1
EXHIBIT 6.a
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is entered into effective
March 20, 2001 (the "Effective Date") between WILDCARD SYSTEMS, INC., a Florida
corporation ("WildCard") and NBO, INC., a Utah Corporation ("Client").
RECITALS
A. Client desires to offer Transaction Card Programs to its Customers.
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
The following definitions apply to the terms set forth below when used
in this Agreement:
1.1 "AAA" is defined in Section 12.3(a) of this Agreement.
1.2 "Acceptance Period" is defined in Section 3.4 of this Agreement
1.3 "Affiliate" is defined in Section 14.5 of this Agreement.
1.4 "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.
1.5 "Arbitration Demand" is defined in Section 12.3(b) of this
Agreement.
1.6 "Arbitration Panel" is defined in Section 12.3(b) of this Agreement.
1.7 "Basic Qualifications" is defined in Section 12.3(b) of this
Agreement.
1.8 "Breach Notice" is defined in Section 13.2 of this Agreement.
1.9 "Breaching Party" is defined in Section 13.2 of this Agreement.
1.10 "Cardholder" means an individual or Entity which has established a
Cardholder Account with the Issuing Bank through Client.
2
1.11 "Cardholder Account" means an arrangement between a Customer and
the Issuing Bank, through which the Issuing Bank provides the Customer with the
right to use one or more Transaction Cards issued through the Issuing Bank.
1.12 "Cardholder Data" means all personally identifiable information
regarding a Cardholder, the Cardholder Accounts and transactions a Cardholder
makes with a Transaction Card.
1.13 "Charges" are defined in Section 4.1 of this Agreement.
1.14 "Client Content" shall mean 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.
1.15 "Client Data" shall mean any data or information of Client 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.
1.16 "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.
1.17 "Client Obligations" means those obligations of Client as specified
in Section 3 of this Agreement.
1.18 "Confidential Information" is defined in Section 6.1 of this
Agreement.
1.19 "Customer" means an individual or Entity that has a business
relationship with Client.
1.20 "Damages" is defined in Section 9.1 of this Agreement.
1.21 "Dispute" is defined in Section 12.1 of this Agreement.
1.22 "Disputing Party" is defined in Section 12.3(a) of this Agreement.
1.23 "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.
1.24 "Entity" means a corporation, partnership, sole proprietorship,
joint venture, or other form of organization.
1.25 "Excusable Delay" is defined in Section 11.1 of this Agreement.
2
3
1.26 "Funding Payment" shall mean the payment instruction and amount for
the initial load or Reload of a Transaction Card. The total of all Funding
Payments for a given banking day or other mutually agreed upon settlement period
shall be debited by WildCard from a demand deposit account specified by Client
and credited to the Proceeds Account.
1.27 "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.
1.28 "Indemnified Party" is defined in Section 9.4 of this Agreement.
1.29 "Indemnifying Party" is defined in Section 9.4 of this Agreement.
1.30 "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).
1.31 "Issuing Bank" means a member bank of Visa or MasterCard which has
agreed to sponsor the Transaction Card Program.
1.32 "MasterCard" means MasterCard International Incorporated or its
successors or assigns.
1.33 "Non-Breaching Party" is defined in Section 13.2 of this Agreement.
1.34 "Operating Rules" mean the operating rules and regulations adopted
and written by Visa, MasterCard and the Issuing Bank, as the same may from time
to time be amended, modified, or supplemented.
1.35 "Original Term" is defined in the Program Schedule for each
Transaction Card Program.
1.36 "Proceeds Account" shall mean a commercial demand deposit account
maintained by Client at a bank acceptable to the issuing bank where the full
unspent balance available on all cards will reside.
1.37 "Processing Year" is defined in each Program Schedule.
1.38 "Program Schedule" is defined in Section 2.1 of this Agreement.
3
4
1.39 "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.
1.40 "Renewal Term" is defined in each Program Schedule.
1.41 "Scheduled Start-Up Date" is defined in Section 2.3(a) of this
Agreement.
1.42 "Settlement Account" shall mean that bank account established by
WildCard for settlement of Transaction Card transactions with Visa and
MasterCard.
1.43 "Service Change" is defined in Section 2.2 of this Agreement.
1.44 "Services" means the services to be performed by WildCard on behalf
of Client, 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.
1.45 "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.
1.46 "Taxes" is defined in Section 4.3 of this Agreement.
1.47 "Transaction Card" means a host based stored value card, issued
through the Issuing Bank, pursuant to a license from Visa or MasterCard.
1.48 "Transaction Card Program" means a program initiated by Client
pursuant to which the Issuing Bank will provide Transaction Cards to the
Cardholders.
1.49 "Visa" means, individually or collectively, as appropriate, Visa
U.S.A. Inc. or Visa International or either of their successors or assigns.
1.50 "Web Site" shall mean the electronic, publicly viewable computer
screen depictions of the WildCard System, the WildCard Content and the Client
Content.
1.51 "Web Site Specifications" shall mean the technical, aesthetic and
functional requirements for the Web Site, as set forth in the Program Schedule.
1.52 "WildCard Content" shall mean (i) 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.
1.53 "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.
4
5
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 WildCard desires to provide such services to Client. 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 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
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 Visa, MasterCard and the Issuing Bank (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
5
6
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 xxxx, 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 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 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.
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
6
7
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.
3. CLIENT OBLIGATIONS
3.1 COOPERATION. Client will cooperate with WildCard 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.
3.2 EXCLUSIVITY. (a) Subject to the provisions of Section 3.2(c) of this
Agreement, during the term of this Agreement, Client shall ensure that WildCard
shall be the sole provider of the Services to Client.
(b) Except as provided in this Section 3.2(b), during the Term of this
Agreement, WildCard will not provide the Services to: (i) other Entities that
develop and operate gift card programs on behalf of retail shopping malls
located within the United States; and (ii) shopping mall management companies
for use at shopping mall properties which are located within the United States
and which are owned, operated or managed by such shopping mall management
companies. Notwithstanding the previous sentence, WildCard may provide the
Services to: (1) financial institution clients of WildCard (it being understood
by Client that WildCard has no ability to limit the types of card programs or
organizations to which such financial institution clients provide card issuance
and card processing services); (2) Simon Property Group and its affiliates, and
to shopping malls owned, operated or managed by Simon Property Group or one of
its affiliates; (3) ; (4) operators of on-line or "virtual" shopping malls (such
as, but not limited to, retail portals); and (5) retailers which operate within
shopping mall locations.
(c) In the event that, within twelve (12) months of the Effective Date,
Client has not converted one-half of the shopping mall properties which, as of
the Effective Date, have agreements with Client to develop and operate gift
certificate programs to gift card programs which utilize the Services provided
by WildCard, upon notice by WildCard to Client, the exclusivity provisions set
forth in Section 3.2(b) shall terminate and be of no further force or effect.
Further, in the event that, within twenty four (24) months from the Effective
Date, Client has not converted three-quarters of the shopping mall properties
which then have agreements with Client to develop and operate gift certificate
or gift card programs to gift card programs which utilize the Services provided
by WildCard, upon notice by WildCard to Client, the exclusivity provisions set
forth in Section 3.2(b) shall terminate and be of no further force or effect. In
the event WildCard elects to terminate the exclusivity provisions as provided
herein, the exclusivity obligations of Client under Section 3.2(a) shall
likewise terminate.
(c)
7
8
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, editing, 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 Client 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.
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. 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 ACCOUNTS. Client will establish and maintain a
commercial demand deposit account (the Proceeds Account) at a bank acceptable to
the Issuing Bank. Client agrees to maintain, in the Proceeds Account, sufficient
funds to cover the aggregate amount of unspent balances for all Transaction
Cards issued through Client. Wildcard shall establish and
8
9
maintain the Settlement Account with the Sponsor Bank. On each banking business
day, WildCard will initiate an ACH transaction debiting from the Proceeds
Account an amount sufficient to assure that the Settlement Account contains a
balance equal to 5 days average settlement. 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 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 WildCard issues certification to the
Sponsor Bank that Client has paid all amounts due under this Agreement including
the settlement of all outstanding Card transactions. Client agrees to hold
harmless Sponsor Bank for any action taken by Sponsor Bank at WildCard's request
pursuant to the terms of this Agreement.
Client may establish multiple Proceeds Accounts and WildCard may establish
multiple Settlement Accounts as required by Customers to prevent co-mingling of
funds between programs.
3.9 APPOINTMENT OF AGENTS. Client hereby appoints WildCard as its agent
for the purpose of managing the settlement requirements of the Cards as
described in Section 3.8.
3.10 FAILURE TO MAINTAIN SUFFICIENT FUNDS. Provided WildCard 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 Settlement or Funding Accounts are 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 Accounts.
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 OTHER CLIENT RESPONSIBILITIES. Client shall perform the additional
obligations identified in Program Schedules which are entered into by the
parties pursuant to this Agreement.
9
10
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. In addition, WildCard shall pay to Client the residuals
("Residuals") related to account maintenance fees and interchange fees which are
generated by the Transaction Card Programs, as outlined in Schedule B.
4.2 INVOICING; PAYMENT. WildCard shall invoice Client at the intervals
provided for in the Program Schedule for the Charges associated with Services
provided during the preceding period. Client shall pay all invoices net 30 days
after the date the invoice is issued by WildCard. If any invoiced amounts are
not paid when due, a late charge of 1 1/2% 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 an invoice for Charges, then Client shall pay the undisputed portion
of the invoice by the due date and shall provide the following notification with
respect to the disputed portion of the invoice. Client shall notify WildCard as
soon as possible (and in any event no later than the due date of the invoice) 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 invoice as soon as possible in accordance with the dispute resolution
procedures in Section 12. Upon resolution of the disputed portion, Client shall
immediately pay WildCard the resolved amount together with the late charges
provided in Section 4.2 on the resolved amount.
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 carry out the Client Obligations under this
Agreement.
10
11
(b) Client acknowledges and agrees that it is solely responsible
for monitoring legal developments applicable to the operation of its business
and interpreting applicable state and federal laws, determining the requirements
for compliance with all applicable state and federal laws, 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 laws
applicable to its diverse customer base, or provide compliance services to
customers with respect to such laws. Consequently, Client agrees that WildCard
has no responsibility to monitor or interpret laws 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 laws applicable to Client, or
the terms and conditions of Client's Transaction Card agreements with, or
disclosure to, the Cardholders.
(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, 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 laws, rules or regulations.
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 mean (a) the terms of this Agreement; (b) all information of a party
marked "confidential," "restricted," "proprietary" or with a similar
designation; (c) in the case of Client, information and in addition to the items
specified in (b) above, Client Data and business information regarding business
planning and operations of Client; and (c) in the case of WildCard, information
and in addition to the items specified in (b) above, trade secrets, confidential
knowledge, know-how, technical information, data or other proprietary
information relating to the WildCard System (including, without limitation, all
source codes, object codes, software programs, computer processing systems and
techniques employed or used by WildCard or its affiliates and any related items
such as specifications,
11
12
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 disclosing 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.
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 12, 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,
12
13
however, that (i) 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 (ii) 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 PRIVACY OF CARDHOLDER DATA. It is the intent of the Parties that
this Agreement shall qualify under the "joint marketing exception" pursuant to
the terms of the Xxxxx-Xxxxx-Xxxxxx Act, P.L. 106-102, and privacy regulations
issued by the relevant regulatory authority adopted thereunder (the "Privacy
Regulations"). The Parties agree to make such alterations to this Agreement to
conform to the best practices which develop in response to such legislation and
the Privacy Regulations which are necessary to achieve the objectives of this
Section 6.8 and which do not alter the economics of this Agreement or the
allocation of risk hereunder. The Cardholder Data developed and acquired under
this Agreement will be shared with Client subject to compliance with the Issuing
Bank's existing privacy policy, the Privacy Regulations and applicable
Governmental Requirements. Both the Issuing Bank's existing privacy policy and
the Privacy Regulations contain additional restrictions on the re-disclosure and
reuse of the Cardholder Data by Client. Client agrees to comply with all privacy
and data protection laws, and applicable Governmental Requirements, including
but not limited to, the Xxxxx-Xxxxx-Xxxxxx Act which are and may in the future
be applicable to the Cardholder Data which is supplied to Client.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Client shall be the sole
and exclusive owner of all right, title and interest (including, without
limitation, all Intellectual Property Rights) in and to the Client Content.
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 Content and the WildCard System. Client acknowledges that the WildCard
System constitutes valuable trade secrets of WildCard and constitute
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
may retain a copy of the Client Data if required to satisfy regulatory
requirements.
13
14
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. INDEMNIFICATION
9.1 WILDCARD INDEMNITY. 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: (a) any act or
omission by WildCard, its representatives or any subcontractor engaged by
WildCard in the performance of WildCard's obligations under this Agreement; (b)
any material breach in a representation, covenant or obligation of WildCard
contained in this Agreement or (c) any claims that, in use of any Services, work
product or part thereof ("Product"), as delivered or as performed, provided to
Client under this Agreement or the use, reproduction or modification of any
Product as permitted by this Agreement, Client has violated, misappropriated or
infringed the Intellectual Property Rights of any third party. WildCard shall
have no obligation to indemnity Client under this Section 9.1 if the actual or
alleged infringement is based upon (i) any modification or alteration of the
Product that was not supplied or performed by WildCard, or (ii) the use of the
Product in combination with any other software or equipment not supplied or
provided by WildCard, if such actual or alleged infringement would not have
arisen absent such combination.
9.2 CLIENT INDEMNITY. Client shall indemnify, defend, and hold harmless
WildCard and the Issuing Bank, and their respective 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 act or omission by Client, or its
representatives in the performance of Client's obligations under this Agreement;
(b) any material breach in a representation, covenant or obligation of Client
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.
9.3 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
14
15
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 of the indemnitor in its capacity as an employer or potential employer
of a person.
9.4 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.
9.5 LIMITATION ON CLAIMS. Any claim for indemnification under this
Agreement must be made prior to the earlier of:
(a) One year after the party claiming indemnification becomes
aware of the event for which indemnification is claimed, or
(b) One year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10. LIMITATION OF LIABILITY
10.1 DIRECT DAMAGES. If WildCard shall during the term be liable to
Client, any Cardholder, or any other third party as a result of any disputes,
controversies or claims of any kind or nature arising under or in connection
with this Agreement or the relationship created 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
15
16
incurred by Client.
10.2 CONSEQUENTIAL DAMAGES EXCLUSION. Notwithstanding anything to the
contrary in this Agreement, WildCard shall have no liability for, nor will the
measure of damages include, under any theory of liability (whether legal or
equitable), any indirect, special, punitive or consequential damages or amounts
for business interruption, loss of income, profits or savings arising out of or
relating to their performance or non-performance under this Agreement.
10.3 LIMITATION ON DAMAGES.
(a) The cumulative amount of all such Damages recoverable against
WildCard for all such breaches, disputes, controversies and claims during the
entire term, will not exceed, in the aggregate, an amount equal to the total
amount of WildCard's Charges under this Agreement for the three (3) months
immediately preceding the arbitrator's then current final determination of the
amount of damages recoverable against WildCard.
(b) Notwithstanding the foregoing provisions of this Section
10.3, the liability limitations contained in such subsection shall not apply
with respect to: (i) proven Damages caused solely and directly by WildCard's
intentional misconduct constituting a violation of applicable civil or criminal
law or other act of WildCard for which a limitation of liability provision is
unenforceable under applicable law, (ii) proven Damages arising under a claimed
breach of Section 6, and (iii) proven Damages arising under Sections 9.1 or 9.3.
(c) Subject to the exceptions set forth in Section 10.3(b), the
limitations set forth in this Sections 10.1, 10.2 and 10.3(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.
10.4 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 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.
11. EXCUSABLE DELAY
11.1 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, (a) acts of
God, weather conditions, explosion, flood,
16
17
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 embargos; or (e) strikes, lockouts, or
other industrial actions or trade disputes.
11.2 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.
12. DISPUTE RESOLUTION
12.1 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 12.
12.2 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
(ii) the expiration of the thirty (30) day period
immediately following the initial request to
negotiate the Dispute;
17
18
provided, however, that this Section 12.2 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.
12.3 ARBITRATION.
(a) If the parties are unable to resolve any Dispute as
contemplated by Section 12.2, 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 12.3, 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
relating to or 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
18
19
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 12.3.
(d) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section 12.3, 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 12.3(b).
Each such replacement arbitrator shall satisfy the Basic Qualifications. If an
arbitrator is replaced pursuant to this Section 12.3(d) after the arbitration
hearing has commence, then a rehearing shall take place in accordance with the
provisions of this Section 12.3 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.
12.4 EQUITABLE RELIEF. Nothing in Sections 12.2 or 12.3 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 12.2 or Section 12.3.
19
20
13. TERM; TERMINATION
13.1 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
13.2 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 (1) Client fails to pay any invoice
within ten (10) days after receipt of a Breach Notice with respect to such
failure to pay, (2) if required by Visa, MasterCard or the Issuing Bank, or (3)
if Client fails to fulfill its obligations to fund the Proceeds Account as
required herein. In addition to the foregoing termination rights, Client shall
have the right, at its election, to terminate this Agreement and all Program
Schedules immediately by written notice, if (1) WildCard fails to pay any
Residuals within ten (10) days after receipt of a Breach Notice with respect to
such failure to pay, (2) if required by Visa, MasterCard or the Issuing Bank. In
particular, Client acknowledges that the Issuing Bank may terminate its
sponsorship of any or all Program Schedules hereunder in the following
circumstances:
(a) Failure of the Client to observe or perform, in any material
respect, the Client's obligations under this Agreement that continues for a
period of (i) thirty (30) days after 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 Bank provides WildCard written notice specifying the failure
in the case of a failure to pay any amount then due under this Agreement;
(b) In the event any financial statement, representation, warranty,
statement or certificate furnished to it by the Client in connection with or
arising out of this Agreement is materially and intentionally untrue as of the
date made or delivered.
(c) The Client (i) 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,
(ii) applying for or consenting to the
20
21
appointment of a receiver, trustee, custodian, sequestrator or similar official
for such party or for a substantial part of its property or assets, (iii) making
a general assignment for the benefit of creditors, or (iv) taking corporate
action for the purpose of effecting any of the foregoing; or
(d) 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 (i) relief in respect of the Client, or of a
substantial part of its property or assets under Title 11 of the United States
Code or any other Federal, state or foreign bankruptcy, insolvency, receivership
or similar law, (ii) 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 (iii) 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.
(e) Upon any change to or enactment of any law or regulation which would
have a material adverse effect upon the Transaction Card Program.
13.3 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 13.3 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.
13.4 TERMINATION FOR CERTAIN LEGAL CHANGES. If either party reasonably
concludes that this Agreement cannot be performed without violating applicable
state or federal laws or regulations, or if the application of such laws 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 legal 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
Agreement violates state of federal laws or regulations, either party may, by
giving written notice, terminate this Agreement as of a date specified in such
notice.
21
22
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 or (b) sent by overnight or
second day express delivery service or (c) sent by registered or certified mail,
postage prepaid, return receipt requested or (d) sent by confirmed facsimile, as
follows:
If to Client:
NBO, Inc.
0000 Xxxx Xxxxxxxxxx Xxx. Xxxxxxxx X
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: 000-000-0000
If to WildCard:
WildCard Systems, Inc.
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Fax: 000 000-0000
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 exhibits 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.
22
23
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 PUBLIC STATEMENTS. The terms of this Agreement shall be kept
confidential by the parties and neither party shall make public statements about
this Agreement or its terms, except such disclosures as may be required by
securities commission or stock exchange requirements or other applicable laws,
rules and regulations, or subject to Section 5.2 such disclosures as may be
required to comply with legal process.
14.9 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.
14.10 SURVIVAL. The provisions of Sections 3.9, 3.10, 3.11, 4.2, 4.3,
4.4, 5, 6, 7, 9, 10, 12, 14.1, 14.2, 14.9 and 14.13 shall survive any expiration
or termination of this Agreement.
23
24
14.11 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.
14.12 BINDING EFFECT. This Agreement shall be binding upon and shall
benefit the parties and their respective successors and permitted assigns.
14.13 NO THIRD PARTY BENEFICIARIES. There are no third party
beneficiaries of this Agreement.
14.14 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.
14.15 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.
WILDCARD SYSTEMS, INC. NBO, INC.
By: ______________________________ By: ______________________________
Name: ____________________________ Name:______________________________
Title: ___________________________ Title: ____________________________
Date: ____________________________ Date: _____________________________
24
25
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 Client Obligations
26
SCHEDULE A
TO
SERVICES AGREEMENT
FORM OF
PROGRAM SCHEDULE
This Program Schedule (the "Program Schedule") is entered into this 20th day of
March, 2001, by and between WILDCARD SYSTEMS, INC., a Florida corporation
("WildCard") and NBO, INC., a Utah Corporation ("Client"), in accordance with
the terms of the Services Agreement among the parties dated March 20, 2001 (the
"Agreement").
1.0 OVERVIEW SUMMARY
To provide the technology and services that would enable Client to offer
private label gift Cards through designated mall locations using Visa or
MasterCard as the transaction routing network and WildCard Systems as
the issuing processor.
Cards may be custom designed by Client, subject to the approval of Visa
or MasterCard and the Issuing bank.
The Card is an electronic stored value Card that operates through the
Association's network. Therefore, Interchange and any related processing
fees associated with Visa or MasterCard transactions shall be paid by
the merchant just like any other Visa or MasterCard transaction.
WildCard Systems will establish parameters so that electronic
authorizations will only be provided when there is an available balance
on the Card equal to or greater than the amount of the transaction
(subject to International floor limits) and the Card is presented at a
merchant designated by NBO. Cards will be anonymous in appearance - with
only the account number thermal printed on the front/back of the Card.
Visa, MasterCard or the Issuing bank may dictate the
positioning/location of the account number.
2.0 WILDCARD SERVICES DESCRIPTION
Both WildCard and Client are continuing to refine exactly what services
will be provided. Those services contemplated have been priced in the
Fee Schedule. Any additional services will be priced and agreed to in
writing by Client separately and prior to the provisioning of services.
3.0 KEY ASSUMPTIONS
This description of Services and WildCard's pricing to perform the
Services are based on the following key assumptions. Deviation from
these assumptions may require an adjustment to price, the solution
architectural description, the proposed implementation plan, the service
standards, and the description of Services.
27
Client will converted one-half of the shopping mall properties which, as
of the Effective Date, have agreements with Client to develop and
operate gift certificate programs to the gift card program which utilize
the Services provided by WildCard. Furthermore, within twenty four (24)
months, Client is expected to have converted three-quarters of the
shopping mall properties which then have agreements with Client to
develop and operate gift certificate or gift card programs to gift card
programs which utilize the Services provided by WildCard.
4.0 CLIENT OBLIGATIONS
WildCard and Client, within 30 days of the effective date, will define a
detailed description of the Client's obligations under this Program
Schedule and incorporate it into this Agreement as Schedule E - Client
Obligations.
5.0 TERM
5.1 SCHEDULED START UP DATE. The Scheduled Start Up Date for Services
under this Program Schedule is __________________.
5.2 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 [**] Processing Years (the "Original Term"), unless extended or earlier
terminated in accordance with this Agreement. The first Processing Year shall
commence on the date of the first live transaction 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").
5.3 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 Term. The pricing applicable during the Renewal Term shall be the
rates set forth in Section 6.2 of this Program Schedule increased to account for
a price index change, if any, described in Section 6.6 of this Program Schedule.
6.0 CHARGES
6.1 START-UP FEE. All Fees are Described in Schedule B to the Services
Agreement.
6.2 FEES. The fees and charges specified in Schedule B to the Service
Agreement shall apply to the Services provided to Client under this Program
Schedule.
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
28
6.3 MINIMUM CHARGES. In each Processing Year, Client will require and
shall pay to WildCard for processing services provided under this Program
Schedule sufficient to generate aggregate Charges at least equal to [**] of the
Charges paid during the immediately preceding Processing Year (the "Minimum
Charges"). WildCard shall calculate the total Charges paid by Client in respect
of Services performed during each Processing Year within ninety (90) days after
the end of each Processing Year and will invoice Client for the amount, if any,
by which the Minimum Charges for the Processing Year exceed the actual Charges
which were paid by Client to WildCard for such Processing Year.
REIMBURSEMENTS AND ASSESSMENTS
a. The communications data circuit, including the reoccurring service
charge, service termination fees and required modem(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
MasterCard, Visa or other dues, fees and assessments.
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.
6.4 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 conversion of 50% of Client's mall
customers during the first Processing Year, 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 Term of this Program Schedule in an amount equal to the greater of
(a) [**] percent [**] 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
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
29
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 Xxxx 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 6.4 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.
6.5 PRICING APPLICABLE TO RENEWAL TERM. During each Renewal Term,
WildCard may increase the Charges which were in effect for the immediately
preceding Processing Year (the "Old Year") by an amount to be negotiated in good
faith between the parties.
IN WITNESS WHEREOF, pursuant and in accordance with the Services Agreement
between the parties, the parties have executed this Program Schedule as of March
20, 2001.
NBO, INC.
By:
-------------------------
Title:
----------------------
WILDCARD SYSTEMS, INC.
By:
-------------------------
Title:
----------------------
30
SCHEDULE B
TO
SERVICES AGREEMENT
SCHEDULE OF STANDARD CHARGES
A. FEES AND SERVICES ON THE PAGE LABELED SERVICES AND FEES FOR NBO MALL
GIFT CARDS.
1. Program Setup
Corporate Program Setup Waived
Each Mall Depends on complexity and Association
Affiliation (ranges from $[**]- $[**]
per mall)
NBO is responsible for collecting the merchant IDs, preferably using a
sample card that is swiped at every POS terminal in every merchant location at
each mall. WildCard Systems will capture that information and establish the
program parameters to restrict cards to the mall or affiliation of malls
associated with an operator.
2. Account Creation, Card Encoding and Thermal Printing
Account Creation/Generation, Card Encoding and Thermal Printing of
Account Number
Order Quantity Per Card
----------------- --------
[**] $[**]
Includes:
Account Generation and Creation on our Systems Transferring Card
Information to Visa Certified Facility Encoding Cards and Thermal
Printing the Account Number on Cards CLIENT IS RESPONSIBLE FOR COST OF
PLASTIC CARDS AND PACKAGING IF DESIRED
3. Transactions
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
31
Load & Activation by CardWiz(TM), Batch or A2A $[**] per card
Account Maintenance $[**] per account per month
Card Transactions $[**] per authorization
4. Miscellaneous and/or Optional Services and Fees
Additional Thermal Printing $0.10 per side
Card Packaging Services
Card Order Quantity Per Card
------------------- --------
[**] $[**]
Includes:
Attaching Card to Card Carrier
Inserting Card Carrier into Envelope
Inserting One Additional Item into Envelope
Printing a Sequence # and Reference # on the Card Carrier, or Account #
Sealing Envelope and Preparing for Shipping
Cards and/or Packaging Components [**]% administrative fee
Live Agent Customer Support $[**] per minute
IVR Customer Support $[**] per minute
Custom IVR Messaging $[**] per hour (4 hour minimum)
CardWiz(TM) User Fees (B2B) Waived
Order&ServiceNet(TM)Site (B2C) Site creation - our standard consumer site
$[**] set-up and $[**] per month, per
[**] cards on file.
Access to On-Line CardWiz(TM) Training TBD
Additional CardWiz(TM) Training $[**] per day, plus travel, lodging and meal
expenses waived for pilot with the assumption
of train-the-trainer for up to 3 days at a
centrally agreed upon location
Shipping/Handling and Postage At cost
Back Office ACH Fee for Value Funding $[**] per ACH transfer
Non-Monetary Account Changes $[**] per change
E. Revenue Components of Program
Account Maintenance (deducted from card balance) A share of [**]% of all Account
Existing Mall Contracts (detailed customers attached) Maintenance
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
32
[**]
Float Income [**]
Interchange share [**]
B. NEW OR ADDITIONAL SERVICES. For any services performed by WildCard at
Client's direction which are neither set forth in a Program Schedule nor covered
by a separate agreement, Client shall pay WildCard for such services at
WildCard's then current standard rates.
C. DELIVERY COSTS. WildCard shall act as payment agent for Client and
shall pay any third-party charges (such as delivery costs, including
telecommunications and postage) comprising the expense.
D. PASS-THROUGH EXPENSES. In addition to any other payments specified in
the Agreement and to the extent not provided for in this Schedule B, Client will
pay, or reimburse WildCard for, all reasonable out-of-pocket costs and expenses
actually incurred by WildCard in connection with training and other on-site
Services including, without limitation, travel and travel-related expenses
incurred by WildCard. The time of WildCard personnel time spent in transit from
WildCard's location to Client sites will be chargeable pursuant to its standard
hourly rates associated with such personnel.
E. RERUNS. Client will pay, or reimburse WildCard for, all out-of-pocket
costs and expenses incurred by WildCard in connection with reruns necessitated
(i) by incorrect, incomplete or omitted information or erroneous instructions
supplied to WildCard by Client, its employees or agents, and (ii) by any other
reason attributable to any Client. WildCard will document the reason for each
such rerun and, if requested by Client, will periodically provide such
documentation to Client, all in accordance with such procedures as WildCard may
adopt from time to time.
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
33
F. THIRD-PARTY EXPENSES. If certain third-party costs incurred by
WildCard to provide Services, such as tariff line rates, data circuit charges or
other rates charged to WildCard by any communications common carrier or other
provider of similar services, are increased by such third party, WildCard shall
increase the then current Charges to reflect the incremental costs of such items
effective on the effective date of the increase to WildCard.
G. DECONVERSION. Upon the expiration or termination of this Agreement,
Client shall pay WildCard, at WildCard's then current rates, for each activity
completed by WildCard in order to accomplish the deconversion of Client from the
WildCard System and for all costs, including postage or shipping, including
systematic stripping and removal of all such account information from the
WildCard System. In addition, if at Client's request WildCard builds on the
WildCard System the ability to process accounts for designated BINs or ICAs of
Client and Client does not use these BINs or ICAs on the WildCard System, Client
shall pay WildCard, at WildCard's current rates for each activity completed by
WildCard to remove these BINs or ICAs from the WildCard System, including
systematic stripping and removal of all such BIN or ICA information from the
WildCard System.
34
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 and Computer Fraud 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.
35
(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.
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, Visa, 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
Visa.
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 CALL 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.
36
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.
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. The system services support group
will maintain an 82.5% first-call resolution rate, a 60-second ASA, and
an abandoned call rate of 5% or less (calculated over 40 seconds --
should the customer hang up within the first 40 seconds, it will not be
considered to be an abandoned call). First call resolution is defined as
a reasonable assessment of the problem, alternate solutions or
workarounds identified, and a corresponding estimate of root cause
correction. 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.
37
SCHEDULE E
TO
SERVICE AGREEMENT
CLIENT OBLIGATIONS
ATTACHMENT A: SYSTEMS AVAILABILITY
1. AUTHORIZATIONS
SYSTEM: WILDCARD AUTHORIZATION SYSTEM
- Connections: Visa end-point authorization interface
- Hardware Platform: Intel-based processor system, fiber channel disk arrays
- 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.
- Operating System: NT 4.0 SP 5 Enterprise Edition, SQL 7.0 Enterprise Edition, cluster configuration.
- Service Levels: 365 days a year, 24 hours a day, with the following exceptions:
o 15 minutes between 23:00 and 04:00 EST Monday through Sunday
o additional normal weekly scheduled maintenance window which occurs each Sunday
mornings between 01:00 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
- Connections: Internet-based, multiple T1s
- Hardware Platform: Intel based processor systems, load balancing switches,
Cisco routers and switches.
38
- 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: NT 4.0 SP 5 Enterprise Edition, IIS 4.0, MTS
- Service Levels: 365 days a year, 24 hours a day, with the following exceptions:
o 15 minutes between 23:00 and 04:00 EST Monday through Sunday
o additional optional weekly scheduled maintenance window which occurs each Sunday
mornings between 01:00 and 06:00 EST (Although this is the scheduled maintenance window,
this maintenance is usually completed within 35 minutes of starting)
3. VRU - VOICE RESPONSE UNIT
SYSTEM:IVR
- Connections: Multiple T1s, owned and maintained by WildCard or
Client
- Hardware Platform: Dialogic T1 boards, Larscom CSUs
- Response Time: Answer ring to greeting: under 1 second; Coordinated voice and
data: under 2 seconds
- Operating System: NT 4.0 SP 5 Enterprise Edition
- Service Levels: 365 days a year, 24 hours a day, with the following exceptions:
o 15 minutes between 23:00 and 04:00 EST Monday through Sunday
o additional optional weekly scheduled maintenance window which occurs Sunday mornings between
01:00 and 06:00 EST (Although this is the scheduled maintenance window, this maintenance is usually
completed within 35 minutes of starting
39
ATTACHMENT B: SYSTEMS SERVICES
1. INCIDENT RESOLUTION: WildCard will assign, work, and report on all incidents
based upon the business impact. Attention/updates to an incident will be
governed by the severity assigned to that incident. Incidents will be
reported to Client daily. As such, severities are defined as follows:
SEVERITY DESCRIPTION RESOLUTION
---------------- ------------------------------- -----------------------------------
Severity 1 Requires immediate attention Acknowledgment in 60 minutes or
and resolution. Emergency; less and continued attention
directly impacts the until resolved.
operation of the business. Status updates: After initial
contact advising of connection
made with member of responsible
area, hourly until identified
estimated time can be given.
---------------- ------------------------------- -----------------------------------
Severity 2 Legal or regulatory or Acknowledgment in 60 minutes or
immediate direct customer less and resolution or identified
impact that is clearly not an resolution in 24 hours.
isolated instance. Status updates: After initial
contact advising of connection
made with member of responsible
area, hourly until identified
estimated time can be given.
---------------- ------------------------------- -----------------------------------
Severity 3 Impacts critical business Acknowledgment in 1 hour or less
functions; may have significant and resolution or identified
bottom line impact. resolution in 48 hours.
Status updates: 3 hours until
identified estimated time can be
given.
---------------- ------------------------------- -----------------------------------
Severity 4 Isolated cardholder impact or Acknowledgment in 1 hour and
impedes important business resolution or identified resolution
functions. in weeks (subject to Regulation Z
time frames and can be negotiated
with user).
Status updates: Weekly until
identified estimated time can
be given.
---------------- ------------------------------- -----------------------------------
Severity 1 & 2 can only exceed required resolution time frames with an
approved exception. Exceptions can only be authorized by specific managers
and will be noted in the appropriate tracking mechanism under a specific
field for that purpose. All exceptions must be continuously updated until
resolved.
40
2. DATA CENTER: WildCard provides the capability to process, store and access
information for production processes, analysis, and reporting.
SERVICE LEVEL STANDARDS for the Data Center include:
X Staffing 365 days a year, 24 hours a day.
X 99.25% availability of critical on-line systems
X The following are business unit requirements:
* Scheduling changes to nightly production batch processing must be submitted
to the scheduling department by 3:30 p.m. EST, Monday through Friday.
* Three (3) day notice for permanent changes to new or existing tables.
* Changes to schedules outside of the normal cutoff time require management
approval and are noted as exception changes.
3. NETWORKED SYSTEMS: WildCard provides all support for LAN connections,
internal voice communications, and Internet infrastructures. Client provides
all support for telecommunications lines, and Client routers installed on
the WildCard premises.
SERVICE LEVEL STANDARDS for the Networked Systems include:
X Any critical hardware replacement will have a 48-business hour turnaround.
X Configurations for servers or complex systems will have a 24 business hours
turnaround time.
Utility servers will have a 99.25% uptime. Disk space will be
monitored to prevent shortages. Servers are maintained 7 days a
week, 24 hours a day. There will be planned downtime for maintenance
which will be broadcast ahead of time. These planned outages will
not be included in the calculation for the 99.25% uptime.
