10th AMENDMENT TO SERVICE AGREEMENT
Exhibit
10.27
10th AMENDMENT TO SERVICE AGREEMENT
This 10th Amendment to Service Agreement, by and between First Data
Merchant Services Corporation (“FDMS”) and iPayment Inc. (formerly known as iPayment Holdings,
Inc.) (“Customer”) is made and entered into this 12 day of November 2009 (this “Amendment”).
RECITALS
A. FDMS and Customer have entered into a certain Service Agreement dated as of July
1, 2002, as amended (the “Service Agreement”).
B. American Express Travel Related Services Company, Inc. (“American Express”) has designed a
program to increase acceptance of Cards (as defined in the American Express One Point Operating
Regulations) among small merchants by offering an integrated service and competitive pricing
through third party service agents, which program is known as the Establishment Sales and Servicing
Program (the “One Point Program”).
C. FDMS and American Express are parties to that certain Establishment Sales and Servicing
Program Agreement, effective as of December 11, 2007, including the applicable Operating
Regulations, as each may be amended from time to time in accordance with the terms of such
Establishment Sales and Servicing Program Agreement (the “FDMS AmEx Agreement”).
D. FDMS may provide Authorization Services, Submission Services and Settlement Services, as
each is defined in the American Express One Point Operating Regulations, in accordance with the
terms of the FDMS AmEx Agreement (“One Point Services”).
E. Customer desires for Customer’s Accounts that meet the applicable One Point Program
requirements to participate in the One Point Program and receive certain One Point Services subject
to the terms of this Amendment.
F. Customer and FDMS desire to amend the Service Agreement as set forth herein.
AGREEMENT
Customer and FDMS agree as follows:
1. The
terms of this Amendment are effective as of November 1, 2009.
2. Customer represents and warrants that it is a Service Agent (as such term is used in the
American Express One Point Operating Regulations) pursuant to an agreement between and executed by
American Express and Customer, including the American Express One Point Operating Regulations (as
each may be amended from time to time, the “Customer AmEx Agreement”). Customer promptly will notify
FDMS of any changes with respect to the foregoing, including termination of the Customer AmEx
Agreement.
3. During the shorter of the term of the FDMS AmEx Agreement, the Customer AmEx Agreement or
the Service Agreement, FDMS will provide Customer’s Accounts that have a valid One Point Program SE Number
(as defined in the American Express One Point Operating Regulations) on the FDMS System with those
One Point Services that are contemplated to be provided by FDMS to Customer or Customer’s Accounts
under the Service Agreement. The parties acknowledge and agree that Customer will pay the fees set
forth in Section II of Exhibit B
to the Service Agreement for One Point Services provided by FDMS to Customer or Customer’s
Accounts. Section 10.5 of the Service Agreement will apply to FDMS’ release of Customer’s
Proprietary Information to American Express upon FDMS’s receipt of a written request from
American Express.
4. As between Customer and FDMS: (a) FDMS shall have no liability to American Express with
respect to Customer’s performance or breach of its obligations under the Customer AmEx Agreement;
(b) Customer shall have no liability to American Express with respect to FDMS’s performance or
breach of its obligations under the FDMS AmEx Agreement; and (c) FDMS shall have no liability to
Customer with respect to the One Point Services so long as, with respect to the One Point
Services, (i) FDMS is performing its obligations under the FDMS AmEx
Agreement in accordance with the terms of such agreement, and (ii) FDMS has not breached
its obligations under the Service Agreement (including this Amendment).
5. The definitions of “Interchange Settlement” set forth in Exhibit C to the Service
Agreement is hereby amended and restated as follows:
“Interchange Settlement” means, with respect to Transaction Cards for which FDMS provides
handles settlement, the process by which FDMS on behalf of Customer (i) facilitates payment for
Transaction Card Tickets presented by Acquirers to Customer, (ii) receives payment for
Transaction Card Tickets presented by Customer to Issuers, and (iii) remits and receives
payments for chargebacks and other Interchange fees and expenses of or payable by Customer.
6. Capitalized terms used but not otherwise defined in this Amendment will have the meanings
set forth in the Service Agreement. This Amendment constitutes the entire agreement between the
parties regarding the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings. In the event of a conflict between this Amendment and the
Service Agreement as it relates to the subject matter hereof, the terms of this Amendment shall
control. Otherwise, all terms and conditions of the Service Agreement shall likewise apply to
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set
forth above.
| iPayment, Inc. | First Data Merchant Services Corporation | |||||||||
By:
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/s/ Xxxxxx Xxxxxxx
|
By: | /s/ Xxxxxxxxx Xxxxxx
|
|||||||
Name:
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Xxxxxx Xxxxxxx | Name: | Xxxxxxxxx Xxxxxx | |||||||
Title:
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Senior Vice President | Title: | SVP | |||||||
Date:
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10/09/2009 | Date: | 11-13-09 | |||||||
