EXHIBIT 5.5
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SERVICES AGREEMENT
This Services Agreement (the "Agreement") is entered into effective
August 18th, 2004 (the "Effective Date") between WILDCARD SYSTEMS, INC., a
Florida corporation ("WildCard") and ▇▇▇▇▇▇ BEAUMONT INC., a Nevada Corporation
("Client") (each a "Party" and collectively, the "Parties").
RECITALS
A. Client offers certain Transaction Card Programs to its Cardholders.
B. Client desires that WildCard provide Client with certain data processing and
related services in connection with Client's Transaction Card Programs, and
WildCard desires to perform certain data processing and related services to
Client in connection with Client's Transaction Card Programs, on the terms and
conditions described in this Agreement.
WildCard and Client agree as follows:
1. DEFINITIONS
1.1 DEFINED TERMS. The following capitalized terms shall have
the meanings given to them below when used in this Agreement:
"AAA" is defined in Section 11.3(a) of this Agreement.
"Acceptance Period" is defined in Section 3.4 of this
Agreement
"Affiliate" is defined in Section 14.5 of this Agreement.
"Agreement" shall mean this Service Agreement as amended from
time to time including any Schedules attached hereto and Program Schedules which
are entered into between the Parties from time to time during the term hereof.
"Arbitration Demand" is defined in Section 113(b) of this
Agreement.
"Arbitration Panel" is defined in Section 11.3(b) of this
Agreement.
"Associations" means, collectively, Discover, Visa,
MasterCard, and the ATM/POS Networks.
"ATM/POS Networks" means such ATM or POS networks as may be
specified by WildCard and Client from time to time under this Agreement.
"Client Content" shall mean (a) all text, pictures, sound,
graphics, video and other data supplied by Client to WildCard pursuant to this
Agreement, whether such materials are owned by Client or licensed for use by
Client, as such materials may be modified from time to time for use on the Web
Site; and (b) all user-generated materials appearing on the Web Site.
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"Client Data" shall mean any data or information of Client or any
Cardholder that is provided to or obtained by WildCard in the performance of its
obligations under this Agreement, including data and information with respect to
the businesses, customers, operations, facilities, products, consumer markets,
assets, and finances of Client. Client Data also shall mean any data or
information created, generated, collected or processed by WildCard in the
performance of its obligations under this Agreement, including data processing
input and output, Cardholder information, and third party service and product
agreements.
"Client Marks" shall mean the trademarks, service marks, trade names,
logos and other commercial and product designations of Client identified by
Client for use on the Web Site.
"Client Obligations" means those obligations of Client as specified in
Section 3 of this Agreement.
"Client Owned Materials" is defined in Section 73(a) of this Agreement.
"Basic Qualifications" is defined in Section 11.3(b) of this Agreement.
"Breach Notice" is defined in Section 12.2 of this Agreement.
"Breaching Party" is defined in Section 12.2 of this Agreement.
"Cardholder" means an individual or Entity which has established a
Cardholder Account through Client.
"Cardholder Account" means an arrangement between an individual or an
Entity and Client, which provides that the individual or Entity may use one or
more Transaction Cards issued through Client.
"Charges" are defined in Section 4.1 of this Agreement.
"CISP" is defined in Section 6.9(b) of this Agreement.
"Confidential Information" is defined in Section 6.1 of this Agreement.
"Damages" is defined in Section 13.1(a) of this Agreement.
"Discover" means NOVUS Services, Inc.
"Dispute" is defined in Section 11.1 of this Agreement.
"Disputing Party" is defined in Section 11.3(a) of this Agreement.
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"Domain Name" shall mean the alphanumeric name that is selected by
Client for a particular computer system that is used by the Internet to identify
that system, as designated in the Program Schedules.
"Entity" means a corporation, partnership, sole proprietorship, joint
venture, or other form of organization.
"Excusable Delay" is defined in Section 10.1 of this Agreement.
"Funding Payment" shall mean the payment instruction and amount for the
initial load or Reload of a Transaction Card.
"Governmental Requirements" means collectively all statutes, codes,
ordinances, laws, regulations, rules, orders and decrees of all governmental
authorities (including without limitation federal, state and local governments,
governmental agencies and quasi-governmental agencies) having jurisdiction over
a Party.
"Intellectual Property Rights" shall mean any and all (by whatever name
or term known or designated) tangible and intangible and now known or hereafter
existing (a) rights associated with works of authorship throughout the universe,
including but not limited to copyrights, moral rights, and mask-works, (b)
trademark and trade name rights and similar rights, (c) trade secret rights, (d)
patents, designs, algorithms and other industrial property rights, (e) all other
intellectual and industrial property rights (of every kind and nature throughout
the universe and however designated) (including logos, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license,
or otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues hereof now or hereafter in
force (including any rights in any of the foregoing).
"MasterCard" means MasterCard International Incorporated or its
successors or assigns.
"Materials" shall mean, collectively, works of authorship,
specifications, design documents and analyses, programs, program listings,
programming tools, documentation, reports, drawings and similar work product.
"Non-Breaching Party" is defined in Section 12.2 of this Agreement.
"Operating Rules" means, collectively, the regulations and procedures
issued by Discover, MasterCard, Visa, the ATM/POS Networks, as amended from time
to time.
"Original Term" is defined in the Program Schedule for each Transaction
Card Program.
"Processing Year" is defined in each Program Schedule.
"Program Schedule" is defined in Section 2.1 of this Agreement.
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"Reload" means any addition of value to a Transaction Card, after the
initial load, accomplished by WildCard credit to the associated Transaction Card
account, with a corresponding increase in the Transaction Card balance.
"Renewal Term" is defined in each Program Schedule.
"Scheduled Start-Up Date" is defined in Section 2.3(a) of this
Agreement.
"Settlement Account" shall mean that Client account established by
Client for settlement of Transaction Card transactions with the Associations.
"Service Change" is defined in Section 2.2 of this Agreement.
"Services" means the services to be performed by WildCard on behalf of
Client and its Cardholders, as outlined on the Program Schedules which are
entered into by the Parties from time to time during the term of this Agreement,
as the same may be amended from time to time.
"Start-Up" means the preparation of the WildCard System for the set-up
of Client Data relating to new Transaction Card Programs offered by Client.
"Taxes" is defined in Section 4.3 of this Agreement.
"Transaction Card" means a valid and un-expired host based stored value
card issued through Client, and bearing the symbols of one or more of Discover,
MasterCard, Visa or the ATM/POS Networks.
"Transaction Card Program" means a program, described in a Program
Schedule, initiated by Client pursuant to which Client will provide Transaction
Cards to its Cardholders.
"Visa" means, individually or collectively, as appropriate, Visa U.S.A.
Inc. or Visa International or either of their successors or assigns.
"Web Site" shall mean the electronic, publicly viewable computer screen
depictions of the WildCard System, the WildCard Content, the Client Content and
the Client Marks.
"Web Site Specifications" shall mean the technical, aesthetic and
functional requirements for the Web Site, as set forth in the applicable Program
Schedule.
"WildCard Content" shall mean all text, pictures, sound, graphics,
video and other data, exclusive of the Client Content, provided by WildCard for
use on the Web Site, whether such materials are owned by WildCard or licensed
for use by WildCard, as such materials may be modified from time to time.
"WildCard Owned Materials" is defined in Section 7.3(b) of this
Agreement.
"WildCard Records" is defined in Section 2.9(a) of this Agreement.
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"WildCard System" means the computer equipment, computer software and
related equipment and documentation used at any time and from time to time by
WildCard to provide the services contemplated by this Agreement.
"Wind-Down Period" is defined in Section 12.5 of this Agreement.
"Year-End Financial Report" is defined in Section 2.10 of this
Agreement.
1.2 OTHER TERMS. The terms defined in Section 1.I include the plural as
well as the singular. Unless otherwise expressly stated, the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or other
subdivision. The words "include" and "including" shall not be construed as terms
of limitation. The word "or" shall mean "and/or" unless the context requires
otherwise. The words "day," "month," and "year" mean, respectively, calendar
day, calendar month and calendar year. Other terms used in this Agreement are
defined in the context in which they are used and shall have the meanings there
indicated.
2. PROVISION OF SERVICES
2.1 SCOPE OF SERVICES. In support of Client's Transaction Card
Programs, Client desires for WildCard to provide certain processing and related
services to Client and its Cardholders, and WildCard desires to provide such
services to Client and its Cardholders. This Agreement sets forth the general
terms and conditions applicable to Transaction Card processing services which
may be provided by WildCard to Client from time to time during the term. During
the term and subject to the terms and conditions contained herein, WildCard
agrees to provide Client and its Cardholders the Services, as described in
program schedules which are executed and delivered by the Parties from time to
time during the term of this Agreement (the "Program Schedules"). The general
format of a Program Schedule is set forth in Schedule A to this Agreement. As
Client proposes to offer additional Transaction Card Programs, Client and
WildCard shall use good faith efforts to enter into a Program Schedule which
will describe the Services that WildCard will provide to Client in support of
such Transaction Card Program. Detailed procedures and practices to be followed
while performing the Services shall be as set forth in a Program Schedule. The
Program Schedule shall further specify the term during which the Services shall
be provided by WildCard, the commencement date for the performance of the
Services, the fees payable for such Services, specifications applicable to the
Transaction Card Program, and other applicable terms. WildCard shall not be
responsible for rendering of Services under new Transaction Card Programs until
a Program Schedule for such Transaction Card Program has been executed by the
authorized representatives of the Parties.
2.2 CHANGE IN SCOPE OF SERVICES. Client or WildCard may deem it
necessary or appropriate from time to time to add other services or increase,
reduce, or change the Services under one or more Transaction Card Programs (a
"Service Change"). Either Party may make a proposal for a Service Change,
whereupon the Parties shall mutually evaluate feasibility, manner and timing for
implementation, impact on pricing, impact on performance requirements and all
other relevant matters. A Service Change shall not be implemented unless and
until the Service Change is approved by both Parties. If the Service Change is
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approved by the Parties, the Service Change shall be implemented by WildCard as
expeditiously as possible. An approved Service Change shall be set forth in a
written amendment to the applicable Program Schedule, which amendment shall be
signed by authorized representatives of the Parties.
2.3 START-UP.
(a) WildCard shall provide, subject to any applicable
approvals of the Associations and the Client (as required), for completion of
the Start-Up on the date specified in the applicable Program Schedule, or at
such other date as may a date to be mutually agreed upon by WildCard and Client
(the "Scheduled Start-Up Date"). To the extent that WildCard and Client mutually
agree, the Scheduled Start-Up Date may be modified from time to time prior to
Start-Up.
(b) Client will (i) use all reasonable resources, including
the assignment of adequate personnel to assure timely performance of those
functions required of Client under the Start-Up, and (ii) cooperate with
WildCard so as to enable Start-Up to be completed on or before the Scheduled
Start-Up Date.
(c) WildCard will use all reasonable resources, including the
assignment of adequate personnel to assure timely performance of those functions
required of WildCard under the Start-Up so as to enable Start-Up to be completed
on or by the Scheduled Start-Up Date.
(d) With respect to each Program Schedule, following the
successful completion of the Start-Up, Client agrees to pay the Start-Up Fee as
provided for in the Program Schedule. In addition, each Party shall be
responsible for and pay all costs and expenses incurred by it in connection with
the Start-Up.
2.4 DOMAIN NAME. WildCard shall cooperate with Client in securing the
Domain Name; provided that Client first engages in an appropriate trademark
search in order to establish that the Domain Name proposed by Client shall not
infringe upon the trademark, service ▇▇▇▇, name or logo of any third party.
Client shall reimburse WildCard for all fees and charges actually incurred by
WildCard in providing such service and registering the Domain Name with the
appropriate registration authority. Client shall own all right, title and
interest in and to the Domain Name and all Intellectual Property Rights related
thereto.
2.5 SERVICE STANDARDS.
(a) WildCard represents and warrants that the Services shall
be rendered with promptness and diligence and shall be executed in a workmanlike
manner in accordance with the service standards set forth in Schedule D.
(b) If WildCard fails to provide Services in accordance with
the service standards and this Agreement, WildCard shall (i) promptly
investigate and report on the causes of the problem; (ii) provide a root cause
analysis of such failure as soon as practicable, after such
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failure or Client's request (iii) initiate remedial action to correct the
problem and to begin meeting the service standards as soon as practicable; and
(iv) advise Client, as and to the extent requested by Client, of the status of
remedial efforts being undertaken with respect to such problem and, within five
(5) business days, provide Client reasonable evidence that the causes of such
problem have been or will be corrected on a permanent basis.
(c) WildCard shall implement measurement and monitoring tools
and metrics as well as standard reporting procedures to measure and report
WildCard's performance of the Services against the applicable service standards,
and provide monthly reports with respect to attaining the service standards.
WildCard also shall provide Client with information and access to the
measurement and monitoring tools and procedures utilized by WildCard for
purposes of audit verification.
(d) Service Credits.
(1) If WildCard fails, during any two (2) consecutive
months, to comply with one or more of the Service Level(s), as set forth in
Schedule D, in addition to any remedies Client may have, Client will be entitled
to credit ("Service Credit") for each of the areas that failed during the two
consecutive months, as follows:
WildCard Authorization 5% of the monthly fees due to WildCard for
System the WildCard Authorization System
Internet Services 5% of the monthly fees due to WildCard for
the Internet Services
Talon Software 5% of 1/12 of the initial license fees paid
by Client to WildCard for the Talon Software
VRU Services 5% of the monthly fees due to WildCard for
these Services
Call Center 5% of the monthly fees due to WildCard for
these Services
Reporting Services 5% of the monthly fees due to WildCard for
the reporting services.
(2) For each additional consecutive month in which WildCard
fails to comply with one or more of the Service Levels(s), as set forth in
Schedule D, or in the event WildCard shall fail to meet a Service Level for
three (3) months during any rolling twelve (I2) month period, in addition to any
remedies Client may have, Client will be entitled to a Service Credit for each
of the areas that fail during the failed months as follows:
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WildCard Authorization 10% of the monthly fees due to WildCard for
System the WildCard Authorization System
Internet Services 10% of the monthly fees due to WildCard for
the Internet Services
Talon Software 10% of 1/12 of the initial License fees paid
by Client to WildCard for the Talon Software
VRU Services 10% of the monthly fees due to WildCard for
the VRU Services
Call Center 10% of the monthly fees due to WildCard for
these Services
Reporting Services 10% of the monthly fees due to WildCard for
the reporting services
(e) WildCard is in the process of developing a methodology for
performance of the Services utilizing a Six Sigma approach, Accordingly, six (6)
months immediately following the Effective Date, Client and WildCard shall
review the service levels and the performance data collected and reported by
WildCard and shall; (i) add new service levels to permit further measurement or
monitoring of the accuracy, quality, completeness, timeliness, responsiveness,
cost-effectiveness, or productivity of the Services in accordance with
WildCard's Six Sigma program; (ii) modify the service levels to reflect changes
in the architecture, standards, strategies, needs or objectives; and (iii)
modify the service levels to reflect agreed upon changes in the manner in which
the Services are performed by WildCard. As part of this review process, the
Parties shall, in good faith, jointly determine and agree upon additions to,
deletions from or modifications of the service levels.
2.6 REPORTS. WildCard shall provide to Client the reports described in
a Program Schedule at the frequencies provided therein. In addition, from time
to time, Client may identify additional reports to be generated by WildCard and
delivered to Client on an ad hoc or periodic basis. To the extent WildCard must
dedicate significant labor or resources to the preparation of additional reports
that can only be manually generated or to the implementation of system changes
to permit such reports to be electronically generated, Client shall reimburse
WildCard at WildCard's standard time and material rates for costs incurred by
WildCard in connection therewith.
2.7 FRAUD MANAGEMENT/FRAUD DETECTION SERVICES. For each Program
Schedule entered into by Client, Client shall have the option of electing to
receive the Fraud Management/Fraud Detection Services, which services shall
consist of those services described in each Program Schedule and Attachment A
thereto. The Charges for the Fraud Management/Fraud Detection Services are set
forth in Schedule B.
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3. CLIENT OBLIGATIONS
3.1 COOPERATION. Client will cooperate with WiIdCard in the performance
of Client's activities contemplated by this Agreement by, among other things,
making available, as reasonably requested by WildCard, such volume and other
forecasts, updated information, management decisions and approvals so that
WildCard may fulfill its obligations under this Agreement in a timely and
efficient manner.
3.3 CLIENT CONTENT. Client will deliver to WildCard, in the format(s)
specified by WildCard, all Client Content that Client intends for WildCard to
incorporate into the Web Site. Client shall bear all costs associated with the
telecommunications and computer hardware, software and services necessary to
generate the Client Content and deliver it to WildCard.
3.4 SHADOW SITE; ACCEPTANCE. WildCard shall make available the final
version of the Web Site on a password protected server for Client's review and
acceptance. Client shall have fifteen (15) days to review and evaluate the Web
Site (the "Acceptance Period") to ensure that it meets the Web Site
Specifications. In the event that Client rejects the Web Site during the
Acceptance Period, Client shall promptly notify WildCard in writing of such
rejection, setting forth in detail the basis for such rejection, and WildCard
shall use commercially reasonable efforts to correct any deficiencies or
nonconformities and resubmit the rejected items within thirty (30) days of
receipt of notice of rejection for retesting by Client.
3.5 CONTENT CONTROL. Client will be solely responsible for creating,
managing, reviewing and otherwise controlling the Client Content on the Web
Site. Client acknowledges that, by only providing Client with the ability to
publish and distribute the Client Content, WildCard is acting as a passive
conduit for the distribution and publishing of the Client Content. WildCard has
no obligation to Client, and undertakes no responsibility, to review the Client
Content to determine whether any the Client Content may incur liability to third
parties. Notwithstanding anything to the contrary herein, if WildCard reasonably
believes that any Client Content may create liability for WildCard, Client
agrees that WildCard may, upon prior notice to Client, take any actions
reasonably necessary with respect to the Web Site that WildCard believes are
prudent or necessary to minimize or eliminate WildCard's potential liability.
3.6 CLIENT LICENSE. Client hereby grants to WildCard a non-exclusive,
royalty free, worldwide license to use the CIent Content solely in connection
with performing the Services described herein and otherwise carrying out its
obligations hereunder, including without limitation, the right to distribute,
reproduce, create derivative works of, publicly perform, publicly display and
digitally perform the Client Content in and on the Web Site.
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3.7 CLIENT MARKS. Subject to the terms and conditions of this
Agreement, Client hereby grants to WildCard a limited, non-exclusive,
non-sublicenseable, royalty-free, worldwide license to use the Client Marks on
the Web Site and in other materials which are prepared by WildCard in support of
Client's Transaction Card Programs. Client may terminate WildCard's right to use
the Client Marks, in whole or in part, if the usage of such Client Marks does
not comply with Client's then-current standards for use of such Client Marks;
provided, Client has provided WildCard with written notice of such
non-compliance and WildCard has failed to correct such non-compliance within
thirty (30) days following receipt of such notice. Except as set forth above,
neither Party may use the other Party's trademarks, service marks, trade names,
logos, or other commercial or product designations for any purpose whatsoever
without the prior written consent of the Party owning such marks.
3.8 ESTABLISHMENT OF ACCOUNT FOR SETTLEMENT. WildCard will establish
and maintain the Proceeds Account at the Issuing Bank as a custodial account for
the benefit of the Cardholders of all Transaction Card Programs. WildCard will
also establish and maintain the Settlement Account at the Issuing Bank for
settlement of Transaction Card transactions with the Associations. Client agrees
to establish and maintain, in a commercial demand deposit account at a financial
institution designated by Client, sufficient funds to cover the aggregate amount
of all Funding Payments for Transaction Cards issued through Client. On each
banking business day, WiIdCard will initiate an ACH transaction debiting from
the commercial demand deposit account specified by Client an amount equal to the
aggregate Funding Payments on all Transaction Cards occurring since the previous
banking business day for credit to the Proceeds Account. Each banking business
day, WildCard will transfer funds from the Proceeds Account to maintain the Set
tlement Account at a level sufficient to assure that settlement with the
Associations may take place. At all times, Client must make sufficient funds
available to the Proceeds Account to assure that the aggregate funding in the
Proceeds Account plus the funds held by WildCard for settlement equal or exceed
the outstanding balances on all Transaction Cards in all programs under this
agreement. Client agrees to execute and deliver any documents reasonably
requested by WildCard for the purpose of obtaining the privilege of making
debits and credits and information inquiry to, from, and concerning Client's
specified commercial demand deposit account.
3.9 APPOINTMENT OF AGENT. Client hereby appoints WildCard as its agent
and authorizes WildCard to make any payment to CIient or to collect any amount
due and owing by Client from time to time pursuant to this Agreement by
initiating and transmitting automatic credit and debit entries to the commercial
demand deposit account specified by Client and the Proceeds Account. This
authority shall remain in full force and effect until WildCard has received
written notification from Client of its termination of this Agreement in such
time and in such a manner to afford WildCard a reasonable opportunity to act
upon such notice. In the event of termination of this Agreement, such revocation
of authority shall not be effective until Client has paid all amounts due under
this Agreement.
3.10 FAILURE TO MAINTAIN SUFFICIENT FUNDS. Provided WiIdCard has given
Client prior notice of a deficiency by noon Eastern time, if WildCard has not
received any Funding Payment from Client by 3:00 p.m. Eastern time, on the date
such Funding Payment was due, WildCard will have the right to refuse to activate
new Transaction Cards or to provide Reloads on existing Transaction Cards in an
amount equal to the shortfall, without incurring any liability to Client, until
such time as the Proceeds Account is properly funded. In addition to the
foregoing, WildCard may take such actions as deemed reasonable to protect
WildCard from any loss arising from Client's inability to maintain sufficient
funds to properly fund the Proceeds Account.
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3.11 RESPONSIBILITY FOR GOOD FUNDS. Client shall be responsible for the
collection of "good funds" from Cardholders in connection with all Funding
Payments for Transaction Cards. By way of example, and not in limitation of the
foregoing, Client shall be responsible for (1) any chargeback initiated through
any card association where the Funding Payment involved the use of a credit
card; (2) any return entries or adjustment entries initiated through any funds
transfer systems where the Funding Payment involved an electronic funds
transfer; and (3) any dishonored items where the Funding Payment involved the
use of a check or draft.
3.12 COLLECTION DISCLOSURE. In the event of transactions exceeding the
limit applicable to a Cardholder's Transaction Card, caused by some act other
than a failure of WildCard's System, Client shall be liable for any transaction
responsible for such overdraft or negative balance. As a service offering,
WildCard may be employed to use reasonable commercial efforts to recover the
funds, utilizing chargeback procedures as authorized by the Associations, if
appropriate and necessary. WildCard will provide the Associations with
instructions that there will be no stand-in authorization for the Transaction
Cards. Client acknowledges that under the provisions of the Operating Rules,
certain types of transactions, including but not limited to certain sales in
foreign countries, will be permitted without specific authorization from the
Associations or by WildCard. Client acknowledges liability for such transactions
by Cardholders, subject to the remaining provisions of this Agreement.
3.13 OTHER CLIENT RESPONSIBILITIES. Client shall perform the additional
obligations identified in Program Schedules which are entered into by the
Parties pursuant to this Agreement.
4. PAYMENT FOR SERVICES
4.1. FEES AND EXPENSES. Client shall pay WildCard the fees and expenses
described in a Program Schedule (the "Charges") for the Services. Unless
otherwise provided in a Program Schedule, the Charges applicable to the
performance of Services under a Program Schedule shall be as set forth in
Schedule B.
4.2 PAYMENT. To facilitate the payment of Charges and any other fee,
Taxes, interest payment or amount due or payable to WildCard under this
Agreement, Client will provide WildCard with access to a Client account of
Client's funds not requiring signature and will notify WildCard of the demand
deposit account number and transit routing number for the account. WildCard may,
on a monthly basis, draw upon the Client account to pay Charges, fees, Taxes,
interest payments or any other amount due or payable to WildCard under the terms
of this Agreement for Services performed during the preceding month. The
detailed records of the amounts drawn on the account of Client will be provided
by WildCard to Client on a monthly basis prior to each such monthly draft:.
WildCard shall be under no obligation to effect the Start-Up until the account
has been established as provided herein. If any Charges are not paid when due, a
late charge of 1%% per month or the highest late charge allowed by governing
law, whichever is less, shall apply to such unpaid amounts from the due date
until paid in full.
4.3 TAXES. The Charges do not include any taxes, duties or other
governmental charges (collectively "Taxes"), such as but not limited to sales,
use, excise, and value added taxes. Client shall pay all Taxes levied or imposed
by any governmental authority in connection with the Services, but excluding
taxes which are imposed on WildCard's net income.
4.4 GOOD FAITH DISPUTE. If Client in good faith disputes all or any
portion of the Charges, Client shall notify WildCard as soon as possible (and in
any event no later than the due date of the payment) of the specific amount
disputed and shall provide reasonable detail as to the basis for the dispute.
The Parties shall then attempt to resolve the disputed portion of such Charges
as soon as possible in accordance with the dispute resolution procedures in
Section 11.
5. COVENANTS OF PARTIES
5.1 COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS AND OPERATING RULES.
(a) WildCard shall comply in all material respects with all
Governmental Requirements and the Operating Rules which are applicable to
WildCard's provision of the Services and WildCard's other responsibilities under
this Agreement, including without limitation securing any licenses, permits,
registrations or other authorizations from such governmental authorities as
WildCard may need in order to provide the Services and carry out WildCard's
other responsibilities under this Agreement. Client shall comply in all material
respects with all Governmental Requirements and the Operating Rules which are
applicable to Client's business and Client's other responsibilities under this
Agreement, including without limitation securing any licenses, permits,
registrations or other authorizations from such governmental authorities as
Client may need in order to issue Transaction Cards to Cardholders and to carry
out Client's other responsibilities under this Agreement.
(b) Client acknowledges and agrees that it is solely
responsible for monitoring legal developments applicable to the operation of its
business and Transaction Card operations, and interpreting applicable
Governmental Requirements, determining the requirements for compliance with all
applicable Governmental Requirements, and maintaining an ongoing compliance
program. Client acknowledges that WildCard provides transaction card processing
services to financial institutions and other Entities chartered and regulated by
various state and federal agencies and non-financial institutions subject to
different regulatory oversight such that WildCard cannot reasonably be expected
to monitor or interpret the Governmental Requirements applicable to its diverse
customer base, or provide compliance services to customers with respect to such
Governmental Requirements. Consequently, Client agrees that WildCard has no
responsibility to monitor or interpret Governmental Requirements applicable to
Client's business, or to monitor or review the terms and conditions of Client's
Transaction Card programs or Client's selection of system options and
programming, or to assure that Client's selection of any system option or
programming (either alone or acting in conjunction with other system options and
programming selected by Client) is consistent with Governmental Requirements
applicable to Client, or the terms and conditions of Client's Transaction Card
agreements with, or disclosure to, its Cardholders.
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(c) WildCard shall be entitled to rely upon and use, without
verification, any and all information, data and instructions any time submitted
to WildCard by Client having to do with the Cardholder Accounts of Client, and
WildCard shall have no responsibility or liability whatsoever for (i) the
accuracy or inaccuracy thereof, (ii) the wording or text authored or submitted
by Client to WildCard, for materials to be prepared or for other purposes, (iii)
the wording or text appearing on any forms, Transaction Cards or other materials
furnished by Client to WildCard, or (iv) any non-compliance of such information,
data, instruction, wording or text with applicable Governmental Requirements.
5.2 NON-SOLICITATION. During the term of this Agreement and for twelve
(12) months thereafter WildCard and Client shall not directly or indirectly
solicit for employment any person employed then or within the preceding twelve
(12) months by the other Party, without the other Party's consent in writing.
The foregoing prohibition does not include general public solicitations for
employment.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. Each of WildCard and Client acknowledges
that the other possesses and will continue to possess information that has been
developed or received by it, has commercial value in its business and is not in
the public domain. For purposes of this Agreement, "Confidential Information"
shall (a) all information' of a Party marked "confidential," "restricted,"
"proprietary" or with a similar designation; (b) in the case of Client, in
addition to the items specified in (a) above, Client Data and business
information regarding business planning and operations of Client; and (c) in the
case of WildCard, in addition to the items specified in (a) above, trade
secrets, confidential knowledge, know-how, technical information, data or other
proprietary information relating to the WildCard System (including, without
limitation, all source code, object code, software programs, computer processing
systems and techniques employed or used by WildCard or its Affiliates and any
related items such as specifications, layouts, flow charts, manuals, instruction
books and programmer, technical and user documentation, and any and all
upgrades, enhancements, improvements or modifications to the foregoing);
business information regarding business planning and operations of WildCard and
its Affiliates; and all information regarding WildCard's provision of Services
hereunder.
6.2 OBLIGATIONS. Each Party will use at least the same degree of care,
but not less than reasonable care, to prevent disclosing to other persons the
Confidential Information of the other Party as it employs to avoid unauthorized
disclosure, publication or dissemination of its own information of a similar
nature; provided, however, that each Party may disclose such information to its
employees, agents, subcontractors and vendors who have a need to know such
information and who have been advised by the disclosing Party of the obligation
to preserve such information's confidentiality. The receiving Party shall be
responsible for any breach by any such employee, agent, subcontractor or vendor
of any such confidentiality obligations. Upon expiration or termination of this
Agreement for any reason, each Party shall return promptly to the other Party
all Confidential Information in such Party's possession and certify in writing
to the other Party its compliance with this sentence.
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6.3 EXCLUSIONS. Notwithstanding the foregoing, this Section 6 will not
apply to any particular information of a Party that the other Party can
demonstrate (a) was, at the time of disclosure to it, in the public domain; (b)
after disclosure to it, is published or otherwise becomes part of the public
domain through no fault of the receiving Party; (c) was in the possession of the
receiving Party at the time of disclosure to it without being subject to another
confidentiality agreement; (d) was received after disclosure to it from a third
party who had a lawful right to disclose such information to it; or (e) was
independently developed by the receiving Party without reference to Confidential
Information of the furnishing Party. In addition, a Party shall not be
considered to have breached its obligations under this Section 6 for disclosing
Confidential Information of the other Party (i) as required pursuant to an
arbitration proceeding conducted in accordance with Section 11, provided that
such disclosure is made in accordance with the approval or at the direction of
the Arbitration Panel, or (ii) if in the opinion of such Party's counsel, such
disclosure is required by legal process or pursuant to any applicable statute,
rule or regulation, provided that, except with respect to securities laws
disclosure obligations, such Party advises the other Party prior to making such
disclosure in order that the other Party may object to such disclosure, take
action to assure confidential handling of the Confidential Information, or take
such other appropriate action to protect the Confidential Information.
6.4 LOSS OF CONFIDENTIAL INFORMATION. In the event of any disclosure or
loss of, or inability to account for, any Confidential Information of the
furnishing Party, the receiving Party will promptly notify the furnishing Party.
6.5 NO IMPLIED RIGHTS. Nothing contained in this Section 6 shall be
construed as obligating a Party to disclose any particular Confidential
Information to the other Party, or as granting to or conferring on a Party,
expressly or impliedly, any rights or license to the Confidential Information of
the other Party, except as otherwise provided herein.
6.6 PUBLICITY. Neither Party will, without the other Party's prior
written consent, use the name, service marks or trademarks of the other Party or
any of its Affiliates; provided, however, that (a) WildCard may use Client as a
reference and may indicate to others that Client is a user of the WildCard
System to provide the Services under this Agreement; and (b) Client may indicate
to others that WildCard is the provider of services covered by this Agreement.
6.7 EQUITABLE REMEDIES. Each Party acknowledges that, if it breaches
(or attempts or threatens to breach) its obligations under this Section 6, the
other Party will be irreparably harmed. Accordingly, if a court of competent
jurisdiction should find that a Party has breached (or attempted or threatened
to breach) any such obligations, such Party will not oppose the entry of an
appropriate order compelling performance by such Party and restraining it from
ANY further breaches (or attempted or threatened breaches).
6.8 CONFIDENTIALITY OF AGREEMENT. Both Parties agree that the terms and
conditions of this Agreement shall be treated as confidential information and
that no reference to the terms and conditions of this Agreement or to activities
pertaining thereto can be made in any form without the prior written consent of
the other party; provided, however, that the general existence of this Agreement
shall not be treated as confidential information and that either party may
disclose the terms and conditions of this Agreement: (a) as required by any
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court or other governmental body; (b) as otherwise required by law including
WildCard's obligations under applicable securities laws; (c) to legal counsel of
the parties; (d) in confidence, to accountants, Clients, proposed investors, and
financing sources and their advisors; (e) in confidence, in connection with the
enforcement of this Agreement or rights under this Agreement; or (f) in
confidence, in connection with a merger or acquisition or proposed merger or
acquisition, or the like.
6.9 SECURITY OF CARDHOLDER DATA.
(a) Client and WildCard each acknowledge and agree that this
Agreement constitutes an agreement for WildCard to perform services for Client
and the Issuing Bank as contemplated in Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Financial Modernization Act (the "Act") and Regulation P issued under the Act
("Regulation P"). Without limiting the generality of the terms of this
Agreement, WildCard agrees that it shall protect the privacy of Client's
consumers and customers non-public personal information, as such terms are
defined in the Act and in Regulation P ("Consumer Information") to at least the
same extent that the Issuing Bank must maintain that confidentiality under the
Act and Regulation P. Without limiting the generality of the foregoing sentence,
WildCard shall not disclose any non-public personal information to ANY third
person except as required in the performance of Services under this Agreement,
and WildCard shall not use any non-public personal information except to perform
the Services described under this Agreement. WildCard shall establish
administrative, technical and physical safeguards for Client's customer records
and information in WildCard's control or possession from time to time. Such
safeguards shall be designed for the purpose of. (a) insuring the security of
such records and information, (b) protecting against ANY anticipated threats or
hazards to the security or integrity of such records and information; and (c)
protecting against unauthorized access to or use of such records and information
that would result in substantial harm or inconvenience to any Cardholder. Such
safeguards shall be established in accordance with Section 541 of the Act and
the Interagency Guidelines Establishing Standards for Safeguarding Customer
Information adopted pursuant to Section 501 of the Act. Any changes to the
Services required to comply with any change to or revised interpretation of the
Act or Regulation P, or to implement any requirement of any other federal or
state law, rule, rule, regulation or judicial interpretation with respect to the
privacy or security of Cardholder Data shall be handled as a Service Change as
outlined in Section 2.2 of this Agreement, shall be subject to the provisions of
Section 12,4, and may result in a change in the Charges which are payable by
Client for the Services. Client shall provide WildCard with a copy of its
privacy policy established in accordance with the Act and Regulation P.
(b) WildCard has designed and implemented an Information
Security Program that is designed to protect cardholder data in accordance with
the Visa Cardholder Information Security Program ("CISP") requirements. At all
times during the term of the Agreement, WildCard shall be in compliance with the
CISP requirements, as the same may be revised from time to time. Any changes to
the CISP requirements imposed by Visa shall be handled in accordance with
Sections 2.2 and 12.4.
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7. INTELLECTUAL PROPERTY RIGHTS
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. WildCard shall be the
sole and exclusive owner of all right, title and interest (including, without
limitation, all Intellectual Property Rights) in and to the WildCard System.
Client acknowledges that the WildCard System constitutes valuable trade secrets
of WildCard and constitutes Confidential Information subject to Section 6.
Nothing in this Agreement shall be deemed to grant to one Party, by implication,
estoppel or otherwise, license rights, ownership rights or any other
Intellectual Property Rights in any materials owned by the other Party or any
Affiliate of the other Party.
7.2 CLIENT DATA. Client shall own all right, title and interest in and
to the Client Data. Following expiration or termination of this Agreement,
WildCard shall promptly provide to Client a copy of all Client Data. WildCard
acknowledges that the Client Data constitutes Confidential Information subject
to Section 6. WildCard may, upon prior written notice to Client, retain a copy
of the Client Data if required to satisfy the Governmental Requirements.
8. INSURANCE
Each Party shall obtain and maintain, at its own cost, the insurance
coverages which are described on Schedule C as being its respective
responsibility, These insurance coverages do not create or imply any limitation
of liability. The Party which is responsible for obtaining and maintaining
certain insurance coverages shall provide the other Party with certificates of
such insurance coverages promptly following the date that this Agreement has
been executed by both Parties. Each insurance certificate shall provide that the
insurance policy shall not be subject to termination without at least thirty
(30) days prior written notice to the certificate holder. A Party responsible
for obtaining and maintaining property insurance coverage shall use all
reasonable efforts to ensure that the policy contains a provision or endorsement
which waives the insurance company's right of subrogation against the other
Party and its employees, agents, directors and officers in the event of any loss
or damage from events within the coverage of the insurance policy.
9. LIMITATION OF LIABILITY
9.1 DIRECT DAMAGES. If a Party shall during the term of this Agreement
be liable to the other Party, any Affiliate, any Cardholder, or any other
individual or Entity as a result of any disputes, controversies or claims of any
kind or nature arising under or in connection with this Agreement or the
transactions contemplated hereby (whether any such breaches, disputes,
controversies or claims are based upon contract, tort (including negligence) or
any other legal theory), all damages from all such breaches, disputes,
controversies or claims are limited to actual, direct and out-of-pocket damages
which are reasonably incurred by the injured Party.
9.2 CONSEQUENTIAL DAMAGES EXCLUSION. It is agreed that in no event,
shall a Party be liable to the other Party for consequential, indirect, special,
punitive or incidental damages, or for any lost profits, lost revenues, or
damage to good will.
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(a) With respect to all claims, actions and causes of action
arising out of, under or in connection with a Program Schedule (including
claims, actions and causes of action arising out of, under or in connection with
this Agreement that arise out of such Program Schedule), regardless of the form
of action, whether in contract or tort (including negligence, strict liability
or otherwise) and whether or not such damages are foreseen, during each
Processing Year, a Party's liability to the other Party and its Affiliates will
not exceed, in the aggregate, an amount equal to the greater of (1) $250,000 or
(2) fifty percent (50%) of the Charges paid by Client to WildCard (exclusive of
reimbursable expenses) under the affected Program Schedule(s) in the immediately
preceding Processing Year. .
(b) Notwithstanding the foregoing provisions of Section 9.1,
9.2 or 9.3(a), the liability limitations set forth therein shall not apply with
respect to (i) the indemnification obligations of a Party under this Agreement,
(ii) damages caused solely and directly by a Party's gross negligence,
intentional misconduct or fraud, (iii) damages arising under a breach of Section
6; (iv) damages arising with respect to obligations in connection with the
Intellectual Property Rights of the other Party; and (v) either Party's
liability, if any, for contribution or indemnity with respect to claims for
bodily injury to, or the death of, any person. Notwithstanding the foregoing
provisions of Section 9.3(a), the liability limitations set forth therein shall
not apply with respect to (A) fees and charges which are accrued under this
Agreement; (B) a Party's obligations for the payment of minimum fees or
liquidated damages under this Agreement, (C) either Party's liability, if any,
for contribution or indemnity with respect to claims for damage to, or the
destruction of, any real property or tangible personal property; or (D) either
Party's indemnity obligations under this Agreement.
(c) Subject to the exceptions set forth in Section 9.3(b), the
limitations set forth in this Sections 9.1, 9.2 and 9.3(a) shall apply whether
or not the alleged breach or default is a breach of a fundamental condition or
term, or a fundamental breach, or if any limited warranty or limited remedy
fails of its essential purpose.
9.4 WARRANTY EXCLUSION. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS
AGREEMENT, WILDCARD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
TO CLIENT, ANY CARDHOLDER, OR TO ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR
OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES
OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF ANY
SOFTWARE, SERVICES, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.
If this Agreement includes or refers to any economic models, pro formas, or
projections of any kind, it is understood that WildCard makes no express or
implied warranty with respect to such economic models, pro formas, or
projections, including without limitation any warranty of feasibility,
profitability or results.
10. EXCUSABLE DELAY
10.1 EXCUSABLE DELAY DEFINED. The term "Excusable Delay" shall mean a
delay in performance or failure to perform which is due to an event beyond the
reasonable control of a Party and shall include, without limitation,
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(a) acts of God, weather conditions, explosion, flood, earthquake, or fire; (b)
war or threat of war, sabotaging, riot, revolution, civil disturbance or
requisition; (c) acts, restrictions, regulations, prohibitions or measures of
any kind on the part of any governmental authority; (d) import and export
regulations or embargoes; or (e) strikes, lockouts, or other industrial actions
or trade disputes.
10.2 DELAY OR NON-PERFORMANCE DUE TO EXCUSABLE DELAY. Neither Party
shall be liable to the other Party or be deemed to be in breach of this
Agreement (other than Client's obligation to pay Charges owed WildCard pursuant
to this Agreement) by reason of any Excusable Delay. A Party experiencing an
Excusable Delay in its performance shall immediately notify the other Party by
telephone (to be confirmed in writing within three days after the inception of
the Excusable Delay) and shall describe in reasonable detail the circumstances
causing such Excusable Delay. The Party experiencing Excusable Delay shall be
excused from performance of such obligations so affected by the Excusable Delay
event for the period during which the Excusable Delay event continues and for
such time thereafter as is reasonably necessary to overcome the effects of such
Excusable Delay, Both Parties shall use all reasonable efforts to overcome or
work around the Excusable Delay event as soon as reasonably practicable.
11. DISPUTE RESOLUTION
11.1 GENERAL. Any dispute between the Parties arising under or in
connection with this Agreement or any breach of this Agreement (a "Dispute")
shall be resolved solely in accordance with the procedures in this Section 11.
11.2 EFFORTS TO RESOLVE BY MUTUAL AGREEMENT. Any Dispute arising from
or in connection with this Agreement or the relationship of the Parties under
this Agreement whether based on contract, tort, common law, equity, statute,
regulation, order or otherwise, shall be resolved as follows:
(a) Upon written request of either WildCard, on the one hand,
or Client, on the other hand, the Parties will appoint a designated
representative whose task it will be to meet for the purpose of
endeavoring to resolve such Dispute.
(b) The designated representatives shall meet as often as the
Parties reasonably deem necessary to discuss the problem in an effort
to resolve the Dispute without the necessity of any formal proceeding.
(c) Formal proceedings for the resolution of a Dispute may not
be commenced until the earlier of:
(i) the designated representatives concluding in
good faith that amicable resolution through
continued negotiation of the matter does not
appear likely; or
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(ii) the expiration of the thirty (30) day period
immediately following the initial request to
negotiate the Dispute;
provided, however, that this Section 11.2 will not be construed to prevent a
Party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors or to seek temporary or preliminary injunctive relief pursuant
to Section 6.7.
11.3 ARBITRATION.
(a) If the Parties are unable to resolve any Dispute as
contemplated by Section 11.2, such Dispute shall be submitted to mandatory and
binding arbitration at the election of either WildCard, on the one hand, and
Client, on the other hand (the "Disputing Party"). Except as otherwise provided
in this Section 11.3, the arbitration shall be pursuant to the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA").
(b) To initiate the arbitration, the Disputing Party shall
notify the other Party in writing (the "Arbitration Demand"), which shall (i)
describe in reasonable detail the nature of the Dispute, (ii) state the amount
of the claim, (iii) specify the requested relief and (iv) name an arbitrator who
(A) has been licensed to practice law in the U.S. for at least ten years, (B) is
not then an employee of Client or WildCard or an employee of an Affiliate of
either Client or WildCard, and (C) is experienced in representing clients in
connection with commercial agreements (the "Basic Qualifications"). Within
fifteen (15) days after the other Party's receipt of the Arbitration Demand,
such other Party shall file, and serve on the Disputing Party, a written
statement (i) answering the claims set forth in the Arbitration Demand and
including any affirmative defenses of such Party; (ii) asserting any
counterclaim, which shall (A) describe in reasonable detail the nature of the
Dispute relating to the counterclaim, (B) state the amount of the counterclaim,
and (C) specify the requested relief; and (iii) naming a second arbitrator
satisfying the Basic Qualifications. Promptly, but in any event within fifteen
(15) days thereafter, the two arbitrators so named will select a third neutral
arbitrator from a list provided by the AAA of potential arbitrators who satisfy
the Basic Qualifications and who have no past or present relationships with the
Parties or their counsel, except as otherwise disclosed in writing to and
approved by the Parties. The arbitration will be heard by a panel of the three
arbitrators so chosen (the "Arbitration Panel"), with the third arbitrator so
chosen serving as the chairperson of the Arbitration Panel. Decisions of a
majority of the members of the Arbitration Panel shall be determinative.
(c) The arbitration hearing shall be held in Fort Lauderdale,
Florida or at such other location as the Parties may mutually agree. The
Arbitration Panel is specifically authorized to render partial or full summary
judgment as provided for in the Federal Rules of Civil Procedure. In the event
summary judgment or partial summary judgment is granted, the non-prevailing
Party may not raise as a basis for a motion to vacate an award that the
Arbitration Panel failed or refused to consider evidence bearing on the
dismissed claim(s) or issue(s). The Federal Rules of Evidence shall apply to the
arbitration hearing. The Party bringing a particular claim or asserting an
affirmative defense will have the burden of proof with respect thereto. The
arbitration proceedings and all testimony, filings, documents and information
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relating to or (a) presented during the arbitration proceedings shall be deemed
to be information subject to the confidentiality provisions of this Agreement.
The Arbitration Panel will have no power or authority, under the Commercial
Arbitration Rules of the AAA or otherwise, to relieve the Parties from their
agreement hereunder to arbitrate or otherwise to amend or disregard any
provision of this Agreement, including, without limitation, the provisions of
this Section 11.3.
(d) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section 11.3, the arbitrator shall
be replaced by the Party who selected such arbitrator, or if such arbitrator was
selected by the two Party-appointed arbitrators, by such two Party-appointed
arbitrators selecting a new third arbitrator in accordance with Section 11.3(b).
Each such replacement arbitrator shall satisfy the Basic Qualifications. If an
arbitrator is replaced pursuant to this Section 11.3(d) after the arbitration
hearing has commenced, then a rehearing shall take place in accordance with the
provisions of this Section 11.3 and the Commercial Arbitration Rules of the AAA.
(e) At the time of granting or denying a motion for summary
judgment as provided for in (c) and within fifteen (15) days after the closing
of the arbitration hearing, the Arbitration Panel shall prepare and distribute
to the Parties a writing setting forth the Arbitration Panel's finding of facts
and conclusions of law relating to the Dispute, including the reasons for the
giving or denial of any award. The findings and conclusions and the award, if
any, shall be deemed to be information subject to the confidentiality provisions
of this Agreement.
(f) The Arbitration Panel is instructed to schedule promptly
all discovery and other procedural steps and otherwise to assume case management
initiative and control to effect an efficient and expeditious resolution of the
Dispute. The Arbitration Panel is authorized to issue monetary sanctions against
either Party if, upon a showing of good cause, such Party is unreasonably
delaying the proceeding.
(g) Any award rendered by the Arbitration Panel will be final,
conclusive and binding upon the Parties and any judgment hereon may be entered
and enforced in any court of competent jurisdiction.
(h) Each Party will bear a pro rata share of all fees, costs
and expenses of the arbitrators, and notwithstanding any law to the contrary,
each Party will bear all the fees, costs and expenses of its own attorneys,
experts and witnesses; provided, however, that in connection with any judicial
proceeding to compel arbitration pursuant to this Agreement or to confirm,
vacate or enforce any award rendered by the Arbitration Panel, the prevailing
Party in such a proceeding will be entitled to recover reasonable attorneys'
fees and expenses incurred in connection with such proceeding, in addition to
any other relief to which it may be entitled.
11.4 EQUITABLE RELIEF. Nothing in Sections 11.2 or 11.3 shall be
construed to prevent any Party from seeking from a court a temporary restraining
order or other temporary or preliminary relief pending final resolution of a
Dispute pursuant to Section 11.2 or Section 11.3.
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12. TERM; TERMINATION
12.1 TERM. The term of this Agreement shall commence on the Effective
Date and shall continue until this Agreement is terminated as provided below.
If, after the first anniversary of the Effective Date, no Program Schedules are
then in effect under this Agreement, a Party may terminate this Agreement,
without cause, upon sixty (60) days prior written notice to the other Party.
12.2 TERMINATION FOR CAUSE. In the event of a material breach of this
Agreement by a Party (the `Breaching Party"), the other Party (the
"Non-Breaching Party") may give written notice of such material breach
specifying in reasonable detail the nature of the breach and, if the breach may
be cured, the curative action which needs to be taken by the Breaching Party
(the `Breach Notice"). If the Breaching Party fails to cure the material breach
within thirty (30) days after receipt of the Breach Notice, then the
Non-Breaching Party shall have the right to terminate this Agreement or the
applicable Program Schedule under which such breach has occurred immediately
upon notice; provided, however, that if the Breaching Party has commenced a cure
of the breach within such 30 day period after receipt and thereafter diligently
and in good faith pursues the completion of such cure, the Non-Breaching Party
shall not have the right to terminate this Agreement unless the breach is not
fully cured as of sixty (60) days after receipt of the Breach Notice. In
addition to the foregoing termination rights, WildCard shall have the right, at
its election, to terminate this Agreement and all Program Schedules immediately
by written notice, or alternatively to suspend further performance of Services
without terminating this Agreement, if (a) Client fails to pay any Charges
within ten (10) days, or (b) if required by the Associations, or (c) if Client
fails to fulfill its obligations to fund the Proceeds Account as required
herein. In particular, Client acknowledges that the Issuing Bank may require the
termination of this Agreement and any or all Program Schedules hereunder in the
following circumstances:
(i) Failure of Client to observe or perform, in any material respect,
Client's obligations under this Agreement that continues for a period of (i)
thirty (30) days after the Issuing Bank provides WildCard written specifying the
failure in the case of a failure not involving the payment of money, or (ii) ten
(10) days after the Issuing Bank provides WildCard written notice specifying the
failure in the case of a failure to pay any amount then due under this
Agreement;
(ii) In the event any financial statement, representation, warranty,
statement or certificate furnished to it by Client in connection with or arising
out of this Agreement is materially and intentionally untrue as of the date made
or delivered.
(iii) Client (A) voluntarily commencing any proceeding or filing any
petition seeking relief under Title 11 of the United States Code or any other
Federal, state or foreign bankruptcy, insolvency, liquidation or similar law,
(B) applying for or consenting to the appointment of a receiver, trustee,
custodian, sequestrator or similar official for such Party or for a substantial
part of its property or assets, (C) making a general assignment for the benefit
of creditors, or (D) taking corporate action for the purpose of effecting any of
the foregoing; or
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(iv) The commencement of an involuntary proceeding or the filing of an
involuntary proceeding or the filing of an involuntary petition in a court of
competent jurisdiction seeking (A) relief in respect of Client, or of a
substantial part of its property or assets under Title 1 I of the United States
Code or any other Federal, state or foreign bankruptcy, insolvency, receivership
or similar law, (B) the appointment of a receiver, trustee, custodian,
sequestrator or similar office for the Client or for a substantial part of its
property or assets, or (C) the winding up or liquidation, of the Client, if such
proceeding or petition shall continue un-dismissed for sixty (60) days or an
order or decree approving or ordering any of the foregoing shall continue
unstayed and in effect for sixty (60) days.
(v) Upon any change to or enactment of any law or regulation which
would have a material adverse effect upon the Transaction Card Program.
12.3 INSOLVENCY. Except as otherwise provided by law, either Party may
terminate this Agreement by written notice to the other Party if one of the
Parties (a) commences a voluntary proceeding under any Federal or state
bankruptcy, insolvency or reorganization law, or (b) has such a proceeding filed
against it and fails to have such proceeding stayed or vacated within thirty
(30) days, or (c) upon the end of any such stay, fails to have such involuntary
proceeding vacated within ten (10) business days thereafter, or (d) admits the
material allegations of any petition in bankruptcy filed against it, or (e) is
adjudged bankrupt, or (f) makes a general assignment for the benefit of its
creditors, or if a receiver is appointed for all or a substantial portion of
such Party's assets and is not discharged within ten (10) business days after
the appointment of the receiver. Any termination of this Agreement pursuant to
this Section 12.3 shall be considered to be by reason of anticipatory breach of
contract, and such termination shall be without prejudice to any rights the
terminating Party may have by reason of such anticipatory breach.
12.4 TERMINATION FOR CERTAIN LEGAL CHANGES. If either Party reasonably
concludes that this Agreement cannot be performed without violating applicable
Governmental Requirements, or if the application of such Governmental
Requirements impose material, additional and reasonably unavoidable costs to be
incurred by WildCard, the Parties will negotiate in good faith to modify this
Agreement to the extent necessary to ensure that the Parties will be in full
compliance with all applicable Governmental Requirements. If such modifications
require material change in Services or WildCard's cost of Services, the Parties
will negotiate in good faith to make any required change in the Charges
specified in this Agreement. If the Parties cannot agree to any required
changes, either Party may, by giving written notice to the other Party,
terminate this Agreement as of a date specified in such notice. In addition, if
any governmental authority or third party initiates any action asserting that
actions by Parties under this Agr eement violates any Governmental Requirements,
either Party may, by giving written notice, terminate this Agreement as of a
date specified in such notice.
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12.5 TRANSITION/WIND-DOWN PERIOD. Upon termination, subject to
approvals from the Associations, WildCard will continue to operate and maintain
the Transaction Card Program(s), including providing Services, for up to six (6)
months following the date of termination (the "Wind-Down Period") to allow the
Services to continue without interruption or adverse effect and to facilitate
the orderly transfer of responsibility for the Services to Client or its
designee. During the Wind-Down Period both WildCard and Client will continue to
be bound by and perform their respective obligations and responsibilities under
this Agreement with respect to Transaction Cards, including authorization,
processing, and settlement of Transaction Card transactions and corrections
thereto, recordkeeping, statement issuance, and customer support. For the
Charges specified in the Program Schedule, WildCard shall cooperate in good
faith and take any and all actions necessary to assist Client in the smooth
transition of the Services to Client or its designee, including by (i) making
any and all regulatory filings, and otherwise complying with all applicable
Governmental Requirements or Operating Rules, necessary to effect the transition
of the Services to Client or its designee, and (ii ) executing and delivering
any and all documents, files, information, data or other materials necessary to
effect the transition of the Services to Client or its designee. In no event
will WildCard be required to disclose to any service provider as part of
wind-down efforts any Confidential Information of WildCard. The terms of this
Agreement will govern the provision of Services and the conduct of the Parties
during the Wind-Down Period.
13. INDEMNIFICATION
13.1 WILDCARD INDEMNITY.
(a) WildCard shall indemnify, defend, and hold harmless Client and its
representatives, successors and permitted assigns from and against any and all
claims made or threatened by any third party and all related losses, expenses,
damages, costs and liabilities, including reasonable attorneys' fees and
expenses incurred in investigation or defense, regardless of the theory of
liability or the nature of the legal proceeding ("Damages"), to the extent such
Damages arise out of or relate to the following: (i) any negligent act or
omission by WildCard, its representatives or any subcontractor engaged by
WildCard in the performance of WildCard's obligations under this Agreement; or
(ii) any material breach in a representation, covenant or obligation of WildCard
contained in this Agreement.
(b) WildCard shall indemnify, defend and hold Client harmless from and
against any and all claims made or threatened by any third party and all related
Damages incurred by Client on account of such third party's claim of
infringement or misappropriation resulting from Client's use of the WildCard
System or WildCard Content (excluding Client Content or Client Marks) of any
valid U.S. patent, copyright, trademark, trade secret or other Intellectual
Property Right. The foregoing obligation does not apply with respect to the
WildCard System, WildCard Content, or portions or components thereof or services
(i) not supplied by WildCard (e.g. third party software, services,
telecommunications or technology); or (ii) that are combined with other
products, processes or materials not supplied by WildCard where the alleged
infringement relates to such combination. WildCard shall also not have any
obligation with respect to further damages arising from Client's continued use
of infringing intellectual property after Wild Card has provided and implemented
modifications to the WildCard System or WildCard Content, as applicable, that do
not continue to infringe upon or misappropriate the third party's claimed
rights, and WildCard has notified Client in writing that the purpose of the
modification is to avoid fiirther infringement or misappropriation. In the event
such a claim by a third party, in WildCard's judgment, causes Client's quiet
enjoyment and use of the WildCard System or WildCard Content to be seriously
endangered or disrupted, or if either party reasonably believes that such is
likely, WildCard will, at its option, do one of the following: (i) replace the
WildCard System or WildCard Content, without additional charge, with a
compatible, functionally equivalent and non-infringing system; (ii) modify the
WildCard System or WildCard Content to avoid the infringement; (iii) obtain a
license to continue use of the WildCard System or WildCard Content for the term
of this Agreement and pay any additional fees required for such a license; or
(iv) if none of the foregoing alternatives are practical, in WildCard's business
judgment, indemnify Client as set forth above and terminate the affected Program
Schedules for convenience. The foregoing sets forth WildCard's exclusive
liability and Client's exclusive remedies with respect to claims for
infringement.
-27-
13.2 CLIENT INDEMNITY. Client shall indemnify, defend, and hold
harmless WildCard and its representatives, successors and permitted assigns from
and against any and all claims made or threatened by any third party and all
related Damages, to the extent such Damages arise out of or relate to the
following: (a) any negligent act or omission by Client, or its representatives
in the performance of CIient's obligations under this Agreement; (b) any
material breach in a representation, covenant or obligation of CIient contained
in this Agreement; or (c) any claims that the Client Content or Client Marks or
the use, reproduction or modification of the Client Content or Client Marks as
permitted by this Agreement, has violated, misappropriated or infringed the
Intellectual Property Rights of any third party.
13.3 MUTUAL INDEMNITY. WildCard and Client each agree to indemnify,
defend and hold harmless the other, and their respective Affiliates, officers,
directors, employees, agents, successors, and assigns, from any and all Damages
and threatened Damages to the extent they arise from or in connection with any
of the following third party claims (excluding, in the case of Client, claims by
Affiliates, and, in the case of WildCard, claims by subcontractors, third party
contractors and suppliers used by WildCard in providing the Services): (a) the
death or bodily injury of any agent, employee, customer, business invitee,
business visitor or other person caused by the negligence or other tortious
conduct of the indemnitor; (b) the damage, loss or destruction of any real or
tangible personal property caused by the negligence or other tortious conduct of
the indemnitor, and (c) any claim, demand, charge, action, cause of action, or
other proceeding asserted against the indemnitee but resulting from an act or
omission o f the indemnitor in its capacity as an employer or potential employer
of a person.
13.4 INDEMNIFICATION PROCEDURE. In the event a claim by a third party
for which indemnification may be available under this Agreement is made or filed
against a Party or any Entity, the Party against which the claim, suit or
proceeding is made (the "Indemnified Party"), shall promptly notify the other
Party (the "Indemnifying Party") in writing of the claim, suit or proceeding.
The Indemnifying Party, within thirty (30) days, or such shorter period as is
required to avoid any prejudice in the claim, suit or proceeding, after the
notice, may elect to defend, compromise, or settle the third party claim, suit
or proceeding at its expense. In any third party claim, suit or proceeding which
the Indemnifying Party has elected to defend, compromise or settle, the
Indemnifying Party shall not after the election be responsible for the expenses,
including counsel fees, of the Indemnified Party but the Indemnified Party may
participate therein and retain counsel at its own expense. In any third party
claim, suit or proceeding the defense of which the Indemnifying Party shall
have assumed, the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the matter without the
consent of the Indemnifying Party and the Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement affecting the
Indemnified Party to the extent that the judgment or settlement involves more
than the payment of money without the written consent of the Indemnified Party.
The Indemnified Party shall provide to the Indemnifying Party all information,
assistance and authority reasonably requested in order to evaluate any third
party claim, suit or proceeding and effect any defense, compromise or
settlement.
13.5 LIMITATION ON CLAIMS. Any claim for indemnification under this
Agreement must be made prior to the earlier of. (a) two years after the Party
claiming indemnification becomes aware of the event for which indemnification is
claimed, or (b) two years after the earlier of the termination of this Agreement
or the expiration of the term of this Agreement.
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14. GENERAL
14.1 INDEPENDENT CONTRACTOR RELATIONSHIP. WildCard is serving as an
independent contractor to Client under this Agreement. Nothing in this Agreement
shall be deemed or construed to create the relationship of partnership or joint
venture between the Parties, it being understood that neither the method of
computing compensation nor any other provision contained in this Agreement shall
be deemed to create any relationship between the Parties other than the
relationship of independent parties contracting for services. Neither Party has,
and shall not hold itself out as having, any authority to enter into any
contract or create any obligation or liability on behalf of, in the name of, or
binding upon the other Party.
14.2 NOTICES. Any notices to be given hereunder to any other Party,
including any notice of a change of address, shall be in writing and shall be
deemed validly given if (a) delivered personally, (b) sent by overnight or
second day express delivery service. (c) sent by registered or certified mail,
postage prepaid, return receipt requested, or (d) sent by confirmed facsimile,
as follows:
If to Client:
▇▇▇▇▇▇ BEAUMONT INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, CFO
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to WildCard:
WildCard Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
-29-
All such notices shall be deemed given on the date of actual receipt by the
addressee if delivered personally, on the date of deposit with the express
delivery service or the postal authorities if sent in either such manner, on the
date of the facsimile confirmation if sent in such manner, and on the date of
actual receipt by the addressee if delivered in any other manner.
14.3 SCHEDULES AND ATTACHMENTS. Immediately following the signature
page is a list of Schedules which have been attached to this Agreement before
execution and are hereby incorporated by reference. Following execution of this
Agreement, certain additional Schedules and attachments may be expressly agreed
upon by the Parties pursuant to the provisions of this Agreement whereupon such
exhibits or attachments shall become part of this Agreement and incorporated by
reference. References in this Agreement to a "Schedule" means an exhibit to this
Agreement and all attachments thereto unless otherwise provided.
14.4 RESOLUTION OF CONFLICT BETWEEN DOCUMENTS. In the event of any
conflict between the terms of this Agreement and any Schedule, this Agreement
shall control the Parties' rights and obligations except where this Agreement
has been expressly amended in such Schedule. In the event of any conflict
between the terms of any Schedule and an attachment to such Schedule, the
Schedule shall control the Parties' rights and obligations except where the
Schedule has been expressly amended in such attachment.
14.5 ASSIGNMENT. Each Party shall have the right to assign this
Agreement to an Affiliate of such Party as well as to any successor to a
substantial part of the business or assets of such Party; provided that any such
assignment shall not relieve the assigning Party of its obligations under this
Agreement. WildCard shall have the right to utilize the services of
subcontractors in performing the Services, provided that WildCard shall retain
responsibility under this Agreement for all subcontracted Services. The term
"Affiliate" means an entity controlling, controlled by, or under common control
with the specified Party, with control meaning (a) owning directly or indirectly
more than 50% of the outstanding voting equity interests of an entity or (b)
having the right directly or indirectly to appoint a majority of members of the
board or other body which directs the management and policies of an entity.
14.6 AMENDMENT OR WAIVER. No amendment or modification of this
Agreement shall be valid unless it is in writing and signed by both Parties. No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the Party who is asserted to have made the waiver; any waiver of a
breach or observance of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
14.7 HEADINGS; CAPTIONS. The headings and captions of this Agreement
are included for convenience only and shall not be considered in construction of
the provisions hereof.
14.8 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida without regard to its conflicts of laws principles. Subject to
the dispute resolution procedures in this Agreement, all legal proceedings
relating to the subject matter of this Agreement shall be maintained in the
federal courts sitting in the State of Florida (or in the state courts sitting
in the State of Florida if federal court jurisdiction is not available) and each
Party consents that jurisdiction and venue for any such legal proceedings shall
lie exclusively with such courts.
-30-
14.9 SURVIVAL. The provisions of Sections 3.9, 3.10, 3.11, 4.2, 4.3,
4.4, 5, 6, 7, 9, 11, 12.5, 13, 14.1, 14.2, 14.8 and 14.12 shall survive any
expiration or termination of this Agreement.
14.10 SEVERABILITY. If any provision of this Agreement shall be
determined by any court of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remainder of this Agreement, which shall be construed as if such invalid or
unenforceable provision had never been a part of this Agreement but in a manner
so as to carry out as nearly as possible the Parties' original intent.
14.11 BINDING EFFECT. This Agreement shall be binding upon and shall
benefit the Parties and their respective successors and permitted assigns.
14.12 NO THIRD PARTY BENEFICIARIES. There are no third Party
beneficiaries of this Agreement.
14.13 COUNTERPARTS. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
14.14 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties regarding the subject matter hereof and supersedes any
letters of intent, memorandums of understanding, confidentiality agreements, and
other agreements and communications, oral or written, between the Parties
regarding such subject matter.
IN WITNESS WHEREOF, the Parties hereto have caused this Services
Agreement to be duly executed and delivered by their respective officers thereto
duly authorized, all as of the day and year first above written.
WILDCARD SYSTEMS, INC. MORGAN BAUMONT, INC.
By: /S/ ▇. ▇. ▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ ------------------------------
Title: SVP Title: CEO
------------------------------ ------------------------------
Date: 08/12/04 Date: 08/12/04
------------------------------ ------------------------------
-31-
INDEX TO SCHEDULES
TO
SERVICES AGREEMENT
Schedule A Form of Program Schedule
Schedule B Schedule of Standard Charges
Schedule C Insurance Coverages
Schedule D Service Standards
Schedule E Service Vendor Agreement
-32-
SCHEDULE A
TO
SERVICES AGREEMENT
FORM OF
PROGRAM SCHEDULE
----------------
This Program Schedule (the "Program Schedule") is entered into this 31st day of
June 2004, by and between WILDCARD SYSTEMS, INC., a Florida corporation
("WildCard") and ▇▇▇▇▇▇ Beaumont, Inc. a Nevada Corporation ("Client"), in
accordance with the terms of the Services Agreement among the Parties dated June
31st, 2004 (the "Agreement").
1.0 OVERVIEW SUMMARY
▇▇▇▇▇▇ Beaumont (MB) will construct a consumer re-loadable card program
for retail distribution and reloads. The card will either be PIN only,
or will also allow for a signature to be collected at retail POS
locations.
2.0 WILDCARD SERVICES DESCRIPTION
MB will issue a Gift Card through its retail outlets, which will allow
a consumer to acquire a card which will be accepted either at POS
Signature, POS Debit or ATM locations. This card product will be
branded either VISA or MasterCard, Cirrus or Plus and Interlink or
Maestro. The consumer will purchase the Cards at participating MB
retail locations.
The distribution methods will vary by type or product. In the case with
a PIN only product, MB will allow for the card to be distributed at the
retail POS with the retail location providing compliance with state and
federal regulatory statutes. In the case with the POS signature
product, MB will allow for a application to be taken at retail POS and
data to be verified on a follow-up level. Should the purchaser prove to
be a candidate in good standing for a card, a card will be sent to them
and they will be able to perform value load functions on the card
through the MB terminal or API specification. The Cardholder will be
able to access their account balance via a "My Account" web site, or
IVR solution provided by WCS, or MB.
3.0 KEY ASSUMPTIONS
MB is a Federally licensed Money Service Provider (MSP) and has
provided WCS with a copy of that license. Furthermore MB will apply for
or shall have all state licenses required to load cash onto Stored
Value cards.
MB will need to construct policies for retail compliance with identify
verification of customers.
MB will be responsible for sending a nightly deposit of "good funds"
from all of their retail channel that provides their value load
services.
-33-
4.0 CLIENT OBLIGATIONS
Client will establish a separate funding and settlement account for
purposes of funds movement.
Client is responsible for developing and implementing a strategy for
activation of cards at retail POS. This could include WildCards API
specification, or our CardWiz(TM) application.
Client will need to work with WildCard to set all of the Fraud/Risk
Management practices for the program.
5.0 FRAUD MANAGEMENT/FRAUD DETECTION SERVICES.
5.1 Client elects to have WildCard provide Client with Fraud
Management/Fraud Detection Services, a portion of which may be provided in
conjunction with HNC, Inc., and its Falcon(TM) software (hereinafter referred to
as the "HNC Software"), which services shall consist of those services described
in this Section 5.0 and Attachment A to this Program Schedule.
5.2 WildCard is providing Client with Fraud Management/Fraud Detection
Services solely for the purpose of assisting Client in detecting possible
fraudulent transaction account activity on the Transaction Card accounts of
Client and for no other purpose. Client agrees that WildCard's providing of
Fraud Management/Fraud Detection Services does not confer upon Client any
license in or to the computational model(s) used by WildCard in providing the
Fraud Management/Fraud Detection Services.
5.3 In performing the Fraud Management/Fraud Detection Services, Client
desires for WildCard to utilize the variables and computational parameters set
forth in each Program Schedule A. Client shall be solely responsible for
approving the processing parameters set forth in each Schedule A, and shall
verify that such parameters effectively satisfy the requirements of Client's
fraud detection strategy. If Client desires to alter its fraud detection
strategy, Client shall notify WildCard in writing and the parties shall agree
upon an amended Schedule A setting forth the processing parameter changes
desired. Implementation of changes in fraud detection strategy will take ten
(10) days to implement. Client acknowledges that changes to the fraud detection
strategy may result in an adjustment of the Charges for the Fraud
Management/Fraud Detection Services.
5.4 HNC has established a Fraud Control Consortium whereby users of
debit card output contribute data for use by HNC to study fraud patterns, which
enables HNC to improve fraud detection methods. Client, through WildCard, shall
provide data to the Fraud Control Consortium as required and requested by HNC
within 30 days after the date of commencement of the Fraud Management/Fraud
Detection Services and on a calendar quarterly basis thereafter. Client
acknowledges that WildCard will employ the HNC Software using the Fraud Control
Consortium algorithms to produce Transaction Card output access for Client only
if Client contributes data to the Fraud Control Consortium.
-34-
5.5 In no event shall WildCard be liable to any person for any damages
caused by the performance of the HNC Software, any deficiency in the
construction of the processing parameters or any deficiency in the content of
the approved fraud strategy. In no event shall WildCard be liable to any person
for fraud losses that occur due to events that are outside the parameters of the
approved Schedule A strategy. Furthermore, Client shall be responsible for the
accuracy of all Client data and fraud control data provided to WildCard.
6.0 TERM
6.1 SCHEDULED START UP DATE. The Scheduled Start Up Date for Services
under this Program Schedule is October 31st, 2004.
6.2 ORIGINAL TERM. The term of this Program Schedule shall begin on the
date the Start-Up activities have been successfully completed and shall extend
for Three (3) Processing Years (the "Original Term"), unless extended or earlier
terminated in accordance with this Agreement. The first Processing Year shall
commence on September 1St, 2004 and continue through the last day of the twelfth
calendar month thereafter. Each subsequent Processing Year shall mean a twelve
(12) month period commencing on the expiration of the preceding Processing Year
("Processing Year").
6.3 RENEWAL TERM(S). This Program Schedule shall automatically extend
for additional periods of one Processing Year each (a "Renewal Term") following
the conclusion of the Original Term and each Renewal Term, if any, thereafter,
unless terminated prior to such extension as provided in this Section. If either
Party does not want this Agreement to automatically extend at the conclusion of
the Original Term (or any Renewal Term, whichever is applicable), then such
Party shall give the other Party written notice to that effect not less than six
(6) months before the expiration of the existing term (whether the Original Term
or a Renewal Terra. The pricing applicable during the Renewal Term shall be the
rates set forth in Section 7.2 of this Program Schedule increased to account for
a price index change, if any, described in Section 7.6 of this Program Schedule.
7.0 CHARGES
7.1 START-UP FEE. START UP FEES SHALL BE $15,000.00 FOR INITIAL
PROGRAM'S #1 AND #2 AS IDENTIFIED IN ATTACHMENT C. THIS FEE INCLUDES THE SCOPE
WORK/DEFINITION OF A PROGRAM, APPROVAL BY A SPONSOR BANK AND SET-UP OF A
CONFIGURABLE PROGRAM ON THE WILDCARD PLATFORM. TOOLS LIKE CARDWIZ(TM), My
ACCOUNT(TM), OR GIFT CARD IN A BOX WOULD REQUIRE ADDITIONAL FEES AS ITEMIZED IN
THE PRICING SCHEDULE. ANY ASSOCIATION OR BANK FEES FOR SPONSORSHIP (LIKE ISO OR
MSB OR BIN SET UP FEES) WOULD BE ADDITIONAL.
-35-
ADDITIONAL PROGRAMS WOULD BE A SET-UP FEE OF $10,000.00 EACH (THIS WOULD INCLUDE
PROGRAM #3 AS DEFAMED IN ATTACHMENT C , AGAIN, PROVIDING PROGRAMS USE
CONFIGURABLE CODE. ANY SOFTWARE TOOLS AS DEFINED ABOVE WOULD ALSO BE ADDITIONAL.
7.2 FEES. Except as set forth in this Section 7.2, the fees and charges
specified in Schedule B to the Service Agreement shall apply to the Services
provided to Client under this Program Schedule.
7.3
a. Client will pay a "monthly minimum" for programs #1 and #2
as outlined in Attachment C service fees beginning on the live date of
program. The amount of monthly billing for months 4-6 will be $5,000.00
monthly (Five Thousand Dollars), for months 7-12 this services minimum
will be $15,000.00 (Fifteen Thousand Dollars), for months 13 thru 24,
the monthly minimum service fee will be $20,000.00 (Twenty Thousand
Dollars), for months 25 thru 36 after live date of programs the amount
of monthly billing will be $25,000.00 (Twenty Five Thousand Dollars).
The monthly billing will be reflected by the minimum amount that
WildCard will ▇▇▇▇ to client, not including *Card Materials. If
client's actual fees are more than monthly minimum, no additional
billing will be required.
b. Client will pay a "monthly minimum" for programs #3 as
outlined in Attachment C service fees beginning on the live date of
program. The amount of monthly billing for months 4-6 will be $5,000.00
monthly (Five Thousand Dollars), for months 7-12 this services minimum
will be $15,000.00 (Fifteen Thousand Dollars), for months 13 thru 24,
the monthly minimum service fee will be $20,000.00 (Twenty Thousand
Dollars), for months 25 thru 36 after live date of programs the amount
of monthly billing will be $25,000.00 (Twenty Five Thousand Dollars).
The monthly billing will be reflected by the minimum amount that
WildCard will ▇▇▇▇ to client, not including *Card Materials. If
client's actual fees are more than monthly minimum, no additional
billing will be required.
* Card materials to include things such as Plastic Cards, Postage,
Envelopes, Labels, Affixment of labels, Terms and Conditions... etc.
7.4 REIMBURSEMENTS AND ASSESSMENTS
a. The communications data circuit, including the reoccurring
service charge, service termination fees and required modern(s) (data
sets) at Client's location(s) and WildCard, terminal(s) and any other
directly associated expenses, shall be at Client's expense. The data
circuit cost will be no greater than that associated with a
point-to-point digital data circuit(s) based on the tariffs of
WildCard's primary carrier. One time costs related to the installation
of the circuit, as specified by such tariffs, will also be paid by
Client. The actual circuit speed and ensuing cost will be determined by
Client's communications requirements.
b. Client shall be responsible for and billed directly for any
Association dues, fees and assessments.
-36-
c. Client shall pay all courier expenses associated with the
transportation of reports and documents from Client to WildCard and
from WildCard to Client.
d. WildCard agrees to act as an agent on behalf of Client and
Client shall reimburse WildCard for the purchase on Client's behalf of
the postage required for materials mailed by WildCard on behalf of
Client. The amount reimbursed by Client to WildCard for postage while
this Agreement is in effect will be the then current first class
postage rate for all mailings mailed by WildCard on behalf of Client.
7.5 LIQUIDATED DAMAGES. The Charges under this Program Schedule were
determined by mutual agreement based upon certain assumed volumes of Services
and the length of the Original Term of this Agreement. Client acknowledges that
without the certainty of revenue from the Minimum Charges provided in Section
7.3 of this Program Schedule, WildCard would have been unwilling to provide
processing services at the prices set forth in this Program Schedule. The
Parties agree it would be difficult or impossible to ascertain WildCard's actual
damages for a termination or other breach of the Agreement by Client resulting
in a termination of this Program Schedule before the end of the Original Term.
The Parties further agree that an amount equal to the sum of the present values
of the payment in each full Processing Year which remains during the Original
Terns of this Program Schedule in an amount equal to the greater of (a) seventy
percent (60%) of the Charges which were paid by Client to WildCard for the
Services provided under this Program Schedule during the Processing Year which
immediately precedes the Processing Year in which termination occurs, or (b) the
Minimum Charges (the "Liquidated Damages") is a reasonable estimation of the
actual damages which WildCard would suffer if WildCard were to fail to receive
the processing business under this Program Schedule for the full Original Term.
In determining the present value of the amount, an interest rate equal to the
three (3) month Treasury ▇▇▇▇ Rate, as quoted in THE WALL STREET JOURNAL for the
date on which termination occurs, or if not available on the date of
termination, as soon thereafter as the next edition of THE WALL STREET JOURNAL
is published, shall be assumed and the payments shall be assumed to be made on
the first day of each year of the Original Term of this Program Schedule. Each
Party acknowledges and agrees, after taking into account the terms of the
Agreement, this Program Schedule, and all relevant circumstances at the date
hereof, that the Liquidated Damages payable under this Section 7.5 represents a
reasonable and genuine pre-estimate of the damages which would be suffered by
WildCard in the event of early termination of this Program Schedule and does not
constitute a penalty. Despite the foregoing, nothing in the Agreement shall
limit WildCard's right to recover from Client (a) any amounts advanced by
WildCard on behalf of Client in the performance of the Services, (b) any amounts
for which Client is Liable under the Agreement, or (c) any payment under any
provision for indemnification under the Agreement.
-37-
IN WITNESS WHEREOF, pursuant and in accordance with the Services Agreement
between the Parties, the Parties have executed this Program Schedule as of July
12th, 2004.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: CEO
------------------------------
WILDCARD SYSTEMS, INC.
By: /S/ ▇. ▇. ▇▇▇▇▇
--------------------------------
Title: SVP
------------------------------
-37-
SCHEDULE B
TO
SERVICES AGREEMENT
SCHEDULE
OF
STRANDARD CHARGES
-----------------
-38-
SCHEDULE C
TO
SERVICES AGREEMENT
INSURANCE COVERAGES
-------------------
1. WILDCARD INSURANCE COVERAGE REQUIREMENTS. WildCard agrees to keep in
full force and effect and maintain at its sole cost and expense the
following policies of insurance during the term of this Agreement:
(1) Workers' Compensation and Employer's Liability
Insurance:
(i) Statutory Worker's Compensation
including occupational disease in accordance with
law.
(ii) Employer's Liability Insurance with
minimum limits of $500,000 per employee by accident/
$500,000 per employee by disease.
(2) Commercial General Liability Insurance (including
contractual liability insurance) providing coverage for bodily
injury and property damage with a combined single limit of not
less than one million dollars ($1,000,000) per occurrence.
(3) Professional Liability/Errors and Omissions
insurance covering acts, errors and omissions arising out of
WildCard's operations or Services in an amount not less than
three million dollars ($3,000,000) per occurrence.
(4) Employee Dishonesty Forgery and Alteration
Insurance covering losses arising out of or in connection with
any fraudulent or dishonest acts committed by WildCard
personnel, acting alone or with others, in an amount not less
than one million dollars ($1,000,000) per occurrence.
2. CLIENT INSURANCE COVERAGE REQUIREMENTS. Client agrees to obtain and
maintain each of the following insurance coverages during the term of
this Agreement, at Client's sole expense:
(1) Workers' Compensation and Employer's Liability
Insurance:
(i) Statutory Worker's Compensation
including occupational disease in accordance with
law.
(ii) Employer's Liability Insurance with
minimum limits of $500,000 per employee by accident/
$500,000 per employee by disease.
-40-
(2) Commercial General Liability Insurance (including
contractual liability insurance) providing coverage for bodily
injury and property damage with a combined single limit of not
less than one million dollars ($1,000,000) per occurrence.
(3) Professional Liability/Errors and Omissions
Insurance covering acts, errors and omissions arising out of
Client's operations or services in an amount not less than
three million dollars ($3,000,000) per occurrence.
(4) Employee Dishonesty, Forgery and Alteration
Insurance covering losses arising out of or in connection with
any fraudulent or dishonest acts committed by Client
personnel, acting alone or with others, in an amount not less
than one million dollars ($1,000,000) per occurrence.
-41-
SCHEDULE D
TO
SERVICES AGREEMENT
SERVICE STANDARDS
-----------------
The service level standards and performance guidelines described herein are
applicable to the WildCard System. The performance of other entities outside the
WildCard System (e. g., Client, the Associations, and various Internet service
providers) will not be included in the determination of WildCard's adherence to
the Service Levels defined herein.
BELOW ARE THE MINIMUM SERVICE LEVEL STANDARDS AND PERFORMANCE GUIDELINES THAT
ARE REQUIRED FOR THE TRANSACTION CARD PROGRAM:
SYSTEM AVAILABILITY: This section defines the service level agreement for each
major system supported by WildCard and the percentage of time it will be
available to the end-user community (e.g., on-line availability or "up time")
over the course of each program month. These sets of measurements exclude
normally scheduled outages (e.g., maintenance windows) as they are defined in
ATTACHMENT A, SYSTEMS AVAILABILITY.
o AUTHORIZATIONS: WildCard will provide 99.50% authorization response
processing levels for stored value card authorization requests received
from the Associations.
o INTERNET SERVICES: WildCard will provide 99.25% system-wide
availability to Internet based applications offered to Client
customers.
o ACCOUNT SERVICES: WildCard will meet the following service level
standards for the account services supported by WildCard.
o VRU: WildCard will provide 99.50% system-wide availability to
the Interactive Voice Response system (e.g., IVR).
o CUSTOMER CONTACT CENTER: WildCard will provide a 24x7 call
center manned 100% of the time, with 99.9% system-wide
availability to the Call Center.
o REPORTING SERVICES: WildCard will provide 99.25% system-wide
availability to all Internet based reports (e.g., on-line
report files). All report files will be transmitted within 24
hours of Account Receivable batch cycle.
DISASTER RECOVERY/BUSINESS CONTINUITY: This section defines the service level
agreement for the disaster and business recovery services supported by WildCard.
DISASTER RECOVERY EXERCISE: On an annual basis, WildCard will ensure that the
business resumption plan for this product offering is successfully executed
within a predetermined recovery time frame. In doing so, WildCard will exercise
the plan by recovering 100% or more of the applications and support facilities
deemed critical.
-42-
SYSTEM SERVICES: This section defines the service level agreement for the system
services supported by WildCard. Details for this set of measurements are defined
in ATTACHMENT B, SYSTEMS SERVICES.
1. SYSTEMS PROBLEM REPORTING: WildCard will provide a support group which
will be available 24 hours a day, 7 days a week, to take incoming calls
for assistance requests and to address system issues. The support group
will attempt to resolve issues reported on the call. If they are unable
to do so, they will contact the appropriate level of WildCard support
staff to assist in the resolution. Every attempt will be made to
resolve any systems services problems within the first call; however,
depending on the nature of the problem, resolution may not occur within
the first call due to factors outside of WildCard's control.
2. PLANNED OUTAGES: At times, there will be a need to address issues with
various systems used by Client and a planned outage outside the
negotiated maintenance window(s) will be required. When this occurs, a
Client Down Time form will be submitted. This form will contain
approvals on the time, date, and reason for the outage from the Client
management as well as WildCard management.
In the cases where a potential outage or planned outage occurs due to a
request by the Client to implement a change outside the maintenance
window or when the required WildCard testing and quality assurance
process are not followed, a Service Level Waiver will need to be
submitted. Upon approval, WildCard will be exempt from adherence to the
Service Level Agreement for this period of time.
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ATTACHMENT A: SYSTEMS AVAILABILITY
1. AUTHORIZATIONS
SYSTEM: WILDCARD AUTHORIZATION SYSTEM
E Connections: the Associations end-point authorization
interface
E Hardware Platform: Intel-based processor system, fiber channel
disk arrays
E Response Time: 90% of transactions will be responded to in
1 second or less, as calculated from the
time the transaction arrives at WildCard to
the time WildCard sends the response back.
99% of transactions will have a response
time of 5 seconds or less.
E Operating System: Windows 2000 SP3, SQL2000 Enterprise Edition
SP3, cluster configuration.
E Service Levels: 355 days a year, 24 hours a day, with the
following exceptions:
o 15 minutes between 3:00 and 05:00 EST Monday
through Sunday
o additional normal weekly scheduled
maintenance window which occurs each Sunday
mornings between 02:00 and 06:00 EST
{Although this is the scheduled maintenance
window, this maintenance is usually
completed within 35 minutes of starting)
2. INTERNET SERVICES
SYSTEM: WILDCARD WEB SERVICES
E Connections: Internet-based, multiple T1s
E Hardware Platform: Intel based processor systems, load
balancing switches, Cisco routers and
switches.
E Response Time: Response time is calculated from the time
the request reaches WildCard to the time
when WildCard sends the response. With the
exception of statement viewing, 90% of all
Internet requests will be responded to in 5
seconds or less as calculated from the time
the transaction arrives at WildCard.
Statement request response time will vary
due to the unknown quantity of data that
will need to be transmitted
Operating System: Windows 2000 SP 3 Enterprise Edition SP 3,
IIS 5.0 MTS
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ATTACHMENT C
DRAFT / PROGRAM OVERVIEWS
A) "Take One" Stored Value VISA hologram signature card.
o Printed application (T&C and signature required) is
displayed in a retail store, or auto sales
dealerships or agency.
o Consumer receives the application at the location,
reviews the Terms and Conditions and fills out the
information (all Patriot Act)
o The application is then submitted to ▇▇▇▇▇▇ Beaumont
along with payment and funds to be loaded onto the
card for approval and processing
▇ ▇▇▇▇▇▇ Beaumont submits information for fulfillment
to WildCard in electronic form (TBD by WildCard)
while maintaining the hard copy application and in
electronic for scanned)
o WildCard fulfills or cause order to be fulfilled and
shipped
o Either ▇▇▇▇▇▇ Beaumont or WildCard or ▇▇▇▇▇▇▇ Bank
subsidiary provides Tier 1 and or Tier 2 Customer
Service
o Cards will be able to be loaded with cash at any
▇▇▇▇▇▇ Beaumont load location
o Minimum Est Volume First Year Annual Volume 250,000
cards
1) Q1 of program 10,000 cards
2) Q2 of program 30,000 cards
3) Q3 of program 90,000 cards
4) Q4 of program 120,000 cards
B) Internet Sale Program
o Program is for a Visa Stored Value Hologram signature
card
o WildCard and Bank approves Internet ad campaign.
o Marketing is done on the Internet by Banner Ad with
link to ▇▇▇▇▇▇ Beaumont web site
o Web site has all Terms and Conditions etc.
o Program is sold at $129.95 which INCLUDES $100 OF THE
$129.95 BEING LOADED ONTO THE CARD
o Consumer fills in online application (all Patriot
Act) which includes email verification (no Yahoo or
Hotmail Accounts accepted) and submits for approval
o Application is either accepted or rejected while
consumer is online
o If accepted the consumer must then check method of
payment, credit card, checking account or other.
Other is an authorization number which they record
that allows the consumer to either go to the nearest
(searchable online) ▇▇▇▇▇▇ Beaumont retail location
and pay for the card via cash (location notifys MBI
of accepted payment) or consumer mails m a check to
▇▇▇▇▇▇ Beaumont.
o WildCard in electronic form (TBD by WildCard) while
maintaining the hard copy application and in
electronic for (scanned)
o WildCard fulfills or cause order to be fulfilled and
shipped
o Either ▇▇▇▇▇▇ Beaumont, or WildCard or ▇▇▇▇▇▇▇ Bank
subsidiary provides Tier 1 and or Tier 2 Customer
Service
o Cards will be able to be loaded with cash at any
▇▇▇▇▇▇ Beaumont load location
o Minimum Est Volume First Year Annual Volume 180,000
cards
1) Q1 of program 20,000 cards
2) Q2 of program 40,000 cards
3) Q3 of program 60,000 cards
4) Q4 of program 60,000 cards
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C) Retail Debit Card, PIN based
o J Hook Package (T&C and signature required) is
displayed in a retail store, or auto sales
dealerships or agency with T&C displayed on outside
of package.
o The package contains either a 1 or 2 Card ATM/Debit
Card
o Consumer purchases package at the location,
o The consumer then activates (Patriot Act) and then
load cash at the retail store
o Consumer Information is transmitted to WildCard
electronically along with cash load amounts
o Either ▇▇▇▇▇▇ Beaumont or WildCard or ▇▇▇▇▇▇▇ Bank
subsidiary provides Tier 1 and or Tier 2 Customer
Service
o Cards will be able to be loaded with cash at any
▇▇▇▇▇▇ Beaumont load location
o Minimum Est Volume First Year Annual Volume 250,000
cards
1) Q1 of program 10,000 cards
2) Q2 of program 30,000 cards
3) Q3 of program 90,000 cards
4) Q4 of program 120,000 cards
-46-
SCHEDULE E
TO
SERVICES AGREEMENT
SERVICES VENDOR AGREEMENT
Incorporating: Non-Disclosure & CONFIDENTIALITY CLAUSES
This SERVICES VENDOR AGREEMENT, encompasses the NON-DISCLOSURE and
CONFIDENTIALITY clauses intended to be enacted via this AGREEMENT, and in
EXHIBITS "A"," indicating payments; buy-rates and schedules thereof, related to
all services, products and programs of the WILDCARD SYSTEMS project described in
Exhibit "A" , and any, and all, associated, related and/or enhanced product
programs developed hereafter, hereinafter to be referred to in whole as the
"AGREEMENT". This Agreement is made effective this date: March 30, 2004 by and
between ▇▇▇▇▇▇ BEAUMONT INC. a Florida Corporation whose principal place of
business is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as
the "SERVICE VENDOR", and WILDCARD SYSTEMS INC., a FLORIDA corporation whose
principal place of business is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereinafter referred to as the "COMPANY", and all parties
herein mutually agree as follows:
1. DEFINITIONS
--------------
(a) ACCESSIBLE shall mean being freely accessed for use at any time.
(b) CASH CURRENCY shall mean U.S. government issued currency.
(c) DEBIT OR ATM NETWORK shall mean a Cirrus, Maestro, Star, Pulse, MasterCard,
Visa, Interlink network for conducting cash transactions on.
(d) DEBIT OR ATM CARD shall mean a plastic or laminate card with a magnetic
strip for holding information embossed with identifying account numbers to be
used to conduct cash currency transaction that is PIN (Personal Identification
Number) based for access and use.
(e) STORED VALUE CARD shall mean a plastic or laminate card with a magnetic
strip for holding information embossed with identifying account numbers to be
used to conduct cash currency transaction that has a Visa, MasterCard, American
Express or Discover card hologram logo on the front of the card which must be
pre funded with cash prior to use.
(f) CASH LOAD NETWORK shall mean a locations nationwide (48 states) where a
consumer may load cash onto a ATM Card, Debit Card or Stored Value Card for a
fee.
(g) LOAD FEE shall mean the money charged a consumer for loading cash onto a
Debit Card, ATM Card or Stored Value Card.
(h) CUSTOMER SERVICE shall mean people and resources available to consumer to
address questions as described in Exhibit TBD by program. (I) DOMESTIC shall
mean within the 48 contiguous States.
(j) PROGRAM shall mean any program defined in EXHIBIT "A" of this Agreement.
(k) WRITTEN APPROVAL shall mean documents submitted to parties in writing
requiring a signature, such approval not to be unreasonably withheld or delayed.
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(l) CARDHOLDER means an individual or entity which has established a Cardholder
Account with the Issuing Bank.
(m) CARDHOLDER ACCOUNT means an arrangement between a Cardholder and the Issuing
Bank, through which the Issuing Bank provides the Cardholder with the right to
use one or more ATM Cards, Debit Cards or Stored Value Cards issued through the
Issuing Bank under the Program.
(n) CARDHOLDER DATA means all personally identifiable information regarding a
Cardholder and transactions a Cardholder makes with an ATM Card, Debit Card or
Stored Value Card.
(o) GOVERNMENTAL REQUIREMENTS means collectively all statutes, codes,
ordinances, laws, regulations, rules, orders and decrees of all governmental
authorities (including without limitation federal, state and local governments,
governmental agencies and quasi-governmental agencies) having jurisdiction over
a party.
(p) INTELLECTUAL PROPERTY RIGHTS shall mean any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing (a) rights associated with works of authorship throughout the universe,
including but not limited to copyrights, moral rights, and mask-works, (b)
trademark and trade name rights and similar rights, (c) trade secret rights, (d)
patents, designs, algorithms and other industrial property rights, (e) all other
intellectual and industrial property rights (of every kind and nature throughout
the universe and however designated) (including logos, "rental" rights and
rights to remuneration), whether arising by operation of law, contract, license,
or otherwise, and (f) all registrations, initial applications, renewals,
extensions, continuations, divisions or reissues hereof now or hereafter in
force (including any rights in any of the foregoing).
(q) ISSUING BANK means a member bank of one or more of the credit card
associations or Debit or ATM Networks which has agreed to sponsor the Program.
(r) OPERATING RULES means, collectively, the regulations and procedures issued
by American Express, Discover, MasterCard, Visa, the Debit or ATM Networks, and
the Issuing Bank, as amended from time to time.
The terms defined in Section 1 include the plural as well as the singular.
Unless otherwise expressly stated, the words "herein," "hereof," and "hereunder"
and other words of similar import refer to this Agreement as a whole and not to
any particular section, subsection or other subdivision. The words "include" and
"including" shall not be construed as terms of limitation. The word "or" shall
mean "and/or" unless the context requires otherwise. The words "day," "month,"
and "year" mean, respectively, calendar day, calendar month and calendar year.
Other terms used in this Agreement are defined in the context in which they are
used and shall have the meanings there indicated.
2. DECLARATION OF INTENT
------------------------
(a) The COMPANY seeks to establish a working relationship with the SERVICES
VENDOR in all respects as determined herein, and hereafter, regarding the
opportunity as noted, and the SERVICES VENDOR seeks in turn likewise to develop
such a working relationship.
(b) The COMPANY seeks to acquire the services, of the SERVICES VENDOR, and/or
additionally, and/or alternatively, services, products and programs of the
SERVICES VENDOR'S third party vendors, via the SERVICES VENDOR'S contracts
thereof secured for said purposes. Attached hereunder via the EXHIBIT "A" are a
description of the services (collectively "Services") , schedules indicating
payments and buy-rates thereof.
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(c) MARKETING MATERIALS. Company shall be solely responsible for developing, at
its own expense, all of the marketing and advertising materials to advertise,
market and promote the Product; provided, however, that Company shall not engage
in any solicitation of the Product (not defined) [WildCard does not solicit the
sale of the products, its customers and clients do] until the proposed materials
have been reviewed by Company's legal counsel and the Services Vendor has
provided its Written Approval of all such materials.
3. OBLIGATIONS COMPANY AND SERVICES VENDOR
------------------------------------------
(a) During the term and subject to the terms and conditions contained herein,
Services Vendor agrees to provide Company the Services, as described in EXHIBIT
"A" and in such additional services schedules which are executed and delivered
by the parties from time to time during the term of this Agreement (each, a
"Services Schedule"). Detailed procedures and practices to be followed while
performing the Services shall be as set forth in a Services Schedule. The
Services Schedule shall further specify the term during which the Services shall
be provided by Services Vendor, the commencement date for the performance of the
Services, the fees payable for such Services, specifications applicable to the
Program, and other applicable terms.
(b) Company or Services Vendor may deem it necessary or appropriate from time to
time to add other services or increase, reduce, or change the Services under one
or more Programs (a "Service Change"). Either party may make a proposal for a
Service Change, whereupon the parties shall mutually evaluate feasibility,
manner and timing for implementation, impact on pricing, impact on performance
requirements and all other relevant matters. A Service Change shall not be
implemented unless and until the Service Change is approved by both parties. If
the Service Change is approved by the parties, the Service Change shall be
implemented by Services Vendor as expeditiously as possible. An approved Service
Change shall be set forth in a written amendment to the applicable Services
Schedule, which amendment shall be signed by authorized representatives of the
parties.
(c) Services Provider shall maintain complete and accurate records of and
supporting documentation for all transactions, financial and non-financial, that
result from or are created in connection with Services Provider's performance of
the Services and its other material obligations under this Agreement and that
are in sufficient detail to enable the performance of its obligations hereunder
to be substantiated ("Services Provider Records"). With respect to the amounts
chargeable to and payments made by Company under this Agreement, Services
Provider Records shall be kept in accordance with generally accepted accounting
principles applied on a consistent basis. Services Provider shall retain
Services Provider Records in accordance with this Agreement until the later of
(i) the minimum period of time period required to meet statutory obligations,
including, without limitations the Governmental Requirements or Operating Rules,
or, in the absence of a clear statutory minimum, (ii) for a period of five (5)
years after creation.
(d) Services Provider shall provide to Company (and internal and external
auditors, inspectors, regulators and other representatives that Company may
designate from time to time) access at reasonable hours to Services Provider
personnel and to Services Provider Records and other pertinent information, all
-49-
to the extent relevant to the performance of Services Provider's financial and
non-financial obligations under this Agreement and to the extent permitted by
applicable Governmental Requirements. Such access shall be provided for the
purpose of performing audits and inspections to, without limitation, (i) verify
the accuracy and completeness of Services Provider's invoices, (ii) examine
Services Provider's performance of its other financial obligations to Company
under this Agreement, and (iii) enable Company to meet applicable legal,
regulatory and contractual requirements.
4. CONFIDENTIAL INFORMATION.
----------------------------
(a) DEFINITION. For purposes of this Section 4, the term "Confidential
Information" means all information concerning a party (the "Disclosing Party")
that is provided to, or otherwise obtained by, one of the other parties (the
"Receiving Party") that may not be accessible or known to the general public,
whether or not specifically designated as "confidential" or "proprietary."
Confidential Information shall include, without limitation, all non-public and
proprietary information pertaining to the past, present or potential business,
operations, financial information, affairs, properties, personnel, products,
suppliers, rights, and consumers of the Disclosing Party and any other
information not generally known that may be of value.
(b) EXCEPTIONS. Notwithstanding the above paragraph, Confidential Information
does not include information that is (i) or becomes generally available to the
public without violation of this Agreement or any other obligation of
confidentiality (including, but not limited to, the posting of information on
any Internet website intended for access by a third party), (ii) already known
by the Receiving Party and not subject to an obligation of confidentiality,
(iii) independently developed by the Receiving Party without reference to the
Confidential Information, and/or (iv) disclosed without restriction to the
Receiving Party by a third party rightfully in possession of such Confidential
Information where the disclosure by the third party does not violate any
obligation of confidentiality. In addition, a party shall not be considered to
have breached its obligations under this Section 4 for disclosing Confidential
Information of the other party if in the opinion of such party's counsel, such
disclosure is required by legal process or pursuant to any applicable statute,
rule or regulation, provided that, except with respect to securities laws
disclosure obligations, such party advises the other party prior to making such
disclosure in order that the other party may object to such disclosure, take
action to assure confidential handling of the Confidential Information, or take
such other appropriate action to protect the Confidential Information.
(c) PROTECTION, USE AND DISCLOSURE. The Receiving Party shall cause its
employees, agents and every other person and entity that it permits to have
access to the Disclosing Party's Confidential Information to protect the
Disclosing Party's Confidential Information by using the same degree of care,
but no less than a reasonable degree of care, to prevent the unauthorized use or
disclosure of the Disclosing Party's Confidential Information as the Receiving
Party uses to protect its own confidential information of like nature. Except as
otherwise permitted herein, without the prior, express, and written consent of
the Disclosing Party, the Receiving Party shall never disclose or use any
Confidential Information of the Disclosing Party in any manner other than by
disclosing such Confidential Information to employees, agents or independent
contractors of the Receiving Party who have a need to know such Confidential
Information to perform services contemplated by this Agreement, provided that
they have been informed of the confidential nature of such information.
Furthermore, the Receiving Party shall promptly advise the Disclosing Party if
the Receiving Party learns of any unauthorized use or disclosure of any
Confidential Information of the
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(d) COURT ORDER. The Receiving Party may disclose Confidential Information
pursuant to court order, subpoena or similar legal process. The Receiving Party,
however, to the extent not prohibited by law, must give written notice of any
such order to the Disclosing Party at least fifteen (15) days prior to the date
of compliance with it (unless the Receiving Party has less than fifteen (15)
days notice itself, in which case the Receiving Party shall give the disclosing
party as much notice as is practicable under the circumstances). In all cases,
the Receiving Party agrees to take such steps as the Disclosing Party may direct
to further protect Confidential Information from disclosure, provided, however,
that the Receiving Party shall not be required to incur any additional expense
to do so.
(e) OWNERSHIP. The Disclosing Party shall continue to own all of its
Confidential Information disclosed pursuant to this Agreement, and, except as
otherwise expressly provided, nothing in this Agreement shall be deemed to grant
the Receiving Party any right to license, sublicense, or otherwise exploit such
Confidential Information, except pursuant to a written Agreement executed by
both parties.
(f) RETURN OF CONFIDENTIAL INFORMATION. The Receiving Party shall promptly
return to the Disclosing Party, at the Disclosing Party's sole cost and expense,
all Confidential Information of the Disclosing Party upon written request by the
Disclosing Party.
(g) RETAINED KNOWLEDGE. Nothing in this Agreement shall restrict any employees
or representatives of a party who retain solely in intangible form after
performing the obligations of such party under this Agreement, general ideas,
concepts, know-how, or techniques relating to data processing or network
management which either party, individually or jointly, develops or discloses to
such employee or representative while such employee or representative is
performing the obligations, or exercising the rights, of a party under this
Agreement, from using such ideas, concepts, know-how, or techniques for the
benefit of either party, except to the extent that such use infringes upon any
Intellectual Property Right of a Party or its affiliates; provided, however,
that this Section shall not be deemed to limit either Party's obligations under
this Agreement with respect to the disclosure or use of Confidential
Information.
(h) INTELLECTUAL PROPERTY RIGHTS. Except as expressly specified in this
Agreement, nothing in this Agreement shall be deemed to grant to one party, by
implication, estoppel or otherwise, license rights, ownership rights or any
other Intellectual Property Rights in any materials owned by or Confidential
Information of the other party or any affiliate of the other party.
(i) EQUITABLE REMEDIES. Each party acknowledges that, if it breaches (or
attempts or threatens to breach) its obligations under this Section 4, the other
party will be irreparably harmed. Accordingly, if a court of competent
jurisdiction should find that a party has breached (or attempted or threatened
to breach) any such obligations, such party will not oppose the entry of an
appropriate order compelling performance by such party and restraining it from
any further breaches (or attempted or threatened breaches).
(j) CONFIDENTIALITY OF AGREEMENT. Both parties agree that the terms and
conditions of this Agreement shall be treated as confidential information and
that no reference to the terms and conditions of this Agreement or to activities
pertaining thereto can be made in any form without the prior written consent of
the other party; provided, however, that the general existence of this Agreement
shall not be treated as confidential information and that either party may
disclose the terms and conditions of this Agreement: (a) as required by any
-51-
court or other governmental body; (b) as otherwise required by law including a
party's obligations under applicable securities laws; (c) to legal counsel of
the parties; (d) in confidence, to accountants, banks, ratings agencies,
proposed investors, and financing sources and their advisors; (e) in confidence,
in connection with the enforcement of this Agreement or rights under this
Agreement; or (f) in confidence, in connection with a merger or acquisition or
proposed merger or acquisition, or the like.
(k) SECURITY OF CARDHOLDER DATA. Company and Services Provider each acknowledge
and agree that this Agreement constitutes an agreement for Services Provider to
perform services for Company as contemplated in Title V of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Financial Modernization Act (the "Act") and Regulation P
issued under the Act ("Regulation P"). Without limiting the generality of the
terms of this Agreement, Services Provider agrees that it shall protect the
privacy of Cardholder's non-public personal information, as such terms are
defined in the Act and in Regulation P ("Consumer Information") to at least the
same extent that Client must maintain that confidentiality under the Act and
Regulation P. Without limiting the generality of the foregoing sentence,
Services Provider shall not disclose any non-public personal information to any
third person except as required in the performance of Services under this
Agreement, and Services Provider shall not use any non-public personal
information except to perform the Services described under this Agreement.
Services Provider shall establish administrative, technical and physical
safeguards for Company's customer records and information in Service provider's
control or possession from time to time. Such safeguards shall be designed for
the purpose of: (a) insuring the security of such records and information, (b)
protecting against any anticipated threats or hazards to the security or
integrity of such records and information; and (c) protecting against
unauthorized access to or use of such records and information that would result
in substantial harm or inconvenience to any Cardholder. Such safeguards shall be
established in accordance with Section 501 of the Act and the Interagency
Guidelines Establishing Standards for Safeguarding Customer Information adopted
pursuant to Section 501 of the Act. Company shall provide Services Provider with
a copy of its privacy policy established in accordance with the Act and
Regulation P.
(l) CISP/SDP REQUIREMENTS. Services Provider has designed and implemented an
Information Security Program that is designed to protect cardholder data in
accordance with the Visa Cardholder Information Security Program ("CISP")
requirements. At all times during the term of the Agreement, Services Provider
shall be in compliance with the CISP requirements, as the same may be revised
from time to time. Services Provider shall provide Company with copies of all
reports on compliance, quarterly and annual status forms and other reports filed
by Services Provider with Visa under the CISP requirements. Services Provider
acknowledges and agrees that its failure to comply with its obligations under
this Section shall be a material breach of this Agreement
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARTIES.
------------------------------------------------------------
5.1 MUTUAL REPRESENTATIONS, WARRANTIES, AND COVENANTS. Each party represents,
warrants and covenants to the other and acknowledges that the other Party has
relied upon the completeness and accuracy of such representations, warranties
and covenants in entering into this Agreement:
(a) It has the corporate capacity to enter into this Agreement and to
perform each of its obligations hereunder.
-52-
(b) It has duly authorized, executed and delivered this Agreement and
this Agreement constitutes a legally valid and binding obligation of it
enforceable against it in accordance with its terms except as such enforcement
may be limited by applicable bankruptcy, insolvency and other laws of general
application affecting the enforcement of creditors' rights and subject to
general equitable principles.
(c) It is not under any obligation of a contractual or other nature to
any person or entity which is inconsistent or in conflict with this Agreement or
which would prevent, limit or impair in any way the performance of its
obligations hereunder.
5.2 SERVICES PROVIDER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Services
Provider further represents, warrants and covenants to Company the following:
(a) Financial Information. Services Provider shall provide Company (i)
as soon as practicable after the end of each fiscal year of Services Provider,
and in any event within ninety (90) days thereafter, an audited consolidated
balance sheet of Services Provider, as at the end of such fiscal year, and
audited consolidated statements of income and cash flows of Services Provider,
for such year, all prepared in accordance with generally accepted accounting
principles consistently applied and setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail (the
"Year-End Financial Report"), (ii) quarterly, unaudited consolidated balance
sheets and related statements of income and cash flows of Services Provider.
Each Year-End Financial Report shall be accompanied by a report and unqualified
opinion thereon by independent public accountants of national standing selected
by Services Provider's board of directors.
(b) Compliance With Governmental Requirements and Operating Rules.
Services Provider shall comply with all Governmental Requirements and the
Operating Rules which are applicable to Services Provider's business, Services
Provider's provision of the Services and/or Services Provider's other
responsibilities under this Agreement, including without limitation securing any
licenses, permits, registrations or other authorizations from such governmental
authorities as Services Provider may need in order to provide the Services and
carry out Services Provider's other responsibilities under this Agreement
(collectively, the "Services Provider Requirements"). Services Provider
acknowledges and agrees that it is solely responsible for monitoring legal
developments applicable to the operation of its business, the Services and the
Services Provider systems, and interpreting Services Provider Requirements
applicable thereto, determining the requirements for compliance with all such
applicable Services Provider Requirements, and maintaining an ongoing compliance
program. Service Provider is responsible for any applicable State licensing,
statutes, regulations or guidelines.
(c) Performance Warranty. The Services and Services Provider System
will comply, operate, perform and be performed in accordance with this Agreement
and the applicable Services Schedules. All Services hereunder shall be performed
in a competent, professional and workmanlike manner and by personnel who possess
sufficient knowledge, skill and training to accomplish their assigned tasks.
(d) Authority. Services Provider is in good standing in the state of
its organization, is qualified to do business in each state in which it proposes
to provide products and services and where qualification is so required, and has
all licenses and permits necessary or required to provide such products and
-53-
services. Services Provider shall provide copies or other evidence thereof to
Company upon request. Any fees for licenses and permits required by law or
regulation that may be necessary for Services Provider's performance hereunder
shall be the responsibility of Services Provider.
(e) Employee Matters. Services Provider is not an employee, agent, or
partner of Company, and shall perform its obligations hereunder as an
independent contractor. Services Provider's personnel shall not be considered
employees of Company within the meaning or application of any federal, state, or
local laws or regulations. Services Provider shall be responsible for the
payment of wages, salaries, and other amounts due its personnel in connection
with their performance hereunder, and shall be responsible for all payroll
reports and obligations, including but not limited to withholding, social
security, unemployment insurance, workers' compensation, immigration and
naturalization, and similar items.
5.3 COMPANY'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Company further
represents, warrants, and covenants to Services Provider the following:
(a) Cooperation. Company will reasonably cooperate with Services
Provider in the performance of Company's activities contemplated by this
Agreement by, among other things, making available, as reasonably requested by
Services Provider, such volume and other forecasts, updated information,
management decisions and approvals so that Services Provider may fulfill its
obligations under this Agreement in a timely and efficient manner.
(b) Compliance With Governmental Requirements and Operating Rules.
Company shall comply with all Governmental Requirements and the Operating Rules
which are applicable to Company's business and Company's other responsibilities
under this Agreement, including without limitation securing any licenses,
permits, registrations or other authorizations from such governmental
authorities as Company may need in order to market and issue Stored Value Cards
to Cardholders and to carry out Company's other responsibilities under this
Agreement (collectively, the "Company Requirements"). Company acknowledges and
agrees that it is solely responsible for monitoring legal developments
applicable to the operation of its business and Stored Value Card operations,
and interpreting applicable Company Requirements, determining the requirements
for compliance with all applicable Company Requirements, and maintaining an
ongoing compliance program.
5.4 WARRANTY EXCLUSION. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY
MADE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, TO THE OTHER, ANY CARDHOLDER, OR TO ANY OTHER PERSON,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS
BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM
THE USE OF ANY SOFTWARE, SERVICES, HARDWARE OR OTHER MATERIALS PROVIDED UNDER
THIS AGREEMENT.
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6. INDEMNIFICATION; INSURANCE; LIMITATION OF LIABILITY.
-------------------------------------------------------
(a) INDEMNIFICATION BY COMPANY. Company agrees to indemnify and defend Service
Vendor and its directors, officers, employees and agents, and hold them harmless
from and against any and all actual or threatened claims, losses, proceedings,
actions, liabilities, judgments, awards or costs (including reasonable attorneys
fees and expenses)(collectively, "Losses") by any third party arising out of or
related to (i) the breach by of any of its representations or warranties
contained in this Agreement; (ii) the failure by Company to fully perform any of
its obligations hereunder; or (iii) the failure by Company to comply with any
Governmental Requirements or Operating Rules in connection with the performance
of its obligations hereunder.
(b) INDEMNIFICATION BY SERVICES VENDOR. Services Vendor agrees to indemnify and
defend Company and their respective directors, officers, employees and agents,
and hold them harmless from and against any and all Losses by any third party
arising out of or related to (i) the breach by Services Vendor of any of its
representations or warranties contained in this Agreement; (ii) the failure by
Services Vendor to fully perform any of its obligations hereunder; or (iii) the
failure by Services Vendor to comply with any applicable Governmental
Requirements or Operating Rules in connection with the performance of its
obligations hereunder; or .
(c) INDEMNIFICATION PROCEDURE. In the event that any claim is made or asserted
against a party entitled to indemnification under this Agreement (the
"Indemnified Party"), the Indemnified Party shall with reasonable promptness
notify the other Party with an indemnification obligation (the "Indemnifying
Party") of such claim (the "Claim Notice"), specifying the nature of such claim
and the amount or the estimated amount thereof to the extent then feasible
(which estimate shall not be conclusive of the final amount of such claim). The
Indemnifying Party shall have 30 days from the receipt of the Claim Notice (the
"Notice Period") to notify the Indemnified Party (i) whether or not the
Indemnifying Party disputes liability to the Indemnified Party hereunder with
respect to such claim and (ii) if the Indemnifying Party does not dispute such
liability, whether or not the Indemnifying Party desires, at the sole cost and
expense of the Indemnifying Party, to defend against such claim, provided that
the Indemnified Party is hereby authorized (but not obligated) prior to and
during the Notice Period to file any motion, answer or other pleading and to
take any other action that the Indemnified Party shall deem necessary or
appropriate to protect the Indemnified Party's interests. In the event that the
Indemnifying Party notifies the Indemnified Party within the Notice Period that
the Indemnifying Party does not dispute the Indemnifying Party's obligation to
indemnify hereunder and desires to defend against such claim, except as
hereinafter provided, the Indemnifying Party shall have the right to defend by
appropriate proceedings, which proceedings shall be promptly settled or
prosecuted by the Indemnifying Party to a final conclusion; provided that,
unless the Indemnified Party otherwise agrees in writing, the Indemnifying Party
may not settle any matter (in whole or in part) unless such settlement includes
a complete and unconditional release of the Indemnified Party. If the
Indemnified Party desires to participate in, but not control, any such defense
or settlement the Indemnified Party may do so at its sole cost and expense. If
the Indemnifying Party elects not to defend the Indemnified Party against such
Claim, whether by not giving the Indemnified Party timely notice as provided
above or otherwise, then, without waiving any rights against the Indemnifying
Party, the Indemnified Party may settle or defend against any such claim or
demand in the Indemnified Party's sole discretion and, if it is ultimately
determined that the Indemnifying Party is responsible therefore under this
Section 5, then the Indemnified Party shall be entitled to recover from the
Indemnifying Party the amount of any settlement or judgment and all
indemnifiable costs and expenses of the Indemnified Party with respect thereto,
including, without limitation, interest from the date such costs and expenses
were incurred.
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(d) INSURANCE. Each party shall obtain and maintain, at its own cost, the
insurance coverages which are described on Exhibit __ as being its respective
responsibility. These insurance coverages do not create or imply any limitation
of liability. The party which is responsible for obtaining and maintaining
certain insurance coverages shall provide the other party with certificates of
such insurance coverages promptly following the date that this Agreement has
been executed by both parties. Each insurance certificate shall provide that the
insurance policy shall not be subject to termination without at least thirty
(30) days prior written notice to the certificate holder. A party responsible
for obtaining and maintaining property insurance coverage shall use all
reasonable efforts to ensure that the policy contains a provision or endorsement
which waives the insurance company's right of subrogation against the other
party and its employees, agents, directors and officers in the event of any loss
or damage from events within the coverage of the insurance policy.
(e) DIRECT DAMAGES. If a party shall during the term of this Agreement be liable
to the other party or any affiliate, as a result of any disputes, controversies
or claims of any kind or nature arising under or in connection with this
Agreement or the transactions contemplated hereby (whether any such breaches,
disputes, controversies or claims are based upon contract, tort (including
negligence) or any other legal theory), all damages from all such breaches,
disputes, controversies or claims are limited to actual, direct and
out-of-pocket damages which are reasonably incurred by the injured party.
(f) CONSEQUENTIAL DAMAGES EXCLUSION. It is agreed that in no event, shall a
party be liable to the other Party for consequential, indirect, special,
punitive or incidental damages, or for any lost profits, lost revenues, or
damage to good will.
(g) LIMITATION ON DAMAGES.
(1) Exceptions. Notwithstanding the foregoing provisions of Section
6(e) and 6(f), the liability limitations set forth therein shall not apply with
respect to (i) the indemnification obligations of a party under this Agreement,
(ii) damages caused solely and directly by a party's gross negligence,
intentional misconduct or fraud, (iii) damages arising under a breach of Section
4; (iv) damages arising with respect to obligations in connection with the
Intellectual Property Rights of the other party; and (v) either Party's
liability, if any, for contribution or indemnity with respect to claims for
bodily injury to, or the death of, any person.
(2) Subject to the exceptions set forth in Section 6(g)(1), the
limitations set forth in Sections 6(e) and 6(f) shall apply whether or not the
alleged breach or default is a breach of a fundamental condition or term, or a
fundamental breach, or if any limited warranty or limited remedy fails of its
essential purpose.
7. FORCE MAJEURE
----------------
Neither Party shall be liable to the other by reason of failure or delay in the
performance of its obligations herein on account of Acts of God, fires, storms,
war, terrorist attacks, governmental action, labor conditions, earthquakes,
natural disasters, interruption in internet service or any other cause which is
beyond the reasonable control of such Party. In the event of such disability,
the disabled party will immediately notify the other of the disabling event and
will take every reasonable effort to overcome the disability and resume
performance under this Agreement as soon as practicable.
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8. TERM
-------
(a) For the purposes of this Agreement, there shall be an initial term of 2
years from the signing of this agreement. Should the Company and Services Vendor
mutually agree to an extension of this Agreement beyond the initial 2 year term
day, the Agreement shall be renewed for a 2 year period.
(b) This Agreement shall benefit and be binding upon the parties hereto and
their respective successors and assigns. As defined in Definitions of this
Agreement the obligations of the SERVICES VENDOR AND CUSTOMER herein noted shall
be effective immediately from the date of execution of this Agreement.
(c) TERMINATION FOR CAUSE. In the event of a material breach of this Agreement
by a party (the "Breaching Party"), the other party (the "Non-Breaching Party")
may give written notice of such material breach specifying in reasonable detail
the nature of the breach and, if the breach may be cured, the curative action
which needs to be taken by the Breaching Party (the "Breach Notice"). If the
Breaching Party fails to cure, to the extent curable, the material breach within
thirty (30) days after receipt of the Breach Notice, then the Non-Breaching
Party shall have the right to terminate this Agreement immediately upon notice;
provided, however, that if the Breaching Party has commenced a cure of the
breach within such 30 day period after receipt and thereafter diligently and in
good faith pursues the completion of such cure, the Non-Breaching Party shall
not have the right to terminate this Agreement unless the breach is not fully
cured as of sixty (60) days after receipt of the Breach Notice.
(d) INSOLVENCY. Except as otherwise provided by law, either party may terminate
this Agreement by written notice to the other party if one of the parties (a) is
insolvent or otherwise is unable to meet its debts as they become due, (b)
commences a voluntary proceeding under any Federal or state bankruptcy,
insolvency or reorganization law, (c) has such a proceeding filed against it and
fails to have such proceeding stayed or vacated within sixty (60) days, or (d)
upon the end of any such stay, fails to have such involuntary proceeding vacated
within thirty (30) business days thereafter, (e) admits the material allegations
of any petition in bankruptcy filed against it, (f) is adjudged bankrupt, (g)
makes a general assignment for the benefit of its creditors, or if a receiver is
appointed for all or a substantial portion of such party's assets and is not
discharged within thirty (30) business days after the appointment of the
receiver, or (h) ceases its business operations. Any termination of this
Agreement pursuant to this Section 8(d) shall be considered to be by reason of
anticipatory breach of contract by the non-terminating party, and such
termination shall be without prejudice to any rights the terminating party may
have by reason of such anticipatory breach. All rights granted under or pursuant
to this Agreement by Services Provider to Company are, and shall otherwise be
deemed to be, for purposes of Section 365(n) of the United States Bankruptcy
Code (as now constituted or hereafter amended, the "Code"), rights to
"intellectual property" as defined under the Code. The parties hereto agree that
Company shall retain and may fully exercise all of its rights and elections
under the Code.
-57-
(e) TERMINATION FOR CERTAIN LEGAL CHANGES. If either party reasonably concludes
that this Agreement cannot be performed without violating applicable
Governmental Requirements and Operating Rules or if the application of such
Governmental Requirements and Operating Rules impose material, additional and
reasonably unavoidable costs to be incurred by either party, the parties will
negotiate in good faith to modify this Agreement to the extent necessary to
ensure that the parties will be in full compliance with all applicable
Governmental Requirements and Operating Rules. If the parties cannot agree to
any required changes, either party may, by giving written notice to the other
party, terminate this Agreement as of a date specified in such notice, without
liability for any termination fee or other penalty. In addition, if any
governmental authority or third party initiates any action asserting that
actions by parties under this Agreement violates any Governmental Requirements
or Operating Rules, either party may, by giving written notice, terminate this
Agreement as of a date specified in such notice.
(f) TERMINATION BY SERVICES PROVIDER. In addition to the foregoing termination
rights, Services Provider shall have the right, at its election, to terminate
this Agreement by written notice, or alternatively to suspend further
performance of Services without terminating this Agreement, if:
(1) Failure to Maintain Association Membership. If Company is no longer
in good standing of the Card associations and fails to cure the same within
thirty (30) days thereafter. Company agrees to promptly notify Services Provider
if it is no longer in good standing of the card associations.
(2) Insurance Lapse. Services Provider may terminate this Agreement if
there is a termination or lapse in Company's insurance coverage as described in
this Agreement and Company has not reinstated the required insurance within
fifteen (15) days after receiving notice of such termination or lapse. Company
agrees to promptly notify Services Provider of any lapse in its insurance
coverages required under this Agreement.
(g) TERMINATION BY COMPANY. In addition to the foregoing termination rights,
Company shall have the right, at its election, to terminate this Agreement and
all Program Schedules by written notice:
(1) Force Majeure Event. If any force majeure event substantially
prevents or delays Services Provider's performance of any of the Services for
more than ten (10) days, then Company may immediately terminate this Agreement
without liability to Services Provider.
(2) Insurance Lapse. Company may terminate this Agreement if there is a
termination or lapse in Services Provider's insurance coverage as described in
this Agreement and Services Provider has not reinstated the required insurance
within fifteen (15) days after receiving notice of such termination or lapse.
Services Provider agrees to promptly notify Company of any lapse in its
insurance coverages required under this Agreement.
(3) Failure to Maintain Association Membership. If Services Provider is
no longer in good standing of the card associations and fails to cure the same
within (30) days thereafter. Services Provider agrees to promptly notify Company
if it is not longer in good standing of the card associations.
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9. NO PUBLICITY
---------------
Except as provided herein, the SERVICES VENDOR and COMPANY agrees not to
disclose in any manner, the Terms and Conditions of the Agreement. Yet, the
parties will permit each other to identify themselves as having an Agreement
with each other (as long as the Agreement Terms and Conditions are not
disclosed) for the business purposes of sales, marketing and promotion in
relation to the parties activities on behalf of the each other, and also to
enable the parties to market and promote the COMPANY AND SERVICE VENDOR in the
normal course of their expected sales and business operations activities
providing all written disclosure or Press releases shall receive prior Written
Approval of the parties as to content and placement.
10. GOVERNING LAW AND EQUITABLE RELIEF
--------------------------------------
(a) This Agreement shall be governed and construed in accordance with the laws
of the United States and the State of Florida. Each party consents to the
exclusive jurisdiction of the state courts of Florida, and U.S. federal courts
located therein, for any dispute arising out of this Agreement, and said
authority(s) shall govern the interpretation and enforcement of this Agreement.
(b) The parties agree that they will endeavor to settle any dispute, controversy
or claim arising out of or relating to this Agreement amicably between them
first, through direct discussions. Any dispute arising from any disagreement
between the parties, that cannot first be amicably settled between the parties
herein noted, shall first be submitted to arbitration, per the rules and
procedures of the American Arbitration Association, and any said arbitration
administered by the AAA in accordance with its rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. The requirement of filing a notice of claim with respect to the
dispute, controversy or claim submitted to mediation shall be suspended until
the conclusion of the mediation process. A current copy of the rules and
procedures for AAA may be found on the Internet.
(c) Nothing hereinabove to the contrary, this provision shall not be construed
to effect a waiver by, or the loss to, either party of its rights and remedies
pursuant to relevant state or federal law, specifically including, without
limitation, its right to seek redress for any claimed grievance through the
courts, as contemplated within the terms of this Agreement.
11. FINAL AGREEMENT
-------------------
This Agreement constitutes the entire understanding between the parties with
respect to the Information provided herein. No amendment or modification of this
Agreement shall be valid or binding on the parties, unless mutually agreed to
and executed in writing, by the parties. This Agreement incorporates, and/or
terminates and supersedes all prior understandings or Agreements on the subject
matter hereof.
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12. NO ASSIGNMENT
-----------------
The SERVICES VENDOR AND COMPANY may not assign this Agreement, or any interest
herein, without both parties express written consent; provided, however, that
each party shall have the right, upon notice to the other party, to assign this
Agreement to an affiliate of such party as well as to any successor to a
substantial part of the business or assets of such party. Any such assignment
hereunder shall not relieve the assigning party of its obligations under this
Agreement.
13. SEVERABILITY
----------------
If any Term or Condition of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this Agreement, including all
of the remaining Terms and Conditions, shall survive, and will remain in full
force and in effect as if such invalid or unenforceable Term or Condition had
never been included. Thus any invalid portion thereof shall be corrected,
adjusted, or otherwise replaced.
14. NOTICES
-----------
Any notice required by this Agreement or given in connection with it, shall be
in writing, and shall be given to the appropriate party by personal delivery, or
by certified mail, or recognized overnight delivery services.
IF TO: ▇▇▇▇▇▇ BEAUMONT INC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention; ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
IF TO: WILDCARD SYSTEMS INC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention ▇▇▇▇▇▇ ▇▇▇▇▇
SVP Business Development
15. NO IMPLIED WAIVER
---------------------
Either party's failure to insist on any one or more instances upon strict
performance by the other party, of any of the Terms and Conditions of this
Agreement, shall not be construed as a waiver of any continuing or subsequent
failure to perform, or delay in performance, of any Term or Condition hereof
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16. HEADINGS
------------
Headings used in this Agreement are provided for convenience only, and shall not
be used to construe meaning or intent.
17. NO THIRD PARTY BENEFICIARIES.
---------------------------------
There are no third party beneficiaries of this Agreement.
18. NON-SOLICITATION.
---------------------
During the term of this Agreement and for twelve (12) months thereafter WildCard
and Wachovia shall not directly or indirectly solicit for employment any person
employed then or within the preceding twelve (12) months by the other Party,
without the other Party's consent in writing. The foregoing prohibition does not
include general public solicitations for employment.
Agreed to this March ____, 2004
▇▇▇▇▇▇ BEAUMONT, INC.
---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
Agreed to this March ____, 2004
WILDCARD SYSTEMS INC
-------------------------------
-------------,-------
-61-
"EXHIBIT A "
PROGRAM
-------
▇▇▇▇▇▇ Beaumont Inc. currently has a national network for loading cash onto
ATM/Debit and Stored Value Cards. This Cash Loading Network is currently in
excess of 3,000 locations and ▇▇▇▇▇▇ anticipates expanding its Cash Loading
Network to over 20,000 locations by the end of 2004.
This ▇▇▇▇▇▇ Beaumont network currently uses computer terminals and or Verifone
3740/3750 POS card swipe equipment with ▇▇▇▇▇▇ proprietary software located in
retail locations and store fronts to conduct the transaction of the consumer
placing cash on their ATM/Debit and or Stored Value Card.
▇▇▇▇▇▇ Beaumont Inc would like a strategic relationship with Company to allow
Company customers and card programs the ability to utilize ▇▇▇▇▇▇ Beaumont cash
loading network.
DESCRIPTION OF PROCESS OF LOADING CASH ONTO A CARD
--------------------------------------------------
Consumer enters a retail location and submits to the retail location cash that
the consumer wishes to load on their ATM/Debit or Stored Value Card. The
consumer pays the retail location a fee for this transaction.
The retail location accepts the amount of cash the consumer wishes to load along
with the fee to be changed and electronically deposits the cash onto the card
via computer and or POS equipment.
The POS equipment and or computer process the transaction by transmitting the
transaction information to a centralized secure server that contains the
necessary logic to forward the transaction information to the correct processor
or bank so the card account can be correctly credited. The Merchant will deposit
every day, the funds collected during the business day into a designated bank
account. These funds will be electronically transferred to the appropriate card
account within 24 to 72 hours, depending on the time of day, and day of week the
funds are deposited.
The server will log all information so that necessary reports can be derived
from the transaction logs to provide account management information necessary to
allow details of which card BINs, have been loaded with funds.
The timing for cash to be available on the card is 24 to 72 hours, depending on
the time of day, and day of week, the transaction is conducted.
ESTABLISHMENT OF ACCOUNTS.
--------------------------
WildCard will establish and maintain one or more Proceeds Accounts for the
benefit of the Cardholders of all Transaction Card Programs using Service
Provider for loading cash to stored value cards. Service Provider agrees to
establish and maintain, in a commercial demand deposit account (the"Funding
Account") at a financial institution designated by Service Provider, sufficient
-62-
funds to cover the aggregate amount of all Funding Payments since the previous
banking business day for Transaction Cards loaded through Service Provider. On
each banking business day, WildCard will initiate an ACH transaction debiting
from the Funding Account an amount equal to the aggregate Funding Payments on
all Transaction Cards occurring since the previous banking business day for
credit to the Proceeds Accounts. At all times, the Service Provider must provide
sufficient funds in the Funding Account to assure that the aggregate balance
will equal or exceed the aggregate amount of all Funding Payments since the
previous banking business day for Transaction Cards loaded through Service
Provider. In addition, Service Provider will maintain five (5) days of average
value loads, or a minimum of ten thousand dollars ($10,000), on deposit in an
Escrow Account with WildCard for wire transfer by WildCard to the Proceeds
Accounts if the Funding Account is not adequately funded. The cost of the wire
transfer will be charged to the Service Provider. The five (5) days of average
value loads calculation will be adjusted monthly, or more frequently, if
appropriate.
▇▇▇▇▇▇ is currently working on providing an instant national "Float Account"
which will allow the consumer Instant access to the cash which the consumer has
loaded on their card
SET UP
------
Company shall collect such information as BIN number and relevant card
information TBD between Company and ▇▇▇▇▇▇ Beaumont to allow specific a card
programs to operate on ▇▇▇▇▇▇ Beaumont cash loading network.
Company is charged a One Time Set Up Fee in advance for each card program it
wishes to set up on the ▇▇▇▇▇▇ Beaumont network.
Typically the set up time for a card program is 7- 10 days from receipt of the
One Time Set Up Fee
FEE'S AND COSTS;
----------------
One Time Set Up Fee is typically $5,000 per card program. Discounts to be
negotiated
Current Cash Loads are $4.95 to the consumer regardless of the amount of the
cash load
Typically Retail locations keep $3.00 - $3.50 per load out of the $4.95. This
typically depends upon number of POP's for the retail location and geographical
location.
Future Cash Loads involving a "National Float Account" may have higher fees.
▇▇▇▇▇▇ Beaumont is currently working with its financial partners to design and
fund a "National Float Account"
FEE'S OR COMMISSIONS PAID TO COMPANY;
-------------------------------------
Company shall receive XX cents out of the $4.95 charged to a consumer per load
of cash onto a card
FEE'S OR COMMISSIONS PAID TO COMPANY CUSTOMER OR CARD PROGRAM:
--------------------------------------------------------------
Card Program or Company Customer shall receive XX cents out of the $4.95 charged
to a consumer per load of cash onto a card
All fees and or Commissions are paid monthly and in within 15 days from the
close of the preceding month.
Reports are generated each month identifying number of loads per Card Program or
Customer and Geographical location of the load broken out by ZIP Code or State
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