CREDIT CARD, DEBIT CARD AND MERCHANT PROCESSING SERVICE AGREEMENT
THIS AGREEMENT is made and entered into between First Independent
Computers, Inc., a Texas corporation, (FICI), 0000 Xxxxx 0xx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, and Best Bank (the "Customer") 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
Customer desires to engage FICI to perform data processing and other
services in order to provide to Customer computer programming, data processing
and other services for Customer in connection with Customer's MasterCard
International, Inc. ("MasterCard"), VISA U.S.A., Inc. ("VISA") and, if
applicable, private label charge card, merchant processing and the line of
credit operations (the "Services") as described in Schedule "A" to this
Agreement.
FICI and Customer therefore agree as follows:
1. SERVICES.
1.1 SERVICES.FICI agrees to perform for Customer the Services described in
Schedule "A". Customer agrees on an exclusive basis during the terms of this
Agreement to engage FICI to perform the Services described in Schedule "A".
1.2 TRAINING. FICI will initially train Customer personnel selected by
Customer in the use of the Services. Customer will make the necessary qualified
personnel available for training by FICI.
1.3 REPORTS. FICI will provide the Customer with daily reports and other
periodic reports reflecting the Services provided to Customer, including among
other things, all detailed charges and credits to Customer's accounts showing
proper source references and information necessary for the general books of both
Customer and Customer's customers.
1.4 EQUIPMENT. Customer will provide, install, and maintain in good
operating condition all necessary communication terminals, control units,
communication lines to the FICI data center, telephones, and any other equipment
and features required to implement the terms of this Agreement, such equipment
is listed on Schedule "A" attached hereto. The purchase of equipment and
features shall be only as agreed by both parties. Customer will furnish and
install any and all spare parts required for such equipment and features.
1.5 FINANCIAL STATEMENTS; AUDIT. Upon Customer's request, FICI will
provide to Customer copies of the most recent audited financial statements of
First Independent Computers, Inc., the most recent unaudited financial
statements of FICI and the most recent independent audit of FICI's data
processing functions.
1.6 NOTIFICATION OF SYSTEM CHANGES. All changes to the FICI processing
system materially affecting Customer's procedures or reporting must be approved
by both parties unless mandated by statute regulation or appropriate court
order and will be preceded by release bulletins to Customer at least 30 days
prior to installation.
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1.7 OPERATING INSTRUCTIONS. FICI may from time to time provide Customer
with instructions governing the operation of the FICI processing system (the
"Operating Instructions"). Customer will comply with all such Operating
Instructions as may be in effect from time to time.
1.8 BACKUP FACILITIES. FICI will provide backup facilities and procedures
for provision of the Services to prevent any major interruption of services to
Customer in the event primary facilities are not functional.
2. CHARGES FOR SERVICES.
2.1 PRICING. Customer will pay FICI for the data processing and other
services set forth in Schedule "A" which includes "A1" Credit Cards, "A2" Debit
Cards and "A3" Merchant Processing in accordance with the pricing schedule
attached hereto as Schedule "A". In the event Customer engages FICI to provide
additional Services by an amendment to Schedule "A", Customer will pay FICI for
the additional services in accordance with the pricing schedule attached hereto
as Schedule"A" for said additional service.
2.2 PAYMENT. Customer will provide FICI with access to an account of
customer funds, not requiring signature, which FICI may draw upon by ACH to pay
for services provided by FICI to customer under the terms of this Agreement.
The detailed records of the transaction types, prices, volumes, and charges
represented by the amount drafted on the account of Customer will be provided by
FICI to Customer on a daily or monthly basis according to the nature of the
transaction or charge. If Customer fails to establish an account as required by
this section, FICI shall notify Customer in writing of such failure and Customer
shall, within seven (7) days of such notification, establish the account. If
Customer fails to establish the account within such period, then FICI may
terminate this Agreement by written notice to Customer. If FICI shall be unable
to receive payment from Customer at any time because sufficient funds are not
available in the account to permit a draft to be honored, then FICI shall notify
Customer, in writing, of such failure to receive payment in the account to
permit a draft to be honored, then FICI shall notify Customer, in writing, of
such failure to receive payment and Customer shall, within (10) days of such
notification, provide sufficient funds in the account to assure full payment of
FICI. If Customer fails to provide sufficient funds in the account to pay FICI
within such time period, then FICI may terminate this Agreement by written
notice to Customer. Upon the termination of this Agreement, FICI shall have no
further obligation to provide services to Customer and all outstanding unpaid
amounts due and owing by Customer to FICI under the terms of this Agreement
shall become immediately due and payable. The termination of this Agreement
shall not affect the obligation of Customer to pay for services rendered to
Customer under this Agreement prior to the date of termination.
2.3 PRICE CHANGES. During the first two (2) years of the Original Term of
this Agreement, FICI may not increase the prices for the Services set forth in
Schedule "A", with the exception of prices for pass-through items which may be
increased at any time the applicable vendors increase such prices to FICI, but
only to the extent of the actual increases by vendors. Thereafter, for each
subsequent annual period, FICI may
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increase any or all of the prices set forth in Schedule "A" by an amount not to
exceed the greater of five percent (5%) or the increase, if any, in the previous
calendar year, of the National Consumer Price Index for all Urban consumers (All
items 1967 = 100) published by the Bureau of Labor Statistics of the U.S. Labor
Department.
3. CONVERSION.
3.1 CONVERSION FEE. Should customer elect to have FICI perform the
services necessary to convert Customer's equipment, software and systems to
implement the FICI Services, Customer will pay FICI the conversion fee set forth
in Schedule "A".
3.2 CONVERSION COSTS. During the time necessary for FICI to complete the
conversion of Customer's equipment, software, customer will pay all of FICI's
reasonable out-of-pocket conversion expenses for travel, lodging and the like.
FICI will submit statements to Customer for such expenses and Customer will pay
such statements within thirty (30) days after receipt thereof. If requested
by Customer, FICI will provide copies of vouchers or other documentation for
such statements. Any amounts that remain unpaid for more than thirty (30) days
after the date of the statement shall bear interest at the rate of one and
one-half percent (1.5%) per month from the date of the statement, but not to
exceed the highest applicable lawful rate.
4. TERM.
4.1 ORIGINAL TERM AND RENEWAL. This Agreement is effective from the date
hereof and shall extend for an Original Term of FIVE (5) years from October,
1997. This Agreement shall automatically renew for successive three (3) year
periods at the end of the Original Term and at the end of each renewal term,
unless either party gives the other party written notice at least one hundred
eighty (180) days before the end of the Original Term or any renewal term of its
intention not to renew this Agreement.
5. PROPRIETARY RIGHTS & CONFIDENTIALITY.
5.1 PROPRIETARY RIGHTS. Customer acknowledges that the FICI Services and
processing system consists of computer programs, procedures, forms, information
and other materials which constitute trade secrets and property of great value
owned by FICI or its affiliates, having been acquired through the expenditure of
a great amount of time, effort and money. Customer further acknowledges that
any disclosure to others of any of such trade secrets will result in substantial
monetary loss and irreparable damage to FICI. Customer will treat all such
programs, procedures, forms, information and materials confidentially and
safeguard them by using the same procedures used by Customer for data Customer
regards as confidential except as necessary in the event of FICI's breach of
this agreement. Customer will not disclose to any person, directly or
indirectly, except as required in the proper performance of this Agreement, any
information regarding the FICI Services or processing system or the terms of
this Agreement. All specifications, tapes, programs, enhancements and other
materials developed in connection with this Agreement shall be and remain at all
times during and after the term of this Agreement the exclusive property of
FICI. The provisions of this Article 5 shall survive any termination of this
Agreement.
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5.2 CONFIDENTIALITY OF DATA. All data relating to Customer's business
provided to FICI by Customer pursuant to this Agreement will be treated
confidentially and safeguarded by FICI using the same care and discretion that
it uses with data which FICI regards as confidential, except where and to the
extent that disclosure is authorized by Customer, compelled by governmental
regulation or customers of Customer, by court order and upon approval by
Customer. FICI further acknowledges that any disclosure to others of any
Customer trade secrets will result in substantial monetary loss and irreparable
damage to Customer. The provisions of this Article 5 shall survive any
termination of this Agreement.
6. CORRECTION OF DATA; LIMITATION OF LIABILITY.
6.1 CORRECTION OF DATA. In the event FICI employees cause errors in
Customer's data to occur and Customer requests correction of such data within
ninety-five (95) days from the date of the error, FICI will correct such data as
necessary at FICI's expense. The expense to FICI of correcting such data shall
be the only responsibility of FICI and shall constitute Customer's sole and
exclusive remedy with respect to such errors.
6.2. LIMITATION OF LIABILITY. In no event will FICI be liable for
special, indirect, incidental or consequential damages of Customer or any third
party. Except for losses covered by FICI's errors and omissions coverage
described in Section 6.3., FICI's total liability for direct damages alleged by
Customer or any other party in any action, regardless of its nature, arising out
of or in connection with this Agreement shall not exceed the amount of the first
month's charges paid by Customer to FICI under this Agreement. Customer will
release, indemnify and hold harmless FICI from and against any claim for
damages in excess of such amount.
6.3. ERRORS AND OMISSIONS COVERAGE. During the term of this Agreement,
FICI will maintain errors and omissions coverage with respect to its employees
of up to one million dollars ($1,000,000) per occurrence.
6.4. FORCE MAJEURE. FICI shall not be liable for damages arising from or
delays in processing or other non-performance caused by such events as
accidents, fires, telecommunications failures, equipment failures, failures or
fluctuations in electrical power, heat, light or air conditioning, labor
disputes, strikes, riots, war, governmental regulations, third party
non-performance, acts of God or other causes over which FICI has no control.
7. TERMINATION.
7.1. TERMINATION FOR CAUSE. Customer or FICI may terminate this Agreement
upon the material breach of this Agreement by the other party under this
Agreement and failure of such party to cure such breach within one hundred
eighty (180) days after receipt of written notice specifying in detail the
breach claimed. If such breach is not cured within such 180-day period,and the
terminating party intends to terminate, the terminating party must immediately
give thirty (30) days written notice of termination.
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7.2. TERMINATION FOR NON-PAYMENT. If Customer fails to pay in full any
invoice within thirty (30) days from the date of invoice, FICI may notify
Customer that such invoice is past due and provide a 30-day period for payment
of the past due amount plus any interest accrued thereon. If Customer fails to
pay the full amount of such invoice plus interest within such 30-day period,
FICI may terminate this Agreement and all services hereunder at any time upon
written notice to Customer.
7.3. FILES AND OTHER MATERIALS. Upon proper termination of this Agreement
in accordance with all applicable provisions (at the conclusion of the required
written notice period), all data files created by FICI and related to Customer
will be furnished to Customer by FICI in FICI's standard form at the cost set
forth in Schedule "A", provided however, that such cost shall be waived if such
termination is due to material breach of this Agreement by FICI. Should
Customer terminate this Agreement prior to the end of the Original Term or any
renewal term, customer will pay for all costs of communications equipment that
has been installed in Customer's locations as of the time of such termination,
such payment to include all of FICI's costs in accordance with the applicable
equipment service agreement. FICI agrees to use reasonable efforts to relocate
such communications equipment. Upon any termination of this Agreement, Customer
will return to FICI all operations materials and materials relating to or
constituting part of FICI's processing system.
7.4. PAYMENT DUE UPON TERMINATION. Upon any termination of this
Agreement, all amounts owing from Customer to FICI, together with any and all
interest accrued and unpaid thereon, shall be due and payable at the time of
termination.
7.5. LIQUIDATED DAMAGES. Upon any termination of this Agreement prior to
the end of the Original Term or any renewal term, other than upon termination
due to material breach by FICI hereunder, Customer shall pay to FICI as
liquidated damages an amount equal to the product of eighty percent (80%) of
Customer's average total monthly xxxxxxxx under this Agreement for the most
recent six (6) months (or lesser number of months if Services have been provided
for less than six (6) months) multiplied by the number of months remaining in
the term of the Agreement. The parties hereto acknowledge and agree that (a)
FICI has incurred and will incur substantial expenses in connection with the
commencement and continuation of providing services hereunder, (b) FICI has
substantial fixed expenses in providing these services, which cannot be reduced
by termination of such services, (c) in the event of any such termination, the
damages that would be incurred by FICI because of such termination would be
uncertain and difficult and impracticable to calculate and (d) the amount
determined pursuant to this Section 7.5. represents a reasonable method of
estimating the actual damages that would be incurred by FICI in the event of
such a termination.
8. General.
8.1. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Texas. This Agreement has been accepted in and shall
be performable in Abilene, Xxxxxx county, Texas. All times referred to herein
shall be as Abilene, Texas time.
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8.2. ENTIRE AGREEMENT; RIGHT TO PERFORM. This Agreement represents the
entire understanding between Customer and FICI with respect to the matters
contained herein and, except as otherwise provided herein, may be amended only
by an instrument in writing signed by the parties hereto. Customer warrants
that it will be free, as of the date of commencement of the Services to be
provided hereunder, of any contractual obligation or legal impediment that would
prevent Customer from performing its obligations under this Agreement, and that
FICI's offer to provide to such services in no way caused or induced Customer to
breach any contractual obligations.
8.3. SEVERABILITY. In the event that any of the provision of this
Agreement are held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected, and in lieu of such invalid or unenforceable provision there
shall be added as part of this Agreement, a provision as similar in terms as may
be valid and enforceable.
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8.4. RELATIONSHIP OF PARTIES. FICI, in providing services to Customer
hereunder, is acting only as an independent contractor. Except as otherwise
provided herein: (a) FICI does not undertake by this Agreement or otherwise to
perform any obligation of Customer, whether regulatory or contractual, or to
assume any responsibility for Customer's business or operations, and (b) FICI
has the sole right and obligations to supervise, manage, contract, direct,
procure, perform or cause to be performed, all work to be performed by FICI
under this Agreement.
8.5 NO-HIRE PROVISION. During the term of this Agreement and for a period
of twelve (12) months thereafter, neither party will, without the prior written
consent of the other, which consent will not be unreasonably withheld, offer
employment to or employ any person employed then or within the preceding twelve
(12) months by the other party, if the person was involved in providing or
receiving services.
8.6. NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be given by personal service or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties as they appear
above, or as changed through written notice to the other party.
8.7. BINDING EFFECT AND ASSIGNMENT. This Agreement is binding on the
parties hereto and their respective successors and assigns. Customer may not
assign this Agreement (whether such assignment is effected in connection with a
sale of Customer's assets, stock or through merger or otherwise) without the
prior written consent of the other party, which shall not be unreasonably
withheld.
Dated and effective this 1st day of October, 1997.
Best Bank First Independent Computers, Inc.
By: By:
Name: Name:
Title: Title:
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