EXHIBIT 10.6
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT This 2004 Restated CSCU
Card Processing Services Agreement (this "Agreement") is made as of January 1,
2004 by and between Card Services for Credit Unions, Inc., a Florida corporation
("CSCU") and Certegy Card Services, Inc. (formerly Equifax Card Services, Inc.),
a Florida corporation ("Certegy") with reference to the following facts:
A. CSCU is an organization consisting of member credit unions (the "Credit
Unions"), which are licensees of VISA U.S.A., Inc. ("VISA") and/or MasterCard
International, Inc. ("MasterCard").
B. Among other purposes, CSCU has been organized for the purpose of obtaining
and maintaining one or more bank identification numbers (BIN's) issued by VISA
and/or interbank card association numbers (ICA's) issued by MasterCard for
shared use by the Credit Unions in connection with their VISA and/or MasterCard
programs.
C. Certegy is engaged in the business of providing card processing services to
assist licensees of VISA and MasterCard in the operation of their card programs.
D. CSCU, in a desire to retain Certegy on an exclusive basis to provide card
processing services to the Credit Unions, entered into the CSCU Card Processing
Service Agreement with Equifax Card Services, Inc., f/k/a Telecredit Service
Center, Inc., on February 7, 1989, which was amended on September 15, 1989, July
1, 1992, March 27, 1993, and April 1, 1993 (collectively, the Original
Agreement"). The parties entered into a Restated CSCU Card Processing Service
Agreement on February 16, 1994, which they later amended on August 2, 1997 and
April 1, 1999 (the "Restated Agreement"). The term of the Restated Agreement
extends through September 30, 2004.
E. The parties now desire to enter into this Agreement to extend the term of the
Restated Agreement from October 1, 2004 through December 31, 2009 (the "Extended
Period"), and to update and again restate the terms of their Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
Services. 1.
1.1 Retention of Certegy. By this Agreement, CSCU retains Certegy, and Certegy
agrees, to provide card processing services to the Credit Unions in accordance
with the terms of this Agreement. The services to be provided (the "Services")
include all of the items referenced on Schedules X, X, X, X, X, X, X and L.
Except as otherwise provided for in this Agreement, so long as this Agreement
remains in effect, CSCU shall not retain any other party to provide any of
the Services. If CSCU wishes to utilize or offer additional services or products
not included on any of the Schedules or Exhibits, CSCU shall provide Certegy the
right of first refusal to provide those other services or products. In this
event, CSCU shall provide to Certegy in writing the specifications for those
services or products and shall give Certegy ninety (90) days from receipt of
such notice to advise CSCU if Certegy can provide the requested services and/or
products and on what additional terms (i.e., fees). CSCU may obtain competitive
bids from other providers in the industry for these other services and products
not included on the Schedules or Exhibits, but shall always provide Certegy the
opportunity to meet any competitive bid and provide those additional products
and services. In the event that Certegy is unable or unwilling to meet the bid
submitted by another third party processor, CSCU may purchase those services or
products from such other provider.
1.2 Should CSCU request a change to any of the Services that would require
modification of or addition to hardware or software utilized by Certegy or
hiring of additional staff by Certegy or result in Certegy incurring any
additional expenses in providing the Services (e.g., customization of a
particular program for a particular group of Credit Unions, or should CSCU
request Certegy to implement a program sooner then scheduled by Certegy,) then
Certegy and CSCU agree to negotiate whether and upon what terms such changes or
implementations shall be provided. Certegy reserves the right to make changes to
the Services from time to time so long as the changes do not prevent Certegy or
CSCU from meeting their obligations to the Credit Unions and Cardholders (e.g.,
changing vendors, changing equipment, upgrading software and other changes that
are determined necessary by Certegy, in its sole discretion, to maintain
performance levels and competitiveness). Certegy shall be responsible for
implementing, at no additional cost to CSCU or the Credit Unions, all updates
and releases as required by MasterCard and/or Visa, as well as modifications to
correct problems with the Services that are the responsibility of Certegy.
Certegy shall test all changes, using commercially reasonable means including
quality control checks, prior to placing changes into production, to increase
the likelihood of a successful implementation. In addition, Certegy will present
to CSCU information on new products and services prior to those new products or
services being offered to the Credit Unions.
1.3 Credit Union Service Agreement. Certegy shall enter into a "Credit Union
Service Agreement," substantially in the form of one of those agreements
attached as Exhibits "B," "B-1 and "B-2 with each Credit Union desiring to
acquire the Services.
1.4 Minimum Rating Requirements. From time to time, CSCU and Certegy may jointly
establish minimum financial requirements for eligibility in the program offered
pursuant to this Agreement.
1.5 Other Vendors. If a Credit Union wishes Certegy to provide to vendors data
pertaining to that Credit Union, that Credit Union shall provide written
authorization to Certegy to provide that data as well as indemnification for
claims pertaining to the provision of that data or the performance of any such
vendors, in a form acceptable to Certegy. In addition, Certegy my require any
such vendor to enter into written agreements with Certegy governing the
provisions of that data and the vendor's duty to protect the data from
compromise and unauthorized use or disclosure.
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Fees for the Services. 2.
2.1 CSCU Enrollment Fee. At the time a Credit Union enters into a Credit Union
Service Agreement, that Credit Union shall pay to CSCU, and CSCU hereby
authorizes Certegy to collect on its behalf, a nonrefundable enrollment fee of
One Hundred Fifty Dollars ($150.00).
2.2 Guaranteed Rates. Certegy shall charge the Credit Unions, and the Credit
Unions shall pay, those fees set forth on Schedules "A", "B", "C", "E", "G",
"J", "K" and "L", copies of which are attached to and made a part of this
Agreement (collectively, the "Schedules"). Subject to subparagraphs 2.3 and 2.4
of this Agreement, those fees set forth on the Schedules shall remain in effect
through the term of this Agreement. Pass through Fees. From time to time,
Certegy shall have the right to increase
2.3 any of the fees over which it has no control up to the amount of the actual
cost incurred by Certegy including, but not limited to, Certegy's reasonable
internal costs (collectively, the "Pass Through Fees") and which are identified
as such on the Schedules, effective as of the date those Pass Through Fees are
increased to Certegy. CSCU shall not be responsible, however, for any MasterCard
and Visa fines and penalties that result from Certegy's failure to fulfill its
obligations under this Agreement.
2.4 Fee Increases for Inflation. Effective October 1, 2004, upon written notice
in accordance with section 2.5, Certegy shall have the right, three times during
the Extended Period, to increase one or more of the fees set forth on the
Schedules, excluding the Pass Through Fees, by a percentage equal to the
Percentage Increase, if any, in the Consumer Price Index as described below, but
not to exceed 3% in any one increase. For purposes hereof, the following
definitions shall apply:
(i) The "Consumer Price Index" shall mean the Consumer Price Index of the Bureau
of Labor Statistics of the United States Department of Labor (the "DOL") for All
Urban Consumers, U.S. City Average (1982-84=100), "All Items" (the "Index"). If
the DOL revises the basis on which the Index is now calculated, the parties
shall make an appropriate conversion to a revised "Index" on the basis of
conversion factors published by the DOL. If conversion factors are not available
from the DOL, either party may request the DOL to provide an appropriate
conversion or adjustment. If the DOL is unable or unwilling to provide an
appropriate conversion or adjustment, or if the Index is discontinued, the
parties shall in good faith agree on a suitable substitute for the Index.
(ii) The "Percentage Increase" shall mean the percentage equivalent to the
fraction, the numerator of which is the Index for the Comparative Month less the
Index for the Base Month, and the denominator of which is the Index for the Base
Month.
(iii) The "Comparative Month" shall mean the third month prior to the effective
date of the increase, and the "Base Month" shall mean (a) in the case of the
first increase for any applicable Schedule, March of 2002, and (b) in the case
of a subsequent increases, the month that was the Comparative Month for the last
increase of the fees being increased.
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2.5 Notice of Fee Modification. Any allowed fee modification shall be effective
on the first calendar day of the next month following thirty (30) days prior
written notice from Certegy to CSCU and the Credit Unions. Certegy shall
document any fee modification by revising the applicable Schedules, providing a
copy of the revised Schedules to CSCU and providing notice of the changes to the
individual Credit Unions.
2.6 Payment of Fees. Fees for processing transactions shall be settled each
banking day for the transactions processed for the previous banking day and
shall be payable by deduction from the various Accounts referenced in section 3
of this Agreement. Fees for all other Services shall be invoiced by Certegy
monthly and shall be payable by deduction from the Accounts referenced in, and
in accordance with, section 3 of this Agreement. Settlement Procedures. 3.
Program Clearing Account. So long as this agreement remains in effect, Certegy
3.1 shall maintain on behalf of CSCU a demand deposit account (the "Program
Clearing Account" or "PCA") at a mutually agreeable financial institution the
purpose of settling transactions, charges, and reimbursements in connection with
the Credit Unions' VISA and MasterCard programs. Access. Certegy shall have the
right to make deposits into and withdrawals from
3.2 the PCA for the following purposes:
(i) daily settlement of all incoming VISA and MasterCard cardholder amounts due
VISA and MasterCard;
(ii) daily settlement of fees payable to Certegy for the transactions processed
the previous banking day;
(iii) monthly settlement of Certegy's fees and charges other than daily
transaction processing fees;
(iv) daily settlement of all VISA and MasterCard fees charged CSCU or a CSCU
member by VISA or MasterCard or deducted from Certegy's accounts, including
without limitation the combined warning bulletin fees, interchange fees, and
assessments;
(v) daily payment of any interest due Certegy for Funds paid by Certegy to VISA
or MasterCard on behalf of the Credit Unions that were not available in the PCA
(the "PCA Shortfall"), which interest shall be calculated at the prime rate
charged by Certegy's depository bank plus one percent (1%) for all PCA
shortfall;
(vi) daily investment for CSCU's benefit of available funds from the PCA as
described in section 3.4;
(vii) settlement of all incoming debt transactions; and
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(viii) settlement of all outgoing debit transactions not more than three (3)
business days following Certegy's receipt of such outgoing debit transactions
from a Credit Union.
3.3 Funding and Management of the PCA. CSCU, through each of the Credit Unions,
shall provide Certegy the funds to maintain on behalf of CSCU, at all times in
the PCA, a balance not less than the following (the "Minimum Balance"):
(i) If Certegy provides any of the Services referenced on Schedule "A" and "B",
the anticipated average number of credit cardholder accounts of each Credit
Union under its VISA and/or MasterCard programs for the first 90 days or 300
accounts, whichever is greater, x 2.5 (anticipated charges per cardholder
account per month) x $75 (anticipated average transaction amount) divided by
21.5 (average business days per month); plus
(ii) If Certegy provides any of the Services referenced on Schedule "E" and "J",
the anticipated average number of debit cardholder accounts of each Credit Union
under its VISA and/or MasterCard programs for the first 90 days or 300 accounts,
whichever is greater, x 5 (anticipated debits per cardholder account per month)
x $40 (anticipated average debit amount) divided by 21.5 (average business days
per month); plus
(iii) if Certegy provides any other Services to a Credit Union, an amount
sufficient to cover those daily transactions and chargebacks as well (e.g.,
Direct Processing Merchant Services as referenced on Schedule "C" or Commercial
Card Services on Schedule "G"). The above factors may be adjusted by Certegy
based on the actual transaction volume history of those Credit Unions for which
Certegy has been providing Services, and the factors shall thereafter be
adjusted quarterly by Certegy, or more often if deemed necessary by Certegy and
CSCU, based on the actual transaction volume history of the prior quarter and
seasonal factors. Certegy shall give prior written notice to CSCU and the Credit
Unions of any adjustment of the factors. Credit Union authorizes Certegy, at
Credit Union's expense, to access the PCA as well as the Settlement Account
through the Automated Clearing House ("ACH"), U.S. Central Credit Union's data
switch, wire transfer, or draft transfer in order to maintain Credit Union's
required balances, if applicable, or for any purpose described in this section
3, and similarly to transfer funds owing to a Credit Union into the applicable
account. CSCU guarantees the availability of the funds in the various accounts
referenced in this section 3 and agrees that Certegy shall at all times have
access to such funds for the above referenced purposes and further agrees that
Certegy shall be able to make the withdrawals and transfers required hereunder
and hereby authorizes Certegy to borrow funds, on a short-term basis on behalf
of CSCU, to maintain funds in those accounts in an amount reasonably required by
Certegy to perform daily settlements. Certegy agrees to manage the various
accounts on CSCU's behalf and on behalf of Credit Union to achieve these stated
purposes. Investment of Funds. Certegy shall invest any available funds in the
PCA on
3.4 behalf of CSCU in short-term investments to be mutually agreed on in
writing.
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3.5 Settlement Account. Certegy shall on behalf of CSCU require each Credit
Union to maintain, and each Credit Union shall maintain, at all times a demand
deposit account (a "Settlement Account") with funds in an amount sufficient to
enable CSCU and/or Certegy to replenish the PCA, on a daily basis, so that the
Credit Union's pro rata share of the Minimum Balance is maintained at all times.
CSCU and/or Certegy, through U.S. Central Credit Union's data switch, through
the Automated Clearing House ("ACH"), or through wire transfer, at the expense
of each Credit Union, shall have the right to transfer funds from each
Settlement account to the PCA, on a daily basis, in an amount necessary to
replenish the PCA as set forth above. Each Credit Union shall provide overdraft
protection for its Settlement Account to further ensure that CSCU and/or Certegy
shall be able to make the transfers necessary under this section. So long as
Certegy shall follow reasonable and prudent procedures to minimize loss
resulting from the failure of a Credit Union to maintain the required balance in
its Settlement Account, CSCU shall indemnify and hold harmless Certegy from and
against any losses and liabilities resulting from the failure of a Credit Union
to maintain the required balance. Settlement to Credit Unions processing on
BASE2000. Credit Unions receiving
3.6 Certegy Services under Schedules "K" or "L" shall each establish a
settlement account in the Credit Union's name to enable VISA and/or MasterCard
to settle transactions, dues, fees, assessments and other amounts directly to
the Credit Union settlement account ("Direct Settlement Account"). The Credit
Union shall maintain sufficient balances in the Direct Settlement Account to
enable such VISA and/or MasterCard settlements. Neither CSCU nor Certegy shall
bear any responsibility or liability for funding of the Credit Union's Direct
Settlement Account.
3.7 Payment Account. Certegy shall maintain on behalf of CSCU one or more demand
deposit accounts for the purpose of deposit of cardholder and other payments
made to CSCU and the Credit Unions (the "Payment Accounts"). Certegy shall have
the right to deposit cardholder and other payments into the Payment Accounts and
to transfer funds from the Payment Accounts to the PCA, the Settlement Account
or the Direct Settlement Account, as appropriate.
3.8 Records. Certegy shall maintain complete records pertaining to the PCA and
the Payment Accounts, including records pertaining to reconciliation of the PCA,
daily interchange fees, and daily settlements, and pertaining to Certegy's
transfers to and from the Settlement Accounts.
Quality Control Standards. 4.
4.1 Certegy shall maintain the quality control standards set forth in Exhibit
"C", which is attached to and made a part of this Amendment (the "Standards").
At the end of each calendar quarter, Certegy and CSCU shall review Certegy's
quarterly performance regarding the Standards. To facilitate that quarterly
review, Certegy shall provide CSCU with monthly reports on which that review can
be based. Those Standards on Exhibit C, which are deemed to be "Material
Standards", are identified as such on Exhibit "C". CSCU and Certegy shall each
measure Credit Union satisfaction through their independently conducted surveys.
If CSCU notifies Certegy that CSCU's satisfaction survey results for any period
vary materially from the results of Certegy's satisfaction survey for the same
period, the parties shall compare their
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surveys to confirm that the survey questions seek the same information, the
surveys are addressed to the same target audience, and the surveys use the same
response scale. If matching these factors corrects the variance, future results
should match. When these factors are the same and the results still have a
statistically significant variance and the issue causing the variance can be
identified, CSCU and Certegy will mutually agree on corrective action and
implement the corrective action plan within 30 days. If Certegy and CSCU cannot
identify or agree upon the cause for the variance, the parties will jointly
retain the assistance of an outside statistical survey specialist to assist the
parties' effort to eliminate the variance.
4.2 The failure by Certegy to have met one or more Material Standards or three
or more of the other Standards in any three consecutive months shall be deemed a
"Material Failure". In the event Certegy is implementing a technology or
software enhancement, Certegy may inform CSCU in advance of the Standards it
expects to be negatively affected and the timeframe for the implementation. Such
identified Standards will not be included in determining whether there has been
a Material Failure during the implementation. In the event of a Material
Failure, Certegy shall take those steps necessary to cure that specific Material
Failure within the 1-month period following notice by CSCU to Certegy of the
Material Failure (the "Cure Period"). Except as provided for in subsection 4.3,
the test period to determine whether such cure has been accomplished shall be
the 1-month period following the Cure Period.
4.3 In addition, during any Cure Period for the Standards identified in Exhibit
"C" as either the "Cardholder Satisfaction Rating Index Goal" or the "Credit
Union Satisfaction Rating Index Goal", for satisfaction surveys conducted by
Certegy, (collectively, the "Satisfaction Rating Index Goals"), Certegy will pay
CSCU (i) $20,000 for any month in which there is a Material Failure of one
Satisfaction Rating Index Goal, and (ii) $40,000 for any month in which there is
a Material Failure of both Satisfaction Rating Index Goals. Notwithstanding
anything in this Agreement to the contrary, if Certegy is unable to cure the
applicable Satisfaction Rating Index Goal(s) after a 90-day period following the
beginning of the Cure Period, CSCU may terminate this Agreement.
4.4 Unless otherwise expressly agreed to in writing by the parties, all results
of all Standards shall be deemed "Confidential Information" of Certegy, subject
to section 8 of this Agreement.
4.5 Certegy will invest in improvements to its debit/ATM processing capability
during the Renewal Term. Certegy's goals will be:
(1) to establish effective, efficient and dependable connectivity to enable
authorizations and settlements over all major debit/ATM networks;
(2) to provide competitive solutions for CSCU Credit Union's debit and ATM card
processing needs;
(3) to have Certegy's platform connect directly to VISA for signature debit
authorizations;
(4) to settle signature debit transactions directly with VISA;
(5) to enable single point settlement;
(6) to provide a graphical user interface;
(7) to enable seven-day processing, and
(8) to enable unique authorization parameters by BIN. Backup, Disaster Recovery,
Force Majeure and System Integrity. 5.
5.1 Backup. Certegy shall provide for backup data processing in the event
Certegy's primary data processing unit becomes inoperable. Certegy will provide
off-premises secured
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storage of data and program files as required by VISA and MasterCard and will
have available redundant sources of electrical power.
5.2 Disaster Recovery. In the event Certegy is prevented from performing its
obligations under this Agreement through no fault of its own, Certegy shall,
through its own facilities, suppliers of computer equipment and/or other
processors, make best efforts to assist Credit Union to obtain replacement
processing services for the Services, as promptly as is reasonably possible.
Credit Union authorizes Certegy to provide cardholder and other Confidential
Information to those vendors it contracts with to provide disaster recovery and
other back-up processing services to Certegy, in order to test and prepare for
disaster recovery as well as to perform Services in the event of a threatened or
actual disaster. Certegy shall require each vendor that is to receive
Confidential Information to sign a confidentiality agreement binding such vendor
to protect and not improperly disclose Confidential Information. Certegy has
maintained and shall continue to maintain arrangements with vendors to provide
backup processing capability and Certegy shall test the functionality and
viability of such backup processing capability twice each year.
5.3 Force Majeure. If Certegy is prevented from performing its obligations under
this Agreement due to causes beyond its control, including without limitation
strikes, riots, earthquakes, epidemics, wars, acts of terrorists, fires, power
failures, the failure or closure of a Credit Union, machine breakdowns,
computer-associated equipment outages, or any other catastrophe rendering its
data processing center wholly or partially inoperable, Certegy shall not be
liable for any loss or damage to Credit Union, Agent Credit Unions or Customers.
5.4 Annual Financial and System Review. Each year, Certegy shall provide to CSCU
a copy of the most recent annual report of its publicly held parent corporation
and a copy of the most recent third party auditors' review and report on the
design and compliance test of Certegy's card processing system (SAS 70). Upon
Credit Union's written request, Certegy shall provide these documents to Credit
Union.
6. Merchant Fees. If a Credit Union utilizes the Merchant Services provided by
Certegy, the fees referenced in Schedule "C" attached to and made a part of this
Amendment, shall apply to those services, and the following terms are added to
the Agreement:
6.1 Right to Refuse Merchants. Credit Union shall not enroll merchants for
participation in the VISA and/or MasterCard system through CSCU or Certegy, if
those merchants are within the categories of merchants designated by CSCU and/or
Certegy from time to time as "high-risk merchants". CSCU and/or Certegy shall
have the right to refuse to enroll, and may terminate the enrollment of, any
merchant if it determines, in its sole and absolute discretion, that failure to
do so would create excessive risk for CSCU and/or Certegy. Right to Refuse
Transactions. In the event that either CSCU or Certegy 6.2 determine, in their
sole discretion, that the risks related to the credit card sales transactions
("Transactions") introduced by any merchant enrolled by Credit Union are
excessive, then CSCU or Certegy may refuse to accept and process those
Transactions. CSCU or Certegy shall
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promptly notify Credit Union of its refusal to accept and process Transactions
from any such merchant.
6.3 Card Association Requirements. Credit Union shall comply with all VISA
and/or MasterCard requirements for enrolling new merchants including, but not
limited to, the performance of a credit check and/or other financial background
investigation; a physical inspection of the merchant's place of business; and an
investigation to determine whether the merchant previously has been expelled
from the VISA and/or MasterCard systems by another Credit Union for fraud or
suspected fraud. Credit Union shall examine the sales drafts contained in sealed
merchant deposits before forwarding such deposits to Certegy in order to detect
possible fraud and other irregularities.
6.4 Indemnification. Notwithstanding any other provision of this Agreement,
Credit Union shall indemnify and hold harmless Certegy and CSCU, and their
respective stockholders, officers, directors, employees, agents, affiliates,
subsidiaries, successors and assigns, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgements, suits, costs,
expenses, including reasonable attorney fees including attorneys' fees in
appellate and bankruptcy proceedings, or disbursements of any kind or nature
whatsoever, which may be suffered by, imposed on, incurred by, or asserted
against Certegy, CSCU or the other indemnified parties in any way relating to,
or arising out of any merchant deposit of VISA or MasterCard credit card or
debit card sales transactions, drafts which arise from transactions from
merchants enrolled by Credit Union or an agent institution of Credit Union for
the merchant services provided pursuant to the Service Agreement, ("Sales
Transactions"), including counterfeit or fraudulent transactions, or any
chargebacks of such Sales Transactions (collectively, the "Losses"). Certegy
shall be a third-party beneficiary of this paragraph, and if Certegy brings any
lawsuit, arbitration or other action against Credit Union to enforce the
provisions of this paragraph, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs in connection with the action including
attorneys' fees and costs in appellate and bankruptcy proceedings.
6.5 Right to Utilize Certain Funds. CSCU and/or Certegy shall have the right to
utilize any amounts payable to Credit Union as a result of Transactions in the
MasterCard and/or VISA systems in payment of, or to reimburse CSCU or Certegy
for, chargebacks or any other amounts payable by, or any other losses resulting
from the activities of, any merchants enrolled by Credit Union or an agent
institution of Credit Union. Credit Union acknowledges that Certegy is a third
party beneficiary of all rights granted to CSCU by Credit Union under this
Financial Services Agreement, and that Certegy can exercise all rights given to
it pursuant to this paragraph to, among other things, apply incoming amounts to
offset or recover amounts due on fraudulent Transactions introduced into the
MasterCard and/or VISA systems by merchants enrolled by Credit Union or an agent
institution of Credit Union. Credit Union specifically agrees that the rights of
CSCU and Certegy and the obligations of Credit Union hereunder shall survive any
termination of this Agreement.
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Inspection of Records. 7.
7.1 Inspection by CSCU. On reasonable notice, during normal business hours and
on presentation of written authorization from CSCU or from a Credit Union, as
the case may be, CSCU representatives shall have the right, at CSCU's expense,
to inspect and audit information and records in Certegy" possession pertaining
to this Agreement or the Credit Union providing the authorization; provided that
any such notice shall specify the scope of the inspection or audit and Certegy
shall have the right to receive and comment on any report prepared by any
external representative engaged by CSCU in connection with any such inspection
or audit, prior to its dissemination to the Credit Unions or any other parties.
7.2 Inspection by Credit Union. On reasonable notice, during normal business
hours and on presentation of written authorization from a Credit Union, the
representatives of the Credit Union or the designated agent of the Credit Union
shall have the right, at the Credit Union's expense, to inspect and audit
information and records pertaining to that Credit Union; provided that any such
notice shall specify the scope of the inspection or audit and Certegy shall have
the right to receive and comment on any report prepared by any external
representative engaged by the Credit Union in connection with any such
inspection or audit, prior to its dissemination to the Credit Unions or any
other parties. Government Inspection. Certegy shall permit those governmental
agencies that 7.3 regulate and examine CSCU and the Credit Unions to examine
Certegy and its books and records to the same extent as if the Services were
being performed by CSCU or the Credit Unions on their own premises.
8. Confidentiality. Each of the parties to this Agreement shall hold all
information provided to it by the other party, or through its relationship with
the other party, as secret and confidential, whether in the form of reports,
plans, customer lists, data, documents, software and related products and
services, (including, without limitation, CSCU's proprietary software, the
Virtual Card Consultant), drawings, writings, samples, know-how, marketing,
strategies, business operations and business systems, and other proprietary
material ("Confidential Information"). Non-public financial information that is
personally identifiable to a customer or member of Credit Union (referenced in
the Xxxxx-Xxxxx-Xxxxxx Act of 1999 as "Non-public Personal Information" or
"NPI") shall be treated by Certegy as Confidential Information whether it is
received directly from Credit Union, through VISA or MasterCard or from another
third party. Certegy shall only provide NPI to CSCU at the request of Credit
Union. Confidential Information shall remain the property of the party from or
through whom it was provided. The parties shall use Confidential Information,
including NPI, only to perform under this Agreement and in the case of CSCU its
Membership Agreement with Credit Union. Each party shall use the same degree of
care to protect the other party's and Credit Union's Confidential Information as
it uses to safeguard its own and each party shall implement and maintain
procedural, physical and electronic safeguards to prevent the compromise or
unauthorized disclosure of Confidential Information. For purposes of this
section, other than in the case of NPI, Confidential Information shall not
include information that becomes available to the public through no wrongful
action of the receiving party, is already in the possession of the receiving
party and not subject to an existing agreement of confidentiality between the
parties, is received from a third
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party without restriction and without breach of this Agreement, is independently
developed by the receiving party, or is disclosed pursuant to a request from a
government agency to the extent required by law. This Agreement shall in no way
be construed to grant any right, license, or authorization to either party to
use Confidential Information except as permitted in this Agreement. Each party
shall restrict access to Confidential Information to those employees and persons
in the receiving party's organization with a need to know such Confidential
Information in order to perform its obligations under this Agreement. Such
employees and persons shall be under the same obligations to hold secret and
confidential such Confidential Information. To the extent Certegy retains third
party vendors to assist it in performing its duties under this agreement, it
shall first require such vendors similarly to protect and restrict the use of
Confidential Information. The obligations of the parties hereunder shall survive
the termination of this Agreement.
Transmissions. 9.
9.1 CSCU and Credit Union Responsibility. CSCU and/or the Credit Unions, as the
case may be, shall be responsible for transmission at their expense, and shall
bear the risk of loss and damage resulting from the transmission to the data
processing center of Certegy of information and data (collectively, "Data"). In
the case of physical transmission of Data to Certegy, the responsibility for
loss and damage shall remain with CSCU and/or the Credit Unions to the point
where and until Certegy receives delivery of the Data through the U.S. mail or
by courier, and in the case of electronic transmission, until receipt is
confirmed by Certegy, at which time the risk of loss shall shift to Certegy.
9.2 Certegy Responsibility. Certegy shall bear the risk of loss and damage
resulting from the transmission of Data from the data processing center of
Certegy. In the case of physical transmission of Data from Certegy to CSCU or a
Credit Union, the responsibility for loss and damage shall remain with Certegy
to the point where and until CSCU or the Credit Union, as the case may be,
receives delivery of the Data through the U.S. mail or by courier, and in the
case of electronic transmission, until receipt is confirmed by CSCU or the
Credit Union, at which time the risk of loss shall shift to CSCU or the Credit
Union, as the case may be. Certegy's responsibility for the safekeeping and
security of plastic credit cards or blank plastic cards commences upon the
delivery of such plastics to Certegy and terminates upon delivery of plastics by
Certegy to the mail, courier or freight service designated by CSCU or the Credit
Union.
Compliance with Laws and regulations. 10.
10.1 Certegy's Compliance Obligations. Except as provided in items (i) and (ii)
of section 10.2 below, Certegy shall be responsible for providing the Services
in a manner that complies with all Federal laws, rules, and regulations as
amended or enacted from time to time applicable to the Services, including
without limitation the Truth-In-Lending and Fair Credit Billing Acts, and all
rules and regulations promulgated under those laws. 10.2 Credit Union Compliance
Obligations. Each Credit Union shall be responsible for the following:
11
(i) preparing its credit application forms, solicitations, and notices of credit
approval and denial as well as compliance with all Federal laws, rules, and
regulations relating to those documents, including without limitation, where
applicable to those documents, the Federal Consumer Credit Protection Act
including Truth-In-Lending, the Equal Credit Opportunity act, the Electronic
Fund Transfer Act, the Xxxxx-Xxxxx-Xxxxxx Act of 1999, the U.S.A.
PATRIOT
Act, and any regulations implementing such acts;
(ii) if the Credit Union elects to prepare any other documentation or text for
use with its cardholder accounts, Credit Union shall comply with all applicable
laws, rules, and regulations applicable to such documentation or text;
(iii) complying with all state and municipal laws, rules, and regulations as
amended or enacted from time to time applicable to all documentation sent to the
Credit Union's cardholders; and
(iv) except as provided in section 10.1 above, complying with all Federal and
state laws, rules, and regulations applicable to the operation of its card
program, including without limitation state and Federal usury laws, Fair Credit
Reporting, Equal Credit Opportunity and Electronic Funds Transfer Acts and all
rules and regulations promulgated under these laws relating to the operation of
its card program, and all VISA, MasterCard and other card association rules and
regulations applicable to card issuing institutions in connection with the
operation of its card program.
10.3 Modifications to Card Program. Each Credit Union shall notify Certegy by
certified mail if it desires to amend, subject to applicable law and regulation,
any aspect of its card program which may impact Certegy's provision of the
Services to that Credit Union, including, without limitation,
(i) the annual percentage rate it charges,
(ii) the percent and dollar amount of minimum payment,
(iii) its method of finance charge calculation, and/or (iv) the annual fees of
that Credit Union's existing card program.
10.4 Debit Card Disclosures. Notwithstanding anything to the contrary in this
section 10, each Credit Union shall be solely responsible for providing any and
all required debit card disclosures and forms to its customers. Each Credit
Union shall be solely responsible for compliance with all laws, rules, and
regulations applicable to all aspects of the operations of its debit card
programs, regardless of whether that Credit Union uses any forms or other
materials supplied by Certegy.
11. Certegy Procedures. Certegy shall, from time to time, hold training sessions
at its facility and such other places as it shall designate, for new Credit
Union employees or Credit Union employees needing additional training. Each
Credit Union shall be responsible for sending its employees to Certegy training
sessions as necessary for them to be fully trained to perform their
responsibilities in connection with utilization of the Services. For each area
of responsibility to be performed by one or more employees of a Credit Union,
that Credit Union shall send at least one employee who will be performing that
responsibility to training to be trained in that responsibility. Each Credit
Union shall have full responsibility for ensuring that its employees and other
representatives comply with all procedures set forth in Certegy" training
12
manual or other procedural manuals and literature provided to the Credit Union
at training sessions or otherwise from time to time, including without
limitation those pertaining to verification of the accuracy of account
confirmation cards sent by Certegy to the Credit Union and monitoring of
combined warning bulletins (collectively, the "Procedures") and shall indemnify,
defend, and hold harmless Certegy, its officers and directors, and its
successors and assigns from and against any and all liabilities, claims,
damages, losses or expenses, including reasonable attorneys' fees (collectively
"Claims") that result from, arise out of, or in connection with the failure of
an employee or other representative of that Credit Union to follow the
Procedures.
12. Responsibility for Counterfeit and Fraudulent Transactions. Each Credit
Union assumes financial responsibility for all VISA and MasterCard debit and
credit card transactions charged to its cardholder accounts, including but not
limited to counterfeit transactions and fraudulent transactions, and shall
indemnify and hold harmless CSCU, Certegy, their officers and directors, and
their successors and assigns against any and all Claims that result from, arise
out of, or in connection with such transactions, unless such Claims are caused
by Certegy's negligence, willful misconduct, or failure to perform in accordance
with the terms of this Agreement.
Mediation; Arbitration. 13.
13.1 The parties shall submit any dispute arising under section 1.2 to mediation
as administered by, and subject to the rules of, the Computer Law Committee of
The Florida Bar or such other mediation group mutually agreed to by the parties,
to attempt to resolve the dispute. Each party shall be responsible for its own
costs and attorneys' fees, if any, incurred during the mediation.
13.2 If mediation under section 13.1 does not result in a full settlement of the
dispute, then any matter described in section 1.2 that is disputed shall be
submitted to arbitration and decided in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, in Tampa, Florida,
and the decision rendered by the arbitrators in connection with any such matter
shall be binding. In connection with any arbitration pursuant to this section,
the arbitrators shall have the discretion to determine whether either party is
the prevailing party and to allocate all or more than half of the responsibility
for the costs of the arbitration, plus responsibility for all or a portion of
the prevailing party's attorneys' fees, to the non-prevailing party. If no such
allocation is made, each party shall be responsible for half the costs of the
arbitration and that party's entire attorneys fees.
13.3 If either party initiates an action or proceeding at law or in equity that
should have been submitted for resolution under section(s) 13.1 or 13.2, then
the other party shall be entitled to recover from the party who initiated that
action or proceeding, its attorneys' fees and costs incurred in connection with
a motion to dismiss the action or proceeding on the grounds that it should have
been submitted for resolution under section(s) 13.1 or 13.2.
13
Termination. 14.
14.1 Events. This Agreement shall terminate on December 31, 2009, or on written
notice given from one party to the other after the occurrence of any one of the
following:
(i) the termination of Certegy's right or ability to perform the Services for
VISA or MasterCard accounts;
(ii) the failure of CSCU to obtain and maintain those BIN's and ICA's necessary
in order for the Credit Unions to use and share BIN's and ICA's maintained by
CSCU;
(iii) the discontinuance by either party of its performance of this Agreement
because of an order of an appropriate state or Federal court or regulatory body
to so discontinue its participation;
(iv) any affirmative act of insolvency by VISA or MasterCard or upon the filing
by VISA or MasterCard of any action under any reorganization, insolvency, or
Moratorium law, or upon the appointment of any receiver, trustee, or conservator
to take possession of the properties of VISA or MasterCard;
(v) subject to item (vi) below, the failure of either party to cure a material
breach of its obligations under this Agreement within thirty (30) days following
written notice of the breach from the other party; provided that if the breach
cannot reasonably be cured within thirty (30) days, the non-breaching party
shall not have the right to terminate this Agreement so long as the breaching
party promptly commences to cure the breach within thirty (30) days following
the notice of the breach and accomplishes the cure within ninety (90) days; or
the failure of Certegy to cure a Material Failure in accordance with section 4.
(vi)
14.2 Cooperation Following Termination. If CSCU gives Certegy written notice of
its decision to switch card processors following termination of this Agreement
for any reason, Certegy shall cooperate reasonably with CSCU to effect an
orderly transition of CSCU's operations to the new processor designated by CSCU.
In connection with the conversion of a Credit Union to another card processor,
either in connection with CSCU's decision to switch processors or otherwise,
Certegy shall (i) cooperate reasonably with the Credit Union to effect an
orderly conversion, which may include, but shall not necessarily be limited to,
performing those tasks set forth on Exhibit "D" and (ii) at the request of the
Credit Union, continue providing the Services to the Credit Union following
termination of its Credit Union Service Agreement until the conversion is
completed; provided that Certegy shall not be obligated to provide the Services
to that Credit Union beyond six (6) months following the effective date of such
termination.
14.3 Direct Processing Agreement. Following the resignation of each and every
Credit Union from CSCU, either during or following the term of this Agreement,
Certegy and that Credit Union shall have the right to contract with each other
directly, or indirectly through another association, for processing services.
Certegy shall not solicit any of the Credit Unions to
14
resign from CSCU and enter into a direct contract with Certegy for card
processing to commence prior to the termination of this Agreement or any
extension or renewal of this Agreement.
15. Services Provided by CSCU. CSCU shall be responsible for and assume all
liability for services it provides to the Credit Unions and which are not
required to be performed by Certegy under this Agreement.
16. Notices. Except as otherwise provided in this Agreement, any notice, demand,
or other communication required or desired to be given under this Agreement by
Certegy or CSCU or under a Credit Union Service agreement by Certegy or the
Credit Union shall be in writing and shall be deemed validly given forty-eight
(48) hours after its deposit in the first class United States mail, certified or
registered, postage prepaid, return receipt requested, or if given by other
means, upon receipt of delivery. A communication to Certegy or CSCU shall be
addressed or delivered to the appropriate party at its address set forth below:
To Certegy: Certegy Card Services, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: President
with a copy to the Certegy law department in St. Petersburg
To CSCU: Card Services for Credit Unions, Inc.
00000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: President
A communication to a Credit Union shall be addressed or delivered to the address
shown on that Credit Union's Credit Union Service agreement. Either party or a
Credit Union may change its address for the receipt of notices, demands, or
other communications by giving notice of the change in accordance with this
section.
17. Indemnification. Certegy shall indemnify, defend and hold harmless CSCU,
CSCU employees, its officers and directors and its successors and assigns from
and against any and all Claims that result from, arise out of, or in connection
with Certegy's failure to perform in accordance with, or any breach by Certegy
of, its obligations under this Agreement or any Credit Union Service Agreement,
or any administrative or operating procedures or guidelines agreed to in writing
by both Certegy and CSCU from time to time. Certegy and each Credit Union shall
indemnify, defend and hold harmless the other party, the other party's officers
and directors, and the other party's successors and assigns from and against any
and all Claims that result from, arise out of, or in connection with the
indemnifying party's failure to perform in accordance with, or any breach by the
indemnifying party of, its obligations under this Agreement or the Credit Union
Service Agreement. In addition, Credit Union shall indemnify and hold harmless
Certegy, its officers, directors, successors, and assigns from and against any
and all Claims resulting from, arising out of, or in connection with the
performance, or nonperformance, of any vendor as contemplated by section 1.5 of
this Agreement.
15
18. Limitations on Damages. In any action by either party against the other, by
a Credit Union or Certegy against the other, or by CSCU or a Credit Union
against the other, neither party shall be liable to the other for consequential,
special, or exemplary damages; provided that in any action or actions by CSCU
and one or more Credit Unions against Certegy arising out of the same general
set of circumstances, Certegy may be liable for consequential damages not to
exceed Fifty Thousand Dollars ($50,000) to CSCU or any one Credit Union and Two
Hundred Fifty Thousand Dollars ($250,000) in the aggregate.
MasterCard/Visa Requirements. 19.
19.1 Use of Trademarks.
19.1.1 Certegy shall not use any of the MasterCard trademarks and/or Visa Card
Program Marks (collectively, the "Marks") on any material in connection with the
Service unless CSCU and/or its member, as the case may be, are prominently
identified by name and city adjacent to such Marks. All such material may not
identify Certegy unless Certegy is prominently identified as an agent or
representative of CSCU and/or its members, as the case may be.
19.1.2 Certegy shall have no authority to permit use of the Marks by any of
Certegy's agents.
19.2 Solicitation Material. Any solicitation material used by Certegy shall
disclose that the subsequent cardholder and/or merchant agreements are between
CSCU's member and the individual cardholder and/or merchant.
19.3 MasterCard Member Service Provider Requirements.
19.3.1 Certegy shall fully comply with all applicable MasterCard Bylaws and
Rules and any operational regulations, procedures or guidelines established from
time to time by MasterCard (collectively, the "Rules");
19.3.2 Certegy has registered with MasterCard as a Member Service Provider
("MSP") and has submitted a signed MSP Agreement to MasterCard;
19.3.3 Certegy shall lindemnify and hold harmless MasterCard, CSCU and its
members for any failure by Certegy to comply with the Rules, as amended from
time to time;
19.3.4 Certegy shall disclose to CSCU the identity and location of all of its
sales locations and any other MSP or independent party performing part or all of
the Services;
19.3.5 If there is any inconsistency between any provisions of the Agreement and
the Rules, the Rules in each instance shall apply.
16
19.3.6 The Agreement is terminable by CSCU in the event of a material breach by
Certegy of a Rule applicable to the Services as provided for in section 14.1(v)
of this Agreement.
19.4 Visa and MasterCard Risk Management And Reporting Requirements. Certegy
shall report to Visa and MasterCard that information which Visa and MasterCard
reasonably require from CSCU regarding the risk management reporting
requirements of Visa and MasterCard that pertain to the individual Credit
Unions. In the event that Visa and MasterCard materially modify what information
they require, Certegy shall also provide that additional information; provided,
however, if providing that additional information will require additional
programming or otherwise cause Certegy to incur significant costs, Certegy's
obligations to provide that additional information is subject to the mutual
written Agreement of the parties.
20. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the Sate of Florida.
21. Attorneys' Fees. If either party institutes an action or proceeding at law
or in equity, to enforce any provision of this Agreement, including an action
for declaratory relief or for damages, or otherwise in connection with this
Agreement, the prevailing party shall be entitled to recover from the losing
party its reasonable attorneys' fees and costs in connection with the action or
proceeding, including attorneys' fees and costs in appellate and bankruptcy
proceedings. Similarly, the prevailing party in an action or proceeding
involving Certegy and a Credit Union in connection with a credit Union Service
Agreement or otherwise in connection with the Services shall be entitled to its
reasonable attorneys' fees and costs.
22. Exhibits and Schedules. All Xxxxxxxx (X, X-0, X-0, C and D) and Schedules
(A, B, C, E, G, J, K, and L) attached to this Agreement are incorporated into
and made a part of this Agreement by this reference.
23. This Agreement. This Agreement, together with the attached Schedules and
Exhibits, supercedes all prior agreements, understandings, or representations of
the parties on this subject matter.
24. Severability. If there is any conflict between a provision of this Agreement
and any present or future law or regulation, the provision of this Agreement
that is affected shall be curtailed only to the extent necessary to bring it
within the requirements of the law or regulation, and the remaining provisions
shall remain in effect.
25. Non-Waiver. No waiver by a party of a breach of any provision of this
Agreement or of a Credit Union Service Agreement shall constitute a waiver of
any prior or subsequent breach of the same or any other provision of this
Agreement or any Credit Union Service Agreement.
26. Amendments. This Agreement shall not be amended except in writing signed by
both parties. The parties shall cooperate in promptly delivering a copy of any
amendments to the Credit Unions. Such delivery may be accomplished by either
delivering a hard copy of any amendment to the Credit Unions or providing notice
of any amendment in a bulletin delivered to
17
the affected Credit Unions and making actual copies of any amendment available
in a printable format on a website that is available to affected Credit Unions
and identified in the bulletin.
27. Authority. Each party to this Agreement, and each Credit Union signing a
Credit Union Service Agreement, represents and warrants that it has the full
right, power, legal capacity, and authority to enter into and perform its
obligations under this Agreement or the Credit Union Service agreement, as the
case may be, and that those obligations shall be binding without approval of any
other person or entity. Each person signing this Agreement on behalf of a party
and each person signing a Credit Union Service Agreement on behalf of a Credit
Union represents and warrants that he has the full right, power legal capacity,
and authority to sign that agreement on behalf of that party or Credit Union.
28. Quality Control Standards. In order to maintain quality service, telephone
communications with each Credit Union may be monitored and/or recorded without
any further notice or disclosure.
29. Certegy's systems shall remain capable of processing dates using four digit
fields for the year throughout the term of this Agreement.
30. Deconversion Fees. In addition to all other amounts owed Certegy, in the
event a Credit Union transfers all or a portion of its card base to another
processor, to an acquirer of Credit Union's accounts or to Credit Union's
internal systems for any reason whatsoever, Credit Union shall pay Certegy a
Deconversion Fee equal to $1.00 per account transferred, with a minimum total
charge of $5,000.00 and a maximum total charge of $50,000.00, for Certegy's
performance of the services required to effectuate the transfer of the accounts
from Certegy's processing platform.
31. Protection Against Employee Dishonesty. Certegy shall maintain Commercial
Crime, including Employee Dishonesty, insurance coverage in the amount of at
least five million dollars ($5,000,000.00) during the Term of this Agreement and
during any subsequent renewal terms to protect against losses by CSCU or Credit
Unions resulting from dishonesty of any Certegy Employee. Certegy shall
periodically provide proof of such coverage to CSCU.
CARD SERVICES FOR
CERTEGY CARD SERVICES, INC. CREDIT UNIONS, INC.,
a Florida corporation a Florida corporation
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxxx XxXxxxx
--------------------------------- ------------------------------------
Name Xxx Xxxxxxx Name Xxxxxxx XxXxxxx
Title Chief Executive Officer Title Chairman
18
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT
EXHIBIT B
CERTEGY CREDIT UNION SERVICE AGREEMENT
(CERTEGY LOGO)
CERTEGY CREDIT UNION SERVICE AGREEMENT
This Credit Union Service Agreement (this "Agreement") is made on
____________________, 20__ by and between Certegy Card Services, Inc., a Florida
corporation ("Certegy"), and ___________________________________________________
__________________________________________, a __________________________________
("Credit Union"). This Agreement sets forth the terms pursuant to which Certegy
will provide cardholder and/or merchant deposit services to Credit Union in
connection with Credit Union's Visa and/or MasterCard programs, which processing
services shall commence on the date mutually agreed to by the parties (the
"Processing Commencement Date").
NOW. THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. The Services. By this Agreement, Credit Union engages Certegy, and
Certegy agrees, to provide cardholder and/or merchant deposit services to Credit
Union, commencing on the Processing Commencement Date, in accordance with the
terms of this Agreement and the terms of that certain Restated CSCU Card
Processing Service Agreement, dated February 16, 1994, by and between Certegy
and Card Services for Credit Unions, Inc. ("CSCU"), as amended from time to
time. A copy of the Restated CSCU Service Agreement, as amended, is attached as
Exhibit "A" (the "CSCU Service Agreement") and is incorporated into this
Agreement by this reference. Credit Union acknowledges that it has read and
understands the terms of the CSCU Service Agreement and both parties agree to be
bound by all the terms contained in the CSCU Service Agreement as if both
parties were signatories to that Agreement.
2. Representation of CSCU Membership. Credit Union represents and warrants
that it is a member of CSCU.
3. Operating Rules and Procedures. Credit Union shall comply with and abide
by those reasonable operating rules and procedures promulgated from time to time
by CSCU, Certegy, and Visa and/or MasterCard.
4. *[This Section has been omitted in its entirety and filed separately
with the Securities and Exchange Commission as part of an application for
confidential treatment pursuant to the Securities Exchange Act of 1934, as
amended.]
5. *[This Section has been omitted in its entirety and filed separately
with the Securities and Exchange Commission as part of an application for
confidential treatment pursuant to the Securities Exchange Act of 1934, as
amended.]
6. Entire Agreement. This Agreement, together with Exhibit "A" attached,
constitutes the entire understanding of the parties with respect to the subject
matter of this Agreement.
7. Amendments. This Agreement shall not be amended except in writing signed
by both parties and unless CSCU shall consent in writing to such amendment;
provided, however, that any amendments to the CSCU Service Agreement made in
accordance with the CSCU Service Agreement shall be effective with respect to
Certegy and Credit Union concurrently with the effectiveness of that amendment.
Certegy and CSCU have agreed to promptly deliver to Credit Union a copy of any
amendments to the CSCU Service Agreement.
8. Notices. Any notices desired to be given in connection with this
Agreement shall be given in the manner vided for in the CSCU Service Agreement.
(CERTEGY LOGO)
9. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
10. Attorney's Fees. If either party institutes an action or proceeding at
law or in equity to enforce any provision of this Agreement or otherwise in
connection with this Agreement, the prevailing party shall be entitled to
recover its reasonable attorney's fees and costs.
11. Beneficiary. CSCU shall be a third-party beneficiary to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CERTEGY CARD SERVICES, INC. ------------------------------------
a Florida corporation
------------------------------------
By:
---------------------------------- By: --------------------------------
-------------------------------------- ------------------------------------
Name and Title Name and Title
00000 Xxxxxxxxx Xxxxxxxxx ------------------------------------
Xx. Xxxxxxxxxx, XX 00000 Address
727/556-9000
------------------------------------
("Certegy") City, State and Zip
------------------------------------
Area Code and Phone No.
("Credit Union")
(CERTEGY LOGO)
2
(CERTEGY LOGO)
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT
EXHIBIT B-1
CERTEGY CREDIT UNION SERVICE AGREEMENT
CERTEGY CREDIT UNION SERVICE AGREEMENT
This Credit Union Service Agreement ("Agreement") is made as of ________,
20___ (the "Effective Date") by and between Certegy Card Services, Inc., a
Florida corporation, f/k/a Equifax Card Services, Inc., ("Certegy"), and
__________________ Credit Union ("Credit Union"). This Agreement sets forth the
terms pursuant to which Certegy will provide processing services to Credit Union
for its Visa and/or MasterCard programs, and supercedes and replaces the prior
agreements between the parties.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. Services. Credit Union engages Certegy to provide the card processing
services described in Schedule(s) _____ (the "Schedules") to the Restated CSCU
Card Processing Service Agreement effective January 1, 2004 ("CSCU Agreement")
by and between Certegy and Card Services for Credit Unions, Inc. ("CSCU"), as
restated and amended (the "Services"). Certegy exclusively will provide the
Services for all of Credit Union's __________ card accounts ("Accounts") in
accordance with the terms of the CSCU Agreement as modified by this Agreement.
Credit Union acknowledges that it has received a copy and understands the terms
of the CSCU Agreement and agrees to be bound by its terms. Capitalized terms not
defined in this Agreement shall have the meaning given to them in the CSCU
Agreement, if any.
2. Representation of CSCU Membership. Credit Union represents and warrants that
it is a member of CSCU.
3. Operating Rules and Procedures. Credit Union shall comply with and abide by
those reasonable operating rules and procedures promulgated from time to time by
CSCU, Certegy, Visa and MasterCard.
4. *[This Section has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
5. *[This Section has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
6. Taxes. Credit Union shall be liable for all taxes, except Certegy's income
taxes, that Certegy must collect or pay on products and Services provided under
this Agreement.
7. Amendments. This Agreement shall only be amended by a writing signed by both
parties; provided, however, that any amendments to the CSCU Agreement made in
accordance with the CSCU Agreement shall be effective with respect to Certegy
and Credit Union concurrently with the effectiveness of that amendment. Certegy
and CSCU have agreed to promptly deliver to Credit Union a copy of any
amendments to the CSCU Agreement.
8. Notices. Any notices in connection with this Agreement shall be given in the
manner provided for in the CSCU Agreement.
9. Applicable Law. The laws of the State of Florida shall govern this Agreement.
Venue for any action brought by a party under this agreement shall be in a court
of competent jurisdiction in Pinellas County, Florida.
10. Beneficiary. CSCU shall be a third-party beneficiary to this Agreement.
11. Entire Agreement. This Agreement, together with the Schedules and the CSCU
Agreement, constitutes the entire understanding of the parties with respect to
this subject matter. In the event of a conflict between the provisions of this
Agreement and the CSCU Agreement, the provisions of this Agreement shall govern.
12. Survival. The respective rights and obligations of the parties under this
Agreement that by their nature continue beyond termination or expiration of this
Agreement, including without limitation those contained in section 9 shall
survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
undersigned duly authorized officers.
TYPE CREDIT UNION'S NAME HERE CERTEGY CARD SERVICES, INC.
By: By:
---------------------------------- ---------------------------------
Officer Signature Officer Signature
-------------------------------------- --------------------------------------
Print Name and Title Print Name and Title
-------------------------------------- --------------------------------------
Date Date
Type Number And Street 11601 Roosevelt Blvd
Type City/State/Zip Xx. Xxxxxxxxxx, Xxxxxxx 00000
Type Telephone 000-000-0000
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT
EXHIBIT B-2
CERTEGY CREDIT UNION SERVICE AGREEMENT
CERTEGY CREDIT UNION SERVICE AGREEMENT
This Credit Union Service Agreement ("Agreement") is made as of __________,
200___ (the "Effective Date") by and between Certegy Card Services, Inc., a
Florida corporation, f/k/a Equifax Card Services, Inc., ("Certegy"), and
____________ Credit Union ("Credit Union"). This Agreement sets forth the terms
pursuant to which Certegy will provide processing services to Credit Union for
its Visa and/or MasterCard programs, and supercedes and replaces the prior
agreements between the parties.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. Services. Credit Union engages Certegy to provide the card processing
services described in Schedule(s) _____ (the "Schedules") to the Restated CSCU
Card Processing Service Agreement effective January 1, 2004 ("CSCU Agreement")
by and between Certegy and Card Services for Credit Unions, Inc. ("CSCU"), as
restated and amended (the "Services"). Certegy exclusively will provide the
Services for all of Credit Union's ___________ card accounts ("Accounts") in
accordance with the terms of the CSCU Agreement as modified by this Agreement.
Credit Union acknowledges that it has received a copy and understands the terms
of the CSCU Agreement and agrees to be bound by its terms. Capitalized terms not
defined in this Agreement shall have the meaning given to them in the CSCU
Agreement, if any.
2. Representation of CSCU Membership. Credit Union represents and warrants that
it is a member of CSCU.
3. Operating Rules and Procedures. Credit Union shall comply with and abide by
those reasonable operating rules and procedures promulgated from time to time by
CSCU, Certegy, Visa and/or MasterCard.
4. *[This Section has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
5. Intentionally left blank.
6. Intentionally left blank.
7. Intentionally left blank.
8. *[This Section has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
9. Compliance.
9.1 Sample Forms. As a convenience to Credit Union, Certegy may provide
samples of applicable terms and conditions of card issuance and use, required
Federal Truth-In-Lending disclosures, Regulation E and Z billing error
resolution, disclosures, and other items (collectively, "Sample Forms"). SUCH
SAMPLE FORMS ARE PROVIDED WITH NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY
WHATSOEVER, INCLUDING THEIR COMPLIANCE WITH APPLICABLE LAW OR THEIR
APPROPRIATENESS FOR USE BY CREDIT UNION. Credit Union shall be responsible to
approve all Sample Forms for its own use. All other disclosures and forms,
including card application forms and notices of credit card approval and denial,
shall be prepared by and be the full responsibility of Credit Union. Credit
Union's license to use the Sample Forms terminates upon termination of the
Agreement.
9.2 Credit Union's Responsibilities. Credit Union shall be solely
responsible for compliance with all laws, rules, fees and regulations applicable
to all aspects of the operations of its VISA and/or MasterCard programs,
including all VISA and MasterCard rules, fees and regulations, usury laws, the
Truth-In-Lending Act, Fair Credit Reporting Act, Equal Credit Opportunity Act,
Electronic Funds Transfer Act, all rules and regulations promulgated under such
Acts, and all state laws and regulations. Credit Union acknowledges that it
possesses a copy of the VISA and MasterCard bylaws, rules, and regulations or it
knows that it may receive a copy of each
1
by requesting them in writing from VISA and MasterCard or Certegy and paying the
applicable fees.
9.3 Certegy's Responsibilities. Certegy shall provide its Services in
compliance with all VISA and MasterCard rules and all laws and regulations
applicable to it as a third-party processor.
10. *[This Section has been omitted in its entirety and filed separately with
the Securities and Exchange Commission as part of an application for
confidential treatment pursuant to the Securities Exchange Act of 1934, as
amended.]
11. Confidentiality.
11.1 Confidential Information Defined. All of a party's business and
customer information, whether in the form of reports, plans, customer lists,
data, documents, drawings, writings, samples, know-how, marketing strategies,
business operations and business systems, or other proprietary material, shall
be considered "Confidential Information." In addition, the Schedules shall be
Certegy's Confidential Information. Non-public financial information that is
personally identifiable to a customer or member of Credit Union (referenced in
the Xxxxx-Xxxxx-Xxxxxx Act of 1999 as "Non-public Personal Information" or
"NPI") shall be treated as Confidential Information whether it is received
directly from Credit Union, through VISA or MasterCard or from another third
party. For purposes of this section, Confidential Information shall not include
information that becomes available to the public through no wrongful action of
the receiving party, is already in the possession of the receiving party and not
subject to an existing agreement of confidentiality between the parties, is
received from a third party without restriction and without breach of this
Agreement, is independently developed by the receiving party, or is disclosed
pursuant to a requirement or request from a government agency.
11.2 Protecting Confidential Information. The parties shall not use or
disclose Confidential Information other than as required to perform their
obligations under this Agreement. Each party shall use the same degree of care
to protect the other party's Confidential Information as it uses to safeguard
its own, and shall establish procedural, physical and electronic safeguards to
prevent the compromise or unauthorized disclosure of Confidential Information.
Each party shall restrict access to Confidential Information to those employees
and persons in the receiving party's organization with a need to know such
Confidential Information in order to perform their obligations under this
Agreement. Such employees and persons shall be under the same obligations as the
parties regarding such Confidential Information. To the extent Certegy retains
third party vendors to assist it in performing its duties under this Agreement,
it shall first require such vendor similarly to protect and restrict the use of
Confidential Information. Notwithstanding the foregoing, the parties shall be
free to disclose the tax treatment or tax structure of any transaction under
this Agreement. Confidential Information shall remain the property of the party
from or through whom it was provided. The obligations of the parties hereunder
shall survive the termination of this Agreement.
12. Annual Financial Review. Each year at Credit Union's written request Certegy
shall provide to Credit Union a copy of the most recent annual report of its
publicly held parent corporation and a copy of the most recent third party
auditors' review and report on the design and compliance test of Certegy's card
processing system (SAS 70).
13. Inspections and Audits.
13.1 Inspection by Credit Union. On reasonable notice and on presentation
of written authorization from Credit Union, Credit Union's representatives shall
have the right, during normal business hours and at Credit Union's expense, to
inspect and audit information and records in Certegy's possession pertaining to
this Agreement; provided that: (i) any such notice shall specify the scope of
the inspection or audit; and (ii) Certegy shall have the right to receive and
comment on any report prepared by any external representative engaged by Credit
Union in connection with any such inspection or audit prior to its dissemination
to Credit Union or any other parties.
13.2. Government Inspection. Certegy shall permit those governmental
agencies that regulate and examine Credit Union to examine Certegy and its books
and records to the same extent as if the Services were being performed by Credit
Union on its own premises.
14. *[This Section has been omitted in its entirety and filed separately with
the Securities and Exchange Commission
2
as part of an application for confidential treatment pursuant to the Securities
Exchange Act of 1934, as amended.]
15. Taxes. Credit Union shall be liable for all taxes, except Certegy's income
taxes that Certegy must collect or pay on products and Services provided under
this Agreement.
16. Amendments. This Agreement shall only be amended by a writing signed by both
parties; provided, however, that any amendments to the CSCU Agreement made in
accordance with the CSCU Agreement shall be effective with respect to Certegy
and Credit Union concurrently with the effectiveness of that amendment. Certegy
and CSCU have agreed to promptly deliver to Credit Union a copy of any
amendments to the CSCU Agreement.
17. Notices. Any notices in connection with this Agreement shall be given in the
manner provided for in the CSCU Agreement.
18. Applicable Law. The laws of the State of Florida shall govern this
Agreement. Venue for any action brought by a party under this agreement shall be
in a court of competent jurisdiction in Pinellas County, Florida.
19. Beneficiary. CSCU shall be a third-party beneficiary to this Agreement.
20. Entire Agreement. This Agreement, together with the Schedules and the CSCU
Agreement constitutes the entire understanding of the parties with respect to
this subject matter. In the event of a conflict between the provisions of this
Agreement and the CSCU Agreement, the provisions of this Agreement shall govern.
21. Survival. The respective rights and obligations of the parties under this
Agreement that by their nature continue beyond termination or expiration of this
Agreement, including without limitation those contained in sections 10, 11, 14.3
and 18, shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
undersigned duly authorized officers.
TYPE CREDIT UNION'S NAME HERE CERTEGY CARD SERVICES, INC.
By: By:
--------------------------------- ----------------------------------
Officer Signature Officer Signature
------------------------------------- --------------------------------------
Print Name and Title Print Name and Title
------------------------------------- --------------------------------------
Date Date
Type Number And Street 00000 Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxx/Xxxxx/Xxx Xx. Xxxxxxxxxx, Xxxxxxx 00000
Type Telephone 000-000-0000
3
EXHIBIT C
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
QUALITY CONTROL STANDARDS
[This Exhibit has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
XXXXXXX X
0000 XXXXXXXX XXXX CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
CONVERSION ITEMS
[This Exhibit has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE A
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
FULL SERVICE CREDIT CARD SERVICES
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE B
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
SELF ADMINISTERED CREDIT CARD PROGRAM FEES
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE C
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
PRICE LIST FOR DIRECT PROCESSING MERCHANT SERVICES
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE E
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
IN-HOUSE/PASS THROUGH SERVICES AND FEES FOR DEBIT, ATM AND CREDIT CARDS
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE G
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
COMMERCIAL CARD PROCESSING SERVICES AND FEES
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE J
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
STORED VALUE AND PROCESSING SERVICES AND FEES
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
The Agreement only refers and has one Exhibit J
SCHEDULE K
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
SERVICES AND FEES FOR BASE2000 FULL SERVICE CREDIT CARD PROCESSING
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
SCHEDULE L
2004 RESTATED CSCU CARD PROCESSING SERVICE AGREEMENT BETWEEN
CARD SERVICES FOR CREDIT UNIONS, INC. AND CERTEGY CARD SERVICES, INC.
SERVICES AND FEES FOR SELF ADMINISTERED BASE2000 CREDIT CARD PROGRAMS
[This Schedule has been omitted in its entirety and filed separately with the
Securities and Exchange Commission as part of an application for confidential
treatment pursuant to the Securities Exchange Act of 1934, as amended.]
