employees or agents
shall be indemnified and held harmless by the other Party against any loss,
liability or expense incurred in connection with any actions, proceedings or
investigations (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
arising out of the indemnifying Party's failure to perform its obligations
under
this Agreement, other than any loss, liability or expense incurred, in part
or
in whole, by reason of the indemnified Party's willful misfeasance, bad faith
or
gross negligence in the performance of its duties hereunder or by reason of
the
indemnified Party's reckless disregard of its obligations or duties hereunder.
Notwithstanding the foregoing, neither Party shall be responsible under this
indemnification for consequential, incidental, special or punitive damages,
even
if the indemnifying Party had prior knowledge of the possibility of the
same.
ARTICLE
XV
MISCELLANEOUS
Section
15.1.
Warranties;
Limitation on Liability.
RBS
▇▇▇▇ MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY
SERVICES, PRODUCTS OR EQUIPMENT PROVIDED HEREUNDER, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. RBS ▇▇▇▇’▇ SOLE RESPONSIBILITY TO THE CLIENT AND THE CARDHOLDERS SHALL
BE TO MAKE THE SERVICE AVAILABLE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT
AND THE CARDHOLDER AGREEMENT. IN NO EVENT SHALL RBS ▇▇▇▇ BE LIABLE TO THE
CLIENT, ANY CARDHOLDER OR ANY OTHER FIRM OR PERSON FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF RBS ▇▇▇▇ HAD PRIOR KNOWLEDGE
OF
THE POSSIBILITY OF SAME.
Section
15.2
Escheat
Client
assumes full responsibility for the escheat of any unclaimed funds and for
required local procedures appropriate to the individual States in which
Cardholders’ reside, card are purchased or cards are shipped to if ordered via
the internet.
Section
15.3.
Force
Majeure.
Neither
Party hereto shall be liable for any failure to perform its obligations under
this Agreement due to: (i) acts of God, such as fires, floods, electrical
storms, unusually severe weather and natural catastrophes; (ii) civil
disturbances, such as strikes and riots; (iii) acts of aggression, such as
explosions, wars, and terrorism; (iv) failure of any third Party Clients to
adequately provide such services, including, without limitation ATM network
services, the Bank’s services, telecommunication services, and merchant POS
services; (v) failures or fluctuations in electrical power, heat, light, air
conditioning, computer or telecommunications services or equipment; and (vi)
acts of government, including, without limitation, the actions of regulatory
bodies which significantly inhibit or prohibit either Party from performing
their obligations under this Agreement (each, a “Force
Majeure”).
In
such event, the performance of such Party’s obligations shall be suspended
during the period of existence of such Force Majeure and the period reasonably
required thereafter to resume the performance of the obligation. The Parties
shall use their best reasonable efforts to minimize the consequences of Force
Majeure.
Section
15.4.
Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW
OR
CHOICE OF LAW PRINCIPLES.
Section
15.5.
Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, to:
|
(a)
|
in
the case of RBS ▇▇▇▇:
|
(b)
|
in
the case of the Client:
|
|
RBS
▇▇▇▇ Incorporated.
|
As
listed in the Program Application
|
||
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Attention:
General Counsel
|
|||
|
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
|
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Section
15.6.
Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, or terms of this Agreement and shall in
no
way affect the validity or enforceability of the other provisions of this
Agreement.
Section
15.7.
Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the Party against whom such waiver
or
modification is sought to be enforced. Any failure
to
insist upon strict compliance with any of the terms or conditions of this
Agreement shall not be deemed a waiver of such term or condition, nor shall
any
waiver or relinquishment of any right or power hereunder at any time or times
be
deemed a subsequent waiver or relinquishment of such right or
power.
Section
15.8.
Exhibits.
The
Exhibits to this Agreement and all Program Applications hereunder, as amended
and in effect from the time of such amendment until subsequent amendment
thereto, if any, are hereby incorporated and made a part hereof and are an
integral part of this Agreement.
Section
15.9.
Entire
Agreement.
This
Agreement, including the Exhibits and all Program Applications hereunder,
constitutes the entire agreement between the Parties with respect to the subject
matter hereof, and supersedes all prior or contemporaneous agreements and
understandings regarding the subject matter hereof, whether written or verbal.
This Agreement may be modified or amended only in writing signed by the Parties
hereto.
Section
15.10.
Effect
of Headings and Recitals.
THE
SECTION AND PARAGRAPH HEADINGS HEREIN, AS WELL AS THE RECITALS AND PREAMBLE
THAT
PRECEDE THE MATERIAL PROVISIONS OF THIS AGREEMENT, ARE FOR CONVENIENCE ONLY
AND
SHALL NOT AFFECT THE CONSTRUCTION HEREOF.
Section
15.11.
No
Third-Party Beneficiaries.
This
Agreement is not intended, and shall not be construed to, confer any rights
upon
any shareholder, creditor, partner or joint venturer of the Client
or RBS
▇▇▇▇ (except to the extent any such persons or entities may be indemnified
hereunder), or any other person or entity, whether as third Party beneficiaries
or otherwise, against any Party hereto or their respective directors, officers,
agents, employees, representatives, affiliates or controlling persons. The
Client
and RBS
▇▇▇▇ acknowledge and agree that they are contracting with each other on an
arm’s-length basis, and this Agreement is not intended to create, and shall not
create, or constitute the Parties hereto as partners or joint
venturers.
Section
15.12.
Non-Exclusivity.
THE
PARTIES ACKNOWLEDGE AND AGREE THAT THE PROCUREMENT OF SERVICES UNDER THIS
AGREEMENT OR ANY PROGRAM APPLICATION WILL BE ON A NON-EXCLUSIVE BASIS. THE
PARTIES MAY AT ANY TIME ESTABLISH SIMILAR RELATIONSHIPS WITH ONE OR MORE OTHER
THIRD PARTIES FOR SIMILAR OR ANY OTHER PURPOSES.
Section
15.13.
Amendment.
This
Agreement may be amended from time to time only by a writing signed by the
RBS
▇▇▇▇ and the Client.
Section
15.14.
General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender;
(b)
references herein to “Articles,” “Sections,” “Subsections,” “Paragraphs” and
other subdivisions without reference to a document are to designated Articles,
Sections, Subsections, paragraphs and other subdivisions of this
Agreement;
(c)
reference to a subsection without further reference to a Section is a reference
to such subsection as contained in the same Section which the reference appears,
and this rule shall also apply to paragraphs and other
subdivisions;
(e)
the
words “herein,” “hereof,” “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provision;
(f)
the
terms “include” or “including” or any derivation thereof shall mean without
limitation by reason of enumeration; and
(g)
the
cover page, table of contents, headings and subheadings hereof have been
provided for convenience of reference only and are not intended to and shall
not, affect the construction or interpretation of this Agreement.
Section
15.15.
Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their successors and permitted assigns. RBS ▇▇▇▇ may transfer or assign
this
Agreement upon thirty (30) days written notice to the Client.
The
Client
shall
not transfer or assign this Agreement without the prior express written consent
of RBS ▇▇▇▇, such consent not to be unreasonably withheld.
|
Client/Ready
Credit Corporation
|
RBS
▇▇▇▇ Incorporated
|
|
|
By:_______________________
|
By:_______________________
|
|
|
Name:_____________________
|
Name:_____________________
|
|
|
Title:______________________
|
Title:______________________
|
|
|
Date:______________________
|
Date:______________________
|
|
Visa/MasterCard/Pinned
|
|||
|
Ready
Credit
|
Date:
3-6-06
|
||
|
This
price quote will expire in sixty days unless initialed and dated
by client
prior to expiration.
|
|||
|
Transaction
fees
|
Processing
Fees
|
||
|
Deposit/Load
|
|
||
|
Card
Account Deposit/Load Fee
|
**
|
||
|
ATM-
Domestic
|
|
||
|
ATM
Withdrawal
|
**
|
||
|
Declined
ATM Withdrawal or balance inquiry
|
**
|
||
|
ATM-
International
|
|
||
|
International
ATM Withdrawal
|
**
|
||
|
Declined
International ATM Withdrawal or balance inquiry
|
**
|
||
|
Pinned
Purchase- Domestic & International
|
|
||
|
Pinned
point of sale purchase, decline or POS return
|
**
|
||
|
Signature
Purchase- Domestic & International
|
|
||
|
Signature
point of sale purchase, decline or POS return
|
**
|
||
|
Other
Fees
|
|
||
|
Card
to card transfer
|
**
|
||
|
Card
account transfer to bank account- Web, IVR or automatic
|
**
|
||
|
Monthly
fee, per card
|
**
|
||
|
Fraud
Monitoring per card per month
|
**
|
||
|
Enrollment
|
|||
|
Cardholder
enrollment through web site
|
**
|
Client
Responsible
|
|
|
Cardholder
enrollment through API
|
**
|
Client
Responsible
|
|
|
Cardholder
enrollment through batch file, per account
|
**
|
Client
Responsible
|
|
|
Cardholder
enrollment through RBS ▇▇▇▇ customer service, per call
|
**
|
Client
Responsible
|
|
|
Cardholder
ID verification (OFAC & Patriot Act compliant)
|
**
|
Client
Responsible
|
|
|
Direct
deposit letter
|
**
|
Client
Responsible
|
|
|
Decline
letter
|
**
|
Client
Responsible
|
|
|
Customer
Service
|
|||
|
Live
operator cardholder support
|
Per
call
|
**
|
Awaiting
Price
|
|
Transfer
of balance to replacement card
|
Per
transfer
|
**
|
|
|
Account
access - IVR
|
Per
minute
|
**
|
|
|
Account
access - web site
|
N/A
|
**
|
API
|
|
On-site
training Fee - Optional (plus T&E) Charged for travel
days
|
Per
day
|
**
|
|
|
Travel
Fee - Optional
|
Per
trip
|
**
|
|
|
Emergency
problem resolution
|
Per
hour
|
**
|
|
|
Card
to bank account transfer reject processing fee
|
Per
reject
|
**
|
|
|
Escheat
|
Per
Card Submission
|
**
|
|
|
Chargebacks
|
N/A
|
**
|
Bank
responsible
|
|
Retrievals
|
N/A
|
**
|
Bank
responsible
|
|
Relationship
Management, RBS ▇▇▇▇
|
|
**
|
|
|
Schedule
A - Processing Services and Fees
|
|||
|
Visa/MasterCard/Pinned
|
|||
|
Ready
Credit
|
Date:
3-6-06
|
||
|
This
price quote will expire in sixty days unless initialed and dated
by client
prior to expiration.
|
|||
|
Implementation
& system fees
|
Notes
|
||
|
Set-up
new BIN
|
**
|
Pay
to Bank
|
|
|
Set-up
sponsor bank and implementation
|
**
|
|
|
|
Customized
IVR message script (one-time, client paid)
|
**
|
|
|
|
800#
Set up Fee to IVR
|
**
|
|
|
|
Subsequent
programs
|
**
|
|
|
|
Customized
web site - set-up fee
|
**
|
|
|
|
Customized
web site - hosting fee
|
**
|
See
note 1
|
|
|
API
integration and implementation fee
|
**
|
One-time
set-up fee
|
|
|
API
monthly fee
|
**
|
See
note 2
|
|
|
Monthly
Minimum Transactional Volume
|
**
|
See
note 3
|
|
|
Monthly
Minimum Transactional Volume
|
**
|
See
note 3
|
|
|
MISC
Fees
|
Notes
|
||
|
Reserve
requirement
|
**
|
See
note 4
|
|
|
Bank
and Network sponsor and usage fees
|
**
|
Paid
by the Client to Bank
|
|
|
|
|
||
|
Client
Signature
|
Date
|
||
|
Notes:
|
|||
|
1.
The Client is required to obtain and pay the cost of the website
URL and
SSL certificate, and provide the graphics and home
page.
|
|||
|
2.
The API monthly fee applies to Client's who are private branding
the
CashLynk product and utilizing the CashLynk API for the servicing
of their
cardholders and clients via their private branded website.
|
|||
|
3.
The Client is required to guarantee minimum earnings to RBS ▇▇▇▇,
beginning in the seventh (7th) month of the agreement, and every
month
thereafter. Tbis increases to ** per month beginning in the seventh
(7th)
month of the agreement. Qualified earning are inclusive of Transaction
Fees only.
|
|||
|
4.
This is required to provide a reserve for the payment of minimum
fees and
to cover losses from client programs resulting from fraud, network
stand-in, below floor limit transactions, force post transactions
and any
other unforeSeen circumstances.
|
|||