FIFTH AMENDMENT TO SERVICE AGREEMENT
Exhibit
10.12
FIFTH AMENDMENT TO SERVICE AGREEMENT
This Fifth Amendment to Service Agreement (this “Amendment”) is made and
entered into as of this 11th day of July, 2005 between First Data Merchant
Services Corporation (“FDMS”) and iPayment, Inc., formerly known as iPayment Holdings, Inc.
(“Customer”).
RECITALS
A. Customer and FDMS have previously entered into a Service Agreement dated as of
July 1, 2002, as amended (the “Service Agreement”).
B. Customer and FDMS now desire to amend the Service Agreement as set forth herein.
AGREEMENT
In consideration of the foregoing, Customer and FDMS hereby agree
as follows:
1. The terms of this Amendment will be effective as of April 1, 2005.
2. Article 2 of the Service Agreement is hereby amended by the addition of the
following:
“2.8 Portfolio Conversion; *
(a) Customer and Customer’s Affiliate, On-Line Data Corp., have Acquired certain Non-FDMS
Portfolios from Card Payment Solutions and First Merchant Bankcard Services, respectively (the
“Existing CPS Portfolio” and the “Existing FMBS Portfolio,” respectively). Customer has elected to
and will convert the Existing CPS Portfolio and the Existing FMBS Portfolio to the FDMS System for
processing pursuant to the terms of and under this Agreement. The parties will expeditiously and
in good faith convert the Existing CPS Portfolio and the Existing FMBS Portfolio to the FDMS
System no later than October 1, 2005. Each party will be responsible for its own costs and
expenses in connection with the conversions.
For the avoidance of doubt, the parties acknowledge and agree that any new Merchant Accounts
sourced and established after the initial conversion of the Existing CPS Portfolio and the
Existing FMBS Portfolio by Card Payment Solutions or On-Line Data Corp. with respect to each such
portfolio, respectively, shall be known as the “New CPS Portfolio” and the “New FMBS Portfolio,”
respectively. Any customization of the FDMS System relating to the Existing CPS Portfolio, the
Existing FMBS Portfolio, the New CPS Portfolio or the New FMBS Portfolio shall remain solely the
property of FDMS, and Customer shall acquire no right, claim, or interest in the FDMS System or
any such customization
| * | Omitted pursuant to a confidential treatment request. The confidential portion has been filed separately with the SEC. |
(b) All Merchant Accounts in the Existing CPS Portfolio, the Existing
FMBS Portfolio, the New CPS Portfolio and the New FMBS Portfolio will be
set up and reside under the following principal bank and system numbers:
On-Line Data Corp.:
System * — principal bank numbers * through *
Card Payment Solutions:
System * — principal bank number *
System * — principal bank number *
System * — principal bank numbers * — *
No other Merchant Accounts of Customer will reside under the above
system and principal bank numbers. Merchant Accounts initially set up by
Customer under any system and principal bank numbers other than those set
forth above may not be moved to the above system and principal bank
numbers.
(c) The prices charged to Customer for the services performed by FDMS
with
respect to Customer’s Existing CPS Portfolio, Existing FMBS Portfolio,
New CPS Portfolio and
New FMBS Portfolio operations shall be the same as for Customer’s other
Merchant Transaction
Card operations with the exception of those prices labeled as “Existing
CPS Portfolio,” “Existing
FMBS Portfolio,” “New CPS Portfolio,” or “New FMBS Portfolio” in Exhibit
“B.”
(d) Upon the conclusion of each month during the Term of this Agreement,
FDMS shall calculate the total monthly Processing Fees paid to FDMS by
Customer hereunder
during such month solely with respect to the Existing CPS Portfolio, the
Existing FMBS Portfolio,
the New CPS Portfolio and the New FMBS Portfolio (“Total Monthly CPS
Portfolio and FMBS
Portfolio Processing Fees”). *
(e) The parties acknowledge and agree that the provisions of Section
3.2(a) will
not be applicable to the Existing CPS Portfolio, the Existing FMBS
Portfolio, the New CPS Portfolio
or the New FMBS Portfolio.”
| * | Omitted pursuant to a confidential treatment request. The confidential portion has been filed separately with the SEC. |
3. Section II of Exhibit “B” to the Service
Agreement, Item 3514-External Authorization Processing, is hereby amended
to read as follows: *
4. Capitalized terms used but not otherwise defined in this
Amendment will have the
meanings set forth in the Service Agreement.
5. In the event of a conflict between this Amendment and the Service
Agreement as it
relates to the subject matter hereof, the terms of this Amendment
will control. Otherwise, all terms
and conditions of the Service Agreement will remain in full force
and effect and likewise apply to
this Amendment.
The parties have executed this Amendment as of the date first above written.
| FIRST DATA MERCHANT SERVICES CORPORATION | ||||
By:
|
/s/ Xxxx Xxxxxx
|
|||
| Name: Xxxx Xxxxxx | ||||
| Title: VP | ||||
| iPAYMENT, INC. | ||||
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
| Name: Xxxxxx Xxxxxxx | ||||
| Title: C.O.O. | ||||
| * | Omitted pursuant to a confidential treatment request. The confidential portion has been filed separately with the SEC. |
