Exhibit 10.7.4
FACILITIES MANAGEMENT SERVICES AGREEMENT
This Agreement (the "Agreement") is made and entered into this 1st day
of August, 1998 by and between COLUMBUS BANK AND TRUST COMPANY ("CB&T") of
Columbus, Georgia, and COMPUCREDIT CORPORATION, a Georgia corporation
("CompuCredit") as the successor to CompuCredit, L.P., a Georgia limited
partnership of Atlanta, Georgia.
PREAMBLE
The terms and provisions of this Agreement provide for the utilization
by CompuCredit of CB&T's facilities management service ("Services") for certain
credit card accounts. To provide for the receipt of the Services by CompuCredit
and in consideration of the terms and provisions specified in this Agreement,
the parties hereto agree as follows:
SECTION 1
SERVICES PROVIDED BY CB&T
A. Description of Services. CB&T will provide to CompuCredit the
Services identified and described on Exhibit "A", attached hereto and made a
part hereof by reference at the prices noted therein, and shall provide such
Services in accordance with the policies and procedures set forth in the Aspire
Operations Manual ("Manual"), which is made a part hereof by reference, except
as otherwise provided herein. The Manual shall be signed by CompuCredit and CB&T
and shall provide for written amendments thereto from time to time as agreed to
by the parties. All services shall be provided in accordance with applicable
VISA Operating Regulations and procedures. CB&T will provide the Services in
connection with (i) the Aspire Card; and (ii) such other credit cards or
bankcards as agreed in writing by CompuCredit and CB&T (collectively,
"CompuCredit Cards"). The credit card accounts associated with those CompuCredit
Cards for which the Services are provided under this Agreement are referred to
herein as the "Accounts". References herein to the "creditor" with respect to
any of the Accounts, shall mean any affiliate of CompuCredit, or any other third
party approved by CB&T pursuant to Section 9.B below, who at any time during the
term of this Agreement is the account owner with respect to any of the Accounts.
CompuCredit acknowledges that it has reviewed and understands such policies and
procedures and hereby agrees that CB&T shall apply such policies and procedures
for the services provided under this Agreement. An entity that controls, is
controlled by, or is under common control with, a party hereto is referred to
herein as an "affiliate" of such party. "Program" shall mean the credit card
program conducted with respect to the CompuCredit Cards and the Accounts.
CB&T shall provide to CompuCredit periodic reports (through Total
Systems Services, Inc. ("TSYS") or otherwise), including
but not limited to, new account application status reports, delinquent account
reports, charge-off documentation and settlement reports, reports of service
performance standards, and such other reports as CompuCredit may reasonably
request from time to time. The frequency and content of such reports shall be
mutually agreed upon by CB&T and CompuCredit, consistent with CB&T's and/or
TSYS' systems capability, as applicable, and CB&T's and/or TSYS' report
production schedule.
During the term of this Agreement CompuCredit may, at its own expense
and upon reasonable prior notice,
(i) have access to and the right to inspect and copy
(hereinafter "Audit") those portions of the books, records
and data records of CB&T relating to services performed
herein by CB&T (or to which CB&T has access as a client of
any subcontractor performing work for or on behalf of
CB&T) to the extent necessary for CompuCredit to verify
compliance by CB&T with its obligations under this
Agreement, and
(ii) receive from CB&T all such information concerning
transactions and services provided by CB&T or on CB&T's
behalf pursuant to this Agreement as CompuCredit may
reasonably request (excluding, at CB&T's option,
information not within the scope of information referred
to in clause (i) above).
In the event that CompuCredit requests that CB&T perform any additional
facilities management services in connection with the CompuCredit Cards, and
CB&T agrees to provide such services, then the details and the cost of such
services shall be agreed to by CompuCredit and CB&T in writing and shall be
attached to this Agreement as an amendment or set forth in a separate document.
B. Service Standards.
(1) The Service Standards applicable to the Services to be
furnished by CB&T hereunder are set forth in Exhibit "B" attached hereto and
made a part hereof by reference.
(2) Service Standards Variance. CB&T shall on the 10th day of
each month during the term of this Agreement provide CompuCredit with a written
report indicating CB&T's performance relative to the Service Standards set forth
in Exhibit B of this Agreement. In the event the report indicates CB&T has not
met the Service Standards, subject to the limitations provided for in Section
1(B)(3) of this Agreement, CB&T shall provide CompuCredit with a credit equal to
the corresponding financial penalty amount for performance failure set forth in
Exhibit C.
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(3) CompuCredit will, on November 1, 1998 and thereafter on the
first day of each month during the term of this Agreement, provide CB&T with a
written projection of the managed account volume for each month of the
succeeding twelve month period ("Projection"). CB&T will then create monthly
volume projections for each service category for the succeeding twelve months
and return to CompuCredit for review by the tenth day of each month. CompuCredit
will review and approve the volume projections by the fifteenth of each month
and return to CB&T. In the absence of completed volume projections, CompuCredit
and CB&T agree that the Projections generated for the previous month will be in
effect ("carryover Projection"). The Projection provided to CB&T by the
fifteenth of each month as aforesaid (or, alternatively, the carryover
Projection, if applicable), with respect to that month and the three succeeding
months, may not be changed in any subsequent Projection, without CB&T's written
agreement. In the event the actual volume for any service category for any month
is more than 110% of the final Projection for such month then the Service
Standards for such service category imposed upon CB&T pursuant to Section
1(B)(1) shall be adjusted down by one percent for each percent by which the
actual volume exceeds 110% of the Projection; however, in the event the actual
volume for any service category for any month is more than 135% of the final
Projection for such month then the Service Standards for such service category
shall have no effect and shall be deemed to have been waived completely. If the
actual volume for any service category for any month is less than 90% of the
final Projection (as such Projection may have been changed with CB&T's written
agreement) for such month then CompuCredit shall, within ten (10) days notice
from CB&T, pay to CB&T the difference between the actual service category fee
for such month and 90% of the projected volume of service category for the same
month multiplied by the appropriate fee.
(4) Standard of Care: In performing the Services contemplated
under this Agreement, and in the selection and use of facilities, equipment,
machines and personnel required for such performance, the custody and
safekeeping of materials (including plastic bankcard forms) furnished to CB&T
by, or acquired by CB&T on behalf of, CompuCredit (or any creditor with respect
to any of the Accounts) in connection therewith, CB&T shall exercise ordinary
care and diligence subject to the limitations set forth in this Paragraph B.(4).
The parties recognize that there are no universally accepted industry standards
which are commonly accepted as a standard of ordinary care and diligence for the
performance of the Services. Accordingly, CompuCredit agrees that CB&T shall be
deemed to be exercising ordinary care and diligence in the performance of the
services required of CB&T under this Agreement if CB&T follows the procedures
and practices set forth in the Manual, as such
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Manual may be revised from time to time, and complies with the Service Standards
set forth in Exhibit B.
C. TS2. CB&T will not be obligated to make available TS2 pursuant to
this Agreement. In the event CompuCredit desires to utilize TS2 such services
shall be provided by TSYS directly to CompuCredit under a separate agreement
between TSYS and CompuCredit on such terms as shall be negotiated between TSYS
and CompuCredit. CB&T will cooperate in any such conversion to TS2 as may occur
during the term of this Agreement, and in connection with any such conversion
CB&T and CompuCredit shall negotiate mutually agreeable changes in the terms of
this Agreement to reflect the elimination of processing from the Services
provided hereunder.
SECTION 2
TERM
A. Initial Term. The Initial Term of this Agreement shall commence on
August 1, 1998 and shall continue until December 31, 2001 (the "Initial Term").
B. Renewals. After the Initial Term, this Agreement shall be extended
for renewal terms of one (1) year each ("Renewal Term") unless one party
notifies the other party of its intent to terminate this Agreement at least 180
days prior to the end of the Initial Term or any Renewal Term.
C. Termination.
(1) In the event CompuCredit terminates this Agreement, then,
unless the termination is pursuant to Section 2.B or for breach pursuant to
Paragraph (3) or (4) of this Section 2.C or Exhibit C, CompuCredit shall pay a
termination fee to CB&T equaling six times the total of the Fees (defined in
Section 3 hereof) incurred for Convenience Check Processing, Credit, Application
Entry, Customer Service, Fraud/Investigations, and Collections for the calendar
month preceding termination or six times the monthly minimum servicing fee (as
provided in Exhibit A hereto), whichever is greater.
(2) CB&T may terminate this Agreement in the event CompuCredit
fails to make or adequately and timely provide for the payment of fees and
expenses due hereunder, but only if CB&T gives CompuCredit written notice of
such failure and CompuCredit fails to remedy such failure within fifteen (15)
business days after CompuCredit's receipt of said notice. Upon the expiration of
the fifteen (15) business day period provided for above, CB&T may terminate this
Agreement by giving CompuCredit written notice, which termination shall be
effective seven (7) business days after receipt of such notice by CompuCredit.
If such failure to pay is remedied by CompuCredit within such fifteen
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(15) business day period, then this Agreement shall continue as though no such
notice had been given.
The fifteen (15) business day period referred to above shall be
extended an additional five (5) business days if CompuCredit in good faith
disputes any item of fees or expenses but only if CompuCredit, within such
fifteen (15) business day period, (i) furnished to the attention of CB&T's
Senior Manager written notice specifying the fee or expense items so disputed
and the basis for the disputes and (ii) remedied all other fee and expense items
not so disputed. If, with respect to items of fees or expenses disputed in the
manner prescribed in the preceding sentence, CompuCredit fails within such five
(5) business day period to pay the same in full (or in any reduced amount which
CB&T's Senior Manager may agree to in writing during such five business day
period), then the parties hereto agree that claims related to the disputed fees
or expenses shall constitute a Dispute as such term is defined in Section 9.P
below and such Dispute shall be subject to mandatory and binding arbitration as
provided in Section 9.Q below, and that pending the outcome of such Dispute,
termination of this Agreement pursuant to this paragraph (2) shall not occur.
(3) If either party fails to observe, keep or perform any
material term or condition of this Agreement, or the Manual, required to be
observed, kept or performed by that party, the other party, in addition to any
other rights and remedies it may have, shall have the right to terminate this
Agreement without paying a termination fee; provided, however, that the party
seeking to terminate the Agreement gives the other party a written notice of
such failure claimed to be a breach of terms and conditions of this Agreement,
and the party receiving said notice fails to remedy the breach within thirty
(30) days after receipt of said notice. If the breach is not remedied by the
defaulting party within the thirty (30) day period provided for above, the
non-defaulting party may terminate this Agreement by giving the defaulting party
written notice effective immediately. If the breach is remedied by the
defaulting party within such thirty (30) day period, then this Agreement shall
continue as though no such notice had been given.
(4) In the event either party to this Agreement shall cease
conducting business in the ordinary course, become insolvent, make a general
assignment for the benefit of creditors, suffer or permit the appointment of a
receiver for its business or assets, or shall avail itself of, or become subject
to, any proceeding under the federal bankruptcy laws or any statute of any state
relating to insolvency or the protection of the rights of creditors, then at the
option of the other party hereto, the other party may terminate this Agreement
at any time upon notice of the other party.
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(5) Termination of this Agreement shall not terminate
CompuCredit's obligation to pay CB&T for all services performed and expenses
incurred under the Agreement (including pursuant to Section 2.D below), whether
before or after termination, prior to the discontinuance of performance of the
Services by CB&T hereunder.
(6) In the event that CompuCredit does not terminate this
Agreement and CompuCredit sells in excess of the greater of (i) 10% of the
Accounts (not counting any sold Account which prior to being sold was more than
60 days delinquent or was charged off in accordance with the operating
procedures) within any 12-month period; or (ii) 25,000 Accounts (not counting
any sold Account which prior to being sold was more than 60 days delinquent or
was charged off in accordance with the operating procedures) within any 12-month
period, and CB&T ceases to service such accounts, CB&T shall receive a
deconversion fee equaling six (6) times a percentage (described below) of the
total amount of Fees (as defined in Section 3 hereof) incurred for convenience
check processing, credit, application entry, customer service,
fraud/investigations, and collections for the calendar month preceding the first
sale of the Accounts. The applicable percentage for purposes of the foregoing
calculation is the number of Accounts sold during the 12-month period divided by
the total number of Accounts being serviced by CB&T during the calendar month
preceding the sale of the Accounts that would make this subsection applicable.
D. Post-Termination.
(1) Duties After Termination. Upon termination of this Agreement,
in order to preserve the goodwill of Cardholders both parties shall cooperate in
order to ensure a smooth and orderly termination of their relationship and a
transition of Cardholder Accounts. However, except as set forth below in this
Section 2.D.(1), nothing in this Agreement shall be construed as obligating CB&T
to continue to maintain and service the Accounts beyond the date of termination
unless the parties shall have entered into a mutually acceptable written
agreement covering such continuation of maintenance and services.
In the event CB&T gives notice of its intention to terminate this
Agreement, other than pursuant to Section 2.C.(2) above, CB&T shall continue to
maintain and service the Accounts and fulfill all of its obligations hereunder
until the later of (i) the date of termination specified in CB&T's notice of
termination, or (ii) 180 days after the date on which CB&T gave its notice of
termination; provided, however, that in no event shall CB&T have any obligation
to continue to maintain and service the Accounts or fulfill its obligations
hereunder
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following any failure by CompuCredit (other than a failure solely with respect
to fees or expenses that are the subject of a good faith Dispute pursuant to
Section 2.C.(2) above) to fulfill CompuCredit's obligation to pay CB&T for all
services performed and expenses incurred under the Agreement (whether before or
after termination) prior to the discontinuance of performance of the Services by
CB&T hereunder.
(2) Assistance with Conversion. Upon any termination of this
Agreement, CB&T shall provide to CompuCredit, at CompuCredit's expense, all
assistance reasonably necessary to enable CompuCredit to convert the accounts
serviced hereunder to the processing system designated by CompuCredit and shall
cooperate with CompuCredit in its efforts to effect such conversion at the
earliest practicable date.
SECTION 3
FEES
A. Servicing Fees. CompuCredit agrees to pay fees and reimburse expenses
to CB&T (collectively, "Fees") in return for the Services provided by CB&T under
this Agreement in accordance with Exhibit A. CompuCredit agrees to pay all
invoices from CB&T for such Services within thirty (30) days of receipt thereof.
So long as the Affinity Agreement (as defined in Section 9.V
below, and which is referred to in this Agreement as the "Affinity Agreement")
remains in effect, amounts specified in Exhibit A to this Agreement which are,
pursuant to the Affinity Agreement, deducted and retained by CB&T from amounts
CB&T pays to CompuCredit pursuant to the Affinity Agreement, shall, to the
extent so deducted and retained by CB&T, be deemed to have been paid to CB&T for
purposes of this Section 3.A.
B. No Further Fees. The Fees set forth in Exhibit A and other amounts
expressly provided for in this Agreement shall be deemed to include all fees and
expenses related to this Agreement, and CompuCredit shall not be required to pay
any other charges in connection herewith, except for those additional services
agreed to by CompuCredit in writing. The foregoing shall not be construed as
limiting any of CompuCredit's obligations under the Affinity Agreement.
SECTION 4
CONFIDENTIAL INFORMATION
A. Proprietary Information. CB&T and Compucredit each acknowledge that
they may be furnished with, receive, or otherwise have access to information of
or concerning the other party which such other party considers to be
confidential, proprietary, a trade secret or otherwise restricted. As used in
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this Agreement, "Confidential Information" shall mean all information, in any
form, furnished or made available directly or indirectly by one party to the
other before, on or after the date of this Agreement (and including but not
limited to such information furnished in the course of negotiating or performing
any other existing or prior agreements to which CB&T and CompuCredit are
parties), which information is confidential, restricted and/or proprietary.
B. CompuCredit Confidential Information. In the case of CompuCredit,
Confidential Information also shall include, whether or not designated
"Confidential Information", (i) all specifications, designs, documents,
correspondence, software, documentation, data and other materials and work
products provided by either CompuCredit or its affiliates or subcontractors in
connection with this Agreement, (ii) all information concerning the operations,
affairs and business of CompuCredit (including ideas, marketing plans, business
strategies, and information or data that is a trade secret or is competitively
sensitive), the financial affairs of CompuCredit and its affiliates, and the
relations of CompuCredit and its affiliates with their employees and customers
(including CompuCredit's and its affiliates' lists, information, account
information and consumer markets), (iii) software provided to CB&T by or through
CompuCredit or any of its affiliates, and (iv) other information or data
concerning CompuCredit or its affiliates and any of their business or customers
stored on magnetic media or otherwise or communicated orally, and obtained,
received, transmitted, processed, stored, archived, or maintained by CB&T under
this Agreement (collectively, the "CompuCredit Confidential Information").
C. CB&T Confidential Information. In the case of CB&T, Confidential
Information also shall include, whether or not designated "Confidential
Information", (i) all specifications, designs, documents, correspondence,
software, documentation, data and other materials and work products produced by
CB&T or its affiliates or subcontractors in the course of performing the
Services, (ii) all information concerning the operations, affairs and business
of CB&T or its affiliates (including ideas, marketing plans, business
strategies, and data or information that is a trade secret or is competitively
sensitive), the financial affairs of CB&T and its affiliates, and the relations
of CB&T and its affiliates with their employees and customers (including CB&T's
and its affiliates' lists, information, account information and consumer
markets), (iii) software provided to CompuCredit or any creditor of any of the
Accounts, by or through CB&T or any of its affiliates, and (iv) other
information or data concerning CB&T or its affiliates and any of their business
or customers stored on magnetic media or otherwise or communicated orally, and
obtained, received, transmitted, processed, stored,
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archived, or maintained by CompuCredit or any creditor of any of the Accounts
under this Agreement (collectively, the "CB&T Confidential Information").
D. Confidentiality of Agreement. Each of CB&T and CompuCredit agree that
the terms and conditions of this Agreement, including the fees for the Services
provided hereunder, are confidential. Neither CB&T nor CompuCredit shall,
without the express prior written consent of the other party, disclose such
terms and conditions (including fees) to any other person, firm or corporation;
provided, however, this Agreement, including the fees for the Services provided
hereunder, (i) may be disclosed to third parties to the extent such disclosure
is required in order to comply with any applicable law, order, regulation or
ruling, and (ii) may be disclosed by each party to such party's affiliates,
agents, representatives, external or internal auditors or independent
contractors in the course of his or her employment or engagement provided that
such recipient agrees in writing to protect such information on terms
substantially similar to those described in this Section 4 (except that
underwriters' outside attorneys in connection with any underwritten public
securities offering by CompuCredit need not sign such a writing provided they
receive such disclosure from their underwriter clients who have executed such an
agreement in writing).
E. The parties agree that:
(i) Each party's Confidential Information shall remain the
property of that party except as expressly provided otherwise by the other
provisions of this Agreement. CompuCredit and CB&T shall each use at least the
same degree of care, but in any event no less than a reasonable degree of care,
to prevent disclosing to third parties 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. Any disclosure to such
entity shall be under the terms and conditions as provided herein. Each party
may disclose the other party's Confidential Information to the receiving party's
affiliates, agents, representatives, external or internal auditors or
independent contractors in the course of his or her employment or engagement
provided that such recipient agrees in writing to protect such information on
terms substantially similar to those described in this Section 4. Each party
shall be liable for any breach of the obligations defined herein by its
respective affiliates, employees, officers, directors, agents, representatives,
external or internal auditors or independent contractors.
(ii) As requested by a party during the term of this Agreement
and upon expiration or any termination of this
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Agreement and completion of the other party's obligations under this Agreement,
such other party shall return or destroy, as the requesting party may direct,
all material in any medium that contains, refers to, or relates to the
requesting party's Confidential Information, and retain no copies (except those
necessary to comply with regulatory requirements applicable to the retaining
party).
(iii) Each party shall take reasonable steps to ensure that its
employees comply with these confidentiality provisions.
(iv) In the event of any disclosure or loss of, or inability to
account for, any Confidential Information of the furnishing party, the receiving
party shall notify the furnishing party promptly upon becoming aware thereof.
(v) In the event either party retains a consultant, after the
date of this Agreement, and desires to disclose any Confidential Information of
the other party to such consultant, then the party desiring to make such
disclosure shall first cause such consultant to execute a confidentiality
agreement with the other party named as a third party thereto.
F. Exclusions. CB&T's and CompuCredit's obligations and agreements under
this Section 4 shall not apply to any information supplied that:
(1) was known to either party prior to the disclosure by
the other, or
(2) is or becomes generally available to the public
other than by breach of this Agreement, or
(3) otherwise becomes lawfully available on a
nonconfidential basis from a third party who is not
under an obligation of confidence to either party.
(4) was independently developed by the receiving party
without reference to Confidential Information of the
furnishing party.
(5) In addition, a party shall not be considered to have
breached its obligations by disclosing Confidential
Information of the other party as required to
satisfy any legal requirement of a competent
government body provided that, immediately upon
receiving any such request and to the extent that it
may legally do so, such party advised the other
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party prior to making such disclosure in order that
the other party may interpose an objection to such
disclosure, take action to assure confidential
handling of the Confidential Information, or take
such other action as it deems appropriate to protect
the Confidential Information.
Notwithstanding the foregoing, each CompuCredit list containing
the names, addresses and/or telephone numbers of CompuCredit Card cardholders
shall be deemed Confidential Information owned by CompuCredit; provided,
however, that this provision shall not prohibit any transfer, sale or disclosure
of the name, address or telephone number of, or any solicitation of, any person
of whose existence CB&T has or obtains knowledge otherwise than by reason of
CB&T's participation in this Agreement.
G. CB&T acknowledges CompuCredit's interest in keeping CompuCredit
Confidential Information (including its business practices) confidential.
CompuCredit acknowledges CB&T's and its affiliates' and subcontractors' need to
efficiently respond to requests from any of their other existing or future
customers (hereinafter "Third Party Customers"), some of which may be
CompuCredit's competitors, to implement methods, practices or functionality that
may compete with CompuCredit and which may be similar or identical to methods,
practices or functionality developed by CB&T or its affiliates or subcontractors
for CompuCredit. CompuCredit also acknowledges CB&T's need, in its own card
issuing business, to implement such methods, practices or functionality.
Accordingly, it is agreed that CB&T will keep confidential all CompuCredit
Confidential Information relating to CompuCredit's business practices to the
extent required under this Section 4, provided, however, that unless otherwise
specifically agreed to by CB&T in writing, CB&T and its affiliates and
subcontractors may implement such methods, practices or functionality, including
code, to meet the business needs of any Third Party Customers or CB&T's own
business needs.
H. The terms of this Section 4 shall survive any expiration or
termination of this Agreement.
SECTION 5
USE OF NAMES AND TRADEMARKS
A. CompuCredit hereby authorizes CB&T, during the term of this
Agreement, on a non-exclusive, non-assignable basis, to use CompuCredit's name
and such trademarks of CompuCredit, including, without limitation, the "Aspire"
servicemark, as may be necessary in connection with the Services provided under
this Agreement (the "CompuCredit Credit Card Marks"), in the forms and formats
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approved by CompuCredit, in various communications to cardholders with respect
to the CompuCredit Cards.
B. CB&T hereby authorizes CompuCredit, during the term of this
Agreement, on a non-exclusive, non-assignable basis, to use CB&T's name and such
trademarks of CB&T as may be used in connection with the Services provided under
this Agreement (the "CB&T Credit Card Marks"), in the forms and formats approved
by CB&T, in communications to CompuCredit Card cardholders with respect to the
CompuCredit Card accounts serviced pursuant to this Agreement.
C. Except as otherwise provided herein, neither party shall use the
registered trademarks, service marks, logo, name or any other proprietary
designations of the other party without such other party's prior written
consent. Each party shall submit to the other party for prior approval any
advertising or promotional materials relating to the services provided under
this Agreement in which such trademarks are to be used, and/or for any materials
that will be provided to the cardholders of the CompuCredit Cards pursuant to
this Agreement in which such trademarks are to be used, which approval shall not
unreasonably be withheld or delayed.
SECTION 6
INDEMNIFICATION
A. Except to the extent of any Losses (as herein defined) which arise
from the direct acts or omissions of CB&T or any agent, subcontractor or
affiliate of CB&T, CompuCredit will indemnify and hold harmless CB&T and its
affiliates, and each of their directors, officers, employees, agents and
permitted assigns from and against any and all "Losses" (as herein defined)
arising out of (i) any failure of CompuCredit or any creditor of any of the
Accounts, or of any of CompuCredit's or any such creditor's agents, affiliates
or subcontractors, to comply with any of the terms and conditions of this
Agreement; (ii) any inaccuracy of a representation or warranty made by
CompuCredit herein; (iii) any infringement or alleged infringement on the rights
of any third party by use of any of the CompuCredit Credit Card Marks, or the
use thereof hereunder; (iv) information provided to CB&T or any of its
affiliates by CompuCredit or any creditor of any of the Accounts or by officers,
employees, agents, affiliates or subcontractors of CompuCredit or any such
creditor, or arising out of the use of such information when furnished by CB&T
to CompuCredit or any such creditor, to merchants affiliated with CompuCredit or
any creditor of any of the Accounts, or to other third persons at CompuCredit's
request, or to officers, employees, agents, affiliates or subcontractors of any
of the foregoing, provided such Losses did not arise from the negligent act or
omission of CB&T or any agent, affiliate or
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subcontractor of CB&T, and provided that CB&T or any agent, affiliate or
subcontractor of CB&T did not incorrectly manipulate the data and/or information
presented by or to CB&T or any agent, affiliate or subcontractor of CB&T; (v)
negligent acts or omissions of CompuCredit or any creditor of any of the
Accounts, or either of their officers, employees, agents, affiliates and
subcontractors, in the performance of their duties and obligations under this
Agreement; (vi) CB&T's delivery to or receipt from any credit bureau of any
information for or on behalf of CompuCredit or any creditor of any of the
Accounts and/or in connection with any actions taken by any credit bureau which
results in any alleged, threatened or actual violation of the Fair Credit
Reporting Act, provided such Loss did not arise from CB&T's or any of its
agents', subcontractors' or affiliates' negligence in the delivery to or receipt
of such information from the credit bureau or from CB&T's failure, or the
failure of any of CB&T's agents, affiliates or subcontractors, to comply with
Directions which CompuCredit provided to CB&T pursuant to Section 9.G; (vii) the
failure of CompuCredit or any creditor of any of the Accounts to comply with the
applicable rules and regulations of MasterCard or Visa or the failure of
CompuCredit or any such creditor to otherwise discharge its settlement
obligations with MasterCard or Visa; or (viii) a failure of CompuCredit or any
creditor of any of the Accounts, or of any agents, affiliates or subcontractors
of CompuCredit or any such creditor, to comply, in connection with the Program
hereunder, with any applicable laws or regulations.
B. Except to the extent of any Losses which arise from the direct acts
or omissions of CompuCredit or any creditor of any of the Accounts or any agent,
subcontractor or affiliate of CompuCredit or any such creditor, CB&T will
indemnify and hold harmless CompuCredit and its affiliates, and each of their
officers, directors, employees, agents, and permitted assigns from and against
any Losses (as herein defined) arising out of (i) any failure of CB&T or any of
its agents, affiliates or subcontractors to comply with any of the terms and
conditions of this Agreement; (ii) any inaccuracy of a representation or
warranty made by CB&T herein; (iii) any infringement or alleged infringement on
the rights of any third party by use of the CB&T Credit Card Marks, or the use
thereof hereunder; (iv) information provided to CompuCredit or any creditor of
any of the Accounts by CB&T or by officers, employees, agents, affiliates or
subcontractors of CB&T, provided such Losses did not arise from the negligent
act or omission of CompuCredit or any such creditor, or any agent, affiliate or
subcontractor of
13
CompuCredit or of any such creditor, and provided that CompuCredit or any such
creditor, or any agent, affiliate or subcontractor of CompuCredit or any such
creditor, did not incorrectly manipulate the data and/or information presented
by or to CompuCredit or any such creditor, or any agent, affiliate or
subcontractor of CompuCredit or any such creditor, and further provided that
such Losses did not arise from information which, though provided as aforesaid,
was originally received from CompuCredit or any such creditor of any of the
Accounts or from any agent, affiliate or subcontractor of CompuCredit or any
such creditor, or from any merchant, credit bureau, cardholder or any other
source (other than CB&T or CB&T's agents, affiliates or subcontractors); (v) the
failure by TSYS to comply with the rules and regulations of MasterCard or Visa
applicable to TSYS as a third party provider of processing services; (vi) the
failure by CB&T to comply with the applicable rules and regulations of
MasterCard or Visa; (vii) negligent acts or omissions of CB&T, its officers,
employees, agents, affiliates and subcontractors, in the performance of CB&T's
duties and obligations under this Agreement; or (viii) a failure of CB&T, its
agents, affiliates or subcontractors to comply, in respect of its obligations in
connection with the Program hereunder, with any applicable laws or regulations.
C. For the purposes of this Section 6, the term "Losses" shall mean all
out-of-pocket costs, damages, losses, and expenses whatsoever, including,
without limitation; (i) reasonable and actual outside attorneys' fees and
disbursements and court costs incurred by the indemnified party; and (ii) costs
(including reasonable expenses and reasonable value of time spent) attributable
to the necessity that any officer or employee (other than in-house attorneys) of
any Indemnified Party spending more than 25% of his or her normal business
hours, over a period of two (2) months, in connection with any judicial,
administrative, legislative, or other proceeding arising out of the obligations
or services provided hereunder by such party, including, without limitation, any
claim that a party hereto has failed to obtain any permission or license to use
any software utilized in the performance of this Agreement.
D. For the purpose of performing its obligations under this Agreement,
CB&T shall be entitled to rely upon and use any and all information, data and
instructions at any time submitted to CB&T or any of its affiliates by
CompuCredit or any creditor with respect to any of the Accounts, merchants or by
VISA and/or MasterCard and having to do with CompuCredit or the Accounts, and
neither CB&T nor any of its affiliates shall have any responsibility or
liability whatsoever for the accuracy or inaccuracy thereof, for the wording or
text authored or submitted by CompuCredit or any such other persons for the
mailers or periodic statements to be furnished pursuant to this Agreement or for
other purposes, for the wording or text appearing on any forms, bankcards or
other materials furnished to CB&T or its affiliates by CompuCredit or by any
such other persons, or for whether or not such information, data, instruction,
wording or text complies with applicable laws and regulations.
14
E. In no event shall CB&T or any of its affiliates be liable with
respect to any loss, liability, cost, damage or expense arising from any loss,
theft, disappearance of or damage to plastic bankcards, mailers, periodic
statements, reports or other tangible items produced by CB&T or its affiliates
that occurs after the UNITED STATES POSTAL SERVICE, or any courier service
receives such items from CB&T or such affiliate for the purpose of delivery to
CompuCredit, to any cardholders or prospective cardholders with respect to the
Accounts, or to other third parties upon CompuCredit's instructions, provided
such loss, theft, disappearance of or damage to such items did not arise from
the negligent or willful act or omission by CB&T or any of its affiliates. CB&T
shall only use a courier service with a national reputation for prompt, reliable
and secure delivery to transport plastic bankcards, mailers, periodic
statements, reports or other materials of CompuCredit.
F. In no event shall CB&T or any of its affiliates be liable with
respect to any loss, liability, cost, damage or expense arising from any loss,
theft, disappearance of or damage to data transmitted by dataline or other means
of electronic transmission that occurs during such transmission, provided that
such loss, disappearance or damage to such transmitted data is not the result of
a negligent or willful act or omission of CB&T or any such affiliate.
G. [Intentionally Omitted]
H. CompuCredit and CB&T agree to randomly check information produced by
CB&T or its affiliates to determine if such information is correct, and will
promptly report any errors discovered therein to the other party. The steps
which CB&T takes to remedy the error, as described above, shall be at no cost to
CompuCredit where such error results from the sole negligence of CB&T or any of
its affiliates or the failure of CB&T or any of its affiliates to otherwise
comply with the terms of this Agreement. Otherwise, CompuCredit shall pay CB&T
for its efforts to remedy the error in accordance with the terms of this
Agreement. CB&T will promptly take all commercially reasonable steps to remedy
any error and issue correcting information. In no event shall CB&T or any of its
affiliates be liable with respect to any loss, liability, cost, damage or
expense caused by any failure by CB&T to perform hereunder not reported by
CompuCredit to CB&T within ninety (90) days from the time when the first
occurrence of such failure to perform is discovered or known by CompuCredit or
any creditor of the Accounts.
If either CompuCredit or CB&T discovers any actual error in
output information CB&T produces, it shall promptly notify the other party of
the discovery. CB&T shall cooperate with CompuCredit's investigation of the
source of the error.
15
CB&T shall promptly take all commercially reasonable steps to remedy the error
and issue correcting information. The steps which CB&T takes to remedy the
error, as described above, shall be at no cost to CompuCredit where such error
results from the sole negligence of CB&T or its affiliates or subcontractors or
the failure of CB&T or its affiliates or subcontractors to otherwise comply with
the terms of this Agreement. The steps which CB&T takes to remedy the error, as
described above, shall be at CompuCredit's expense where such error results from
the sole negligence of CompuCredit and/or any creditor of any of the Accounts
and/or any affiliate or subcontractor of CompuCredit or any such creditor. Where
the error results from the negligence of both (i) CB&T and/or any affiliate or
subcontractor of CB&T, and (ii) CompuCredit and/or any creditor of any of the
Accounts and/or any affiliate or subcontractor of CompuCredit or any such
creditor, the parties shall, in accordance with the dispute resolution
procedure, negotiate in good faith to equitably apportion the responsibility for
such error.
I. In no event shall CB&T or any of its affiliates or subcontractors be
liable with respect to any loss, liability, cost, damage or expense arising out
of a claim by CompuCredit or any creditor with respect to any of the Accounts or
any other third parties, in connection with the data, computations and services
provided and/or performed by CB&T or any of its affiliates or subcontractors
hereunder to the extent such data, computations and/or services as to which the
claim arises were provided and/or performed in accordance with: (i)
CompuCredit's or any such creditor's written requirements and/or instructions in
such regard, including, but not limited to, CompuCredit's or such creditor's
memoranda, data entry instructions or computer field instructions; or (ii)
CompuCredit's or any such creditor's written concurrence that such data,
computations and services provided or performed or to be provided or performed
comply with CompuCredit's or such creditor's previously communicated
requirements and/or instructions in such regard. If CB&T discovers that
CompuCredit's or any such creditor's communicated requirements and/or
instructions referred to in subparagraphs (i) or (ii) above have caused or
resulted in an error, CB&T agrees to promptly notify CompuCredit of such error.
J. In no event shall either party be liable for special or punitive
damages arising from either party's failure to comply with any of the terms of
this Agreement.
K. Excluding breaches of confidentiality as defined in Section 4 of this
Agreement, intentional acts or omissions, CB&T's liability for the financial
penalties specified in Exhibit C, and CompuCredit's liability for fees, expenses
(identified as pass-through expenses on Exhibit A) and/or termination fees
hereunder, the liability of either party (or its affiliates)
16
hereunder to the other party or to any party claiming by, through or under the
other party, shall be limited in the aggregate for the Initial Term and for all
subsequent Renewal Term(s) of the Agreement to eight (8) times the "Average
Monthly Billing" as defined hereinbelow.
For purposes of this paragraph, Average Monthly Billing shall be
determined by the average of the twelve (12) months xxxxxxxx of Fees, as defined
in Exhibit A (excluding expenses) actually paid by CompuCredit to CB&T for
providing the Services computed over the twelve (12) month period ending on the
last day of the month immediately preceding the month in which the liable party
first receives notice from the other party or otherwise becomes aware of the
claim which causes the party's liability to the other party hereunder, or if
this Agreement has not then been in effect for twelve (12) months, then such
average shall be computed over such fewer months that this Agreement has been in
effect.
L. (a) Subject to the limit of liability set forth in Section 6.K above,
CB&T agrees to defend, indemnify, and hold harmless CompuCredit and its
directors, officers, employees, affiliates, independent contractors and agents
from and against all loss, cost, damage or expense (including reasonable and
actual attorney fees and related expenses and costs incurred), arising out of
any claim or allegation that any hardware, software or system used by CB&T or
its affiliates or subcontractors of CB&T or any such affiliates in providing the
Services hereunder infringes a patent or copyright or any trade secret or other
intangible property right of any third party except to the extent such claim
arises from the development of any hardware, software or system by CB&T or its
affiliates or subcontractors to support an enhancement or modification requested
by CompuCredit.
(b) Subject to the limit of liability set forth in Section 6.K
above, CompuCredit agrees to defend, indemnify and hold harmless CB&T and its
directors, officers, employees and affiliates, independent contractors and
agents from and against all loss, cost, damage or expense (including reasonable
and actual attorney fees and related expenses and costs incurred), arising out
of any claim or allegation that any hardware, software or system used by
CompuCredit or any creditor of any of the Accounts or any affiliate or
subcontractor of CompuCredit or any such creditor in the operation of
CompuCredit's business or the business of any creditor with respect to any of
the Accounts infringes a patent or copyright or any trade secret or other
intangible property right of any third party.
17
(c) With respect to any claim or allegation giving rise to
indemnification under Section 6.L(a) or (b) above, each party shall:
(i) advise the other, as promptly as practicable, of any
suit, claim, proceeding or loss;
(ii) cooperate in all reasonable ways with the other in
the defense of such suit, claims or proceeding; and
(iii) have sole control of the defense of legal action
involving a third party suit, claim or proceeding and of all negotiations for
its settlement or compromise but shall not settle any such claim in a manner
creating any liabilities or duty for the other party without its prior written
consent, which consent shall not be unreasonably withheld.
(d) If any hardware, software or system ("Material") for which a
party has indemnification obligations under Section 6.L(a) or (b) ("Indemnifying
Party"), in the Indemnifying Party's opinion is likely to become or does become
the subject of a claim of infringement or misappropriation of a patent,
copyright or any trade secret or other intangible property right of any third
party, or if a temporary restraining order or other injunctive relief is entered
against the use of part or all of the Material, the Indemnifying Party,in
addition to its obligations set forth above, shall either promptly replace the
Material with compatible functionally equivalent non-infringing Material; or, at
such Indemnifying Party's option:
(i) Promptly modify the Material to make them
non-infringing; provided, however, where CB&T is the Indemnifying Party under
Section 6.L(a) above such modification shall not impair CompuCredit's ability to
use the Material as intended and in accordance with the Service Standards
provided for in Section 1.B(1) above; or,
(ii) promptly procure the right to continue using the
portions of the Material enjoined from use; or
(iii) if either remedy is not available on a commercially
reasonable basis, either party may terminate this Agreement, in whole or in part
as to the affected component of the Material, and, subject to the limit of
liability set forth in Section 6.K above, the party being indemnified shall be
entitled to all costs, damages and expenses incurred as a result, including
(without limiting the generality of the foregoing), where CB&T is the
Indemnifying Party under Section 6.L(a) above those costs associated with
replacing the infringing Material with comparable Material from a third party.
18
(iv) This Section 6.L sets forth the exclusive remedy of
the parties with respect to any action or claim for alleged infringement by any
Material for which a party has indemnification obligations under Section 6.L(a)
or (b), of any patent, copyright, or any trade secret or other intangible
property right of any third party.
M. Force Majeure/Disaster Recovery. In no event shall CB&T or
CompuCredit be liable with respect to the failure of its duties and obligations
under this Agreement (other than an obligation to pay money) which is
attributable to acts of God, war, conditions or events of nature, civil
disturbances, work stoppages, power failures, fire, or other events beyond its
reasonable control, unless the failure to perform such duties and obligations is
a result of CB&T's failure to maintain disaster recovery capabilities in
accordance with the following sentence and to periodically ensure the
effectiveness of same. CB&T covenants and agrees to maintain and retain
throughout the term of this Agreement off-site disaster recovery capabilities
substantially in accordance with the plan attached hereto as Exhibit "D". CB&T
agrees to provide a copy of its disaster recovery plan to CompuCredit.
CompuCredit acknowledges that CB&T may amend such plan from time to time in its
sole discretion provided that the covenant above is not violated. CB&T agrees to
test the operation and effectiveness of such plan on an annual basis to ensure
its effectiveness in providing disaster recovery capability.
N. Insurance. CB&T agrees to maintain during the term of this Agreement
reasonable amounts of business insurance insuring against perils such as fire
and theft.
O. The provisions of this Section 6 shall survive any expiration or
termination of this Agreement.
SECTION 7
NOTICES
A. Any written notice required or permitted to be given by CompuCredit
to CB&T hereunder shall be addressed to:
COLUMBUS BANK AND TRUST COMPANY
Attention: BankCard Center Manager
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
-OR-
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
19
and any written notice required, or permitted to be given by CB&T to CompuCredit
under this Agreement shall be addressed to:
COMPUCREDIT, CORPORATION
Attention: Chief Financial Xxxxxxx
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
B. All written notices provided for hereunder shall be delivered in
person, sent by courier, sent by certified mail with a return receipt requested,
sent by nationally recognized overnight delivery service, or transmitted by
facsimile (with oral confirmation of receipt) and shall be effective when
delivered or received. The parties to this Agreement, by notice in writing, may
designate another address or office to which notices shall be given pursuant to
this Agreement.
SECTION 8
[Intentionally Omitted]
SECTION 9
ADDITIONAL PROVISIONS
A. Nothing herein contained shall be construed as constituting a
partnership, joint venture or agency between CompuCredit and CB&T.
B. This Agreement shall not be assignable in whole or in part by either
party without the other party's prior written consent, except that such consent
shall not be required for the assignment of this Agreement to an entity that is
an affiliate of the assigning party (which assignment shall not relieve the
assigning party of any obligation hereunder). However, upon notice to
CompuCredit, CB&T may sub-contract with other entities with respect to the
provision of the Services hereunder, but no such subcontracts shall alter
CompuCredit's rights against CB&T under this Agreement.
C. Each party to this Agreement hereby represents and warrants to the
other that it has the corporate power and authority to enter into and perform
this Agreement in accordance with all the terms, provisions, covenants and
conditions hereof, and that the execution and delivery of this Agreement has
been duly authorized by proper corporate action.
D. Any delay, waiver, or omission by CompuCredit or CB&T to exercise any
right or power arising from any breach or default of the other party in any of
the terms, provisions, or covenants of this Agreement shall not be construed to
be a waiver of any
20
subsequent breach or default of the same or any other terms, provisions or
covenants on the part of the other party.
E. CB&T represents and warrants that to the best of its knowledge any
media used to render the Services and which were generated by CB&T or its
affiliates contain no computer instructions, circuitry or other technological
means whose purpose is to disrupt, damage, or interfere with CompuCredit's use
of its computer and telecommunications facilities for their commercial, test, or
research purposes.
Compucredit represents and warrants that to the best of its
knowledge any media used in conjunction with the Services and which were
generated by CompuCredit or any creditor of the Accounts, or either of their
affiliates, contain no computer instructions, circuitry or other technological
means whose purpose is to disrupt, damage, or interfere with CB&T's or its
affiliates' use of their computer and telecommunications facilities for their
commercial, test, or research purposes.
F. [intentionally omitted]
G. (1) The provisions of this Section 9.G shall become effective
upon the termination of the Affinity Agreement.
(2) CompuCredit is solely responsible for monitoring and
interpreting (and for complying with, to the extent such compliance requires no
action by CB&T) the federal and state laws, rules and regulations and the VISA
and MasterCard rules and regulations pertaining to CompuCredit's business or to
the business of any creditor with respect to any of the Accounts ("Legal
Requirements"). CompuCredit is responsible for selecting the parameter settings
and programming features and options within CB&T's processing system that will
apply to CompuCredit's card programs and for determining that such selections
are consistent with the Legal Requirements and with the terms and conditions of
the various agreements between CompuCredit and the cardholders and obligors
under the Accounts. In making such determinations, CompuCredit may rely on the
written descriptions of such settings, features and options in CB&T's user
manuals, customer bulletins and other system documentation and advice provided
by CB&T. With respect to its obligations under this paragraph, CompuCredit will
provide CB&T directions based on its interpretation of the Legal Requirements
and its selection of parameter settings and programming features and options
(the "Directions"). CB&T shall perform the Services in a manner that complies
with the Directions of CompuCredit.
(3) CB&T is solely responsible for compliance with: (1)
MasterCard and VISA rules and regulations applicable to CB&T as a third party
provider of processing services, and (2) subject to the paragraph above, all
laws, rules and regulations
21
applicable to the conduct of CB&T's business as a third party provider of
processing services.
H. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their representatives and their respective successors
and assigns.
I. This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof; provided, however, that there may
be separate written agreements signed by both parties from time to time which
serve to augment certain of the provisions contained herein. No modification or
amendment of this Agreement shall be effective unless and until set forth in
writing and signed by both parties hereto.
J. This Agreement shall be governed in all respects by and construed in
accordance with the laws of the State of Georgia.
K. Except as otherwise specifically provided in this Agreement, all
parties shall pay their own costs and expenses in connection with this Agreement
and the transactions contemplated hereby, including, without limitation, all
regulatory fees, attorneys' fees, accounting fees and other expenses.
L. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original for all purposes and all of which shall be
deemed, collectively, one agreement, but in making proof hereof it shall not be
necessary to exhibit more than one.
M. CB&T represents and warrants that it has, or will have on or before
October 18, 1998, all of the necessary facilities and personnel to provide the
Services at the volume levels shown in the Projections in accordance with the
terms of this Agreement; that it shall perform its obligations hereunder at all
times and in all respects in accordance with all material applicable federal,
state and local laws and regulations; and that it will perform its obligations
hereunder in a timely manner and with due care.
N. In the event that applicable federal, state or local laws, rules or
regulations, or the manner in which they are or may be interpreted, prevents, or
threatens to prevent, the provision of any aspect of the Services or increases,
or threatens to increase, CB&T's compliance burdens or costs associated with the
provision of any aspect of the Services, whether with regard to all or a portion
of the CompuCredit Cards or Accounts, then CB&T shall have the right at its
option and upon notice to CompuCredit to either (i) require that the procedures
followed by CB&T be changed as CB&T may deem advisable with any resulting
changes in the pricing and other provisions
22
hereof to be as mutually agreed upon by the parties, or (ii) to eliminate from
the Services those aspects of the Services as CB&T may deem advisable, either
entirely, or with regard to a portion of the CompuCredit Cards or associated
accounts or prospective accounts. CB&T will only refuse to offer Services under
the foregoing provision of this Section 9.N which CB&T uniformly refuses to
offer to all other CB&T credit card clients.
O. [Intentionally Omitted]
P. Informal Dispute Resolution. Any controversy or claim between CB&T or
its affiliates and CompuCredit or its affiliates or any creditor with respect to
any of the Accounts, 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 ("Dispute")
shall be resolved as follows:
(a) Upon written request of either CB&T or CompuCredit, alleging
in such request the nature or subject matter of the controversy or claim, the
parties will appoint a designated representative of corporate officer ranking,
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;
provided, however, that this Section 9.P 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.
Q. Arbitration. If the parties are unable to resolve any Dispute as
contemplated by Section 9.P above, such Dispute shall be submitted to mandatory
and binding arbitration at the election of either party (the "Disputing Party").
Except as otherwise
23
provided in this Section 9.Q, the arbitration shall be pursuant to the
Commercial Arbitration Rules of the American Arbitration Association (the
"AAA").
(a) 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 (10) years, (b)
is not then an employee of CompuCredit, CB&T, any creditor with respect to any
of the Accounts, or any of their affiliates, 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 headed 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.
(b) The arbitration hearing shall be held in such neutral
location as the parties may mutually agree, and if the parties are unable to
agree, then such location shall be in Atlanta, Georgia. The Arbitration Panel is
specifically authorized to render partial or full summary judgment as provided
for in the Federal Rules of Civil Procedure. 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 arbitration proceedings shall be
deemed to be information subject to the confidentiality provisions of this
Agreement. The Arbitration Panel will not have power or 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
24
or disregard any provision of this Agreement, including, without limitation, the
provisions of this Section. The Arbitration Panel shall have the authority to
establish its own jurisdiction.
(c) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section 9.Q, 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 9.Q(a)
above. Each such replacement arbitrator shall satisfy the Basic Qualifications.
If an arbitrator is replaced pursuant to this Section 9.Q after the arbitration
hearing has commenced, then a rehearing shall take place in accordance with the
provisions of this Section 9.Q and the Commercial Arbitration Rules of the AAA.
(d) 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 findings 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.
(e) 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.
(f) 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.
(g) Each party will bear a pro rata of all fees, costs and
expenses of the arbitrators, and notwithstanding any law to the contrary, each
party will bear all 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 enforce any award rendered
by the Arbitration Panel, the prevailing party in such a proceeding will be
entitled to recover reasonable and actual attorneys' fees and expenses incurred
in connection with such proceedings, in addition to any other relief to which it
may be entitled.
25
R. Proceedings in Dispute Resolution. Notwithstanding any other
provisions of this Agreement to the contrary, this Agreement may not be
terminated on the basis of a default hereunder if such default is in formal
proceedings for the resolution of a dispute pursuant to Section 9.P or such
dispute is submitted for arbitration pursuant to Section 9.Q. Nothing in this
Section 9.R shall require a party to continue performing under this Agreement if
doing so would cause a continuing violation of applicable law.
S. [Intentionally Omitted]
T. CB&T warrants that the arrival of January 1, 2000 will not cause
CB&T's software or the software of any affiliate or subcontractor of CB&T used
in performing the Services to inaccurately calculate, compare and sequence date
data; provided, however, that the foregoing warranty shall not apply to any
failure attributable to any failure of (i) any software used by CompuCredit or
any creditor of any of the Accounts (or any affiliate or subcontractor of
CompuCredit or any such creditor), or (ii) any software provided to CB&T or any
affiliate or subcontractor of CB&T by CompuCredit or any such creditor (or any
affiliate or subcontractor of CompuCredit or any such creditor) or (iii) any
software which CompuCredit or any such creditor (or any affiliate or
subcontractor of CompuCredit or any such creditor) selects or otherwise
specifies or directs be used by CB&T or any affiliate or subcontractor of CB&T
in performing the Services. Notwithstanding the previous sentence, in no event
shall CB&T or any affiliate or subcontractor of CB&T be deemed to have breached
this warranty where CompuCredit's failure to use any such software in accordance
with the Manuals or other written operating materials caused such software to
inaccurately calculate, compare or sequence date data.
With regard to periodic reports, other periodic statistical data
and any other reports which CB&T is obligated to furnish CompuCredit pursuant to
this Agreement relating to the Services to be provided by CB&T hereunder: (a)
CB&T will maintain information systems which are adequate to generate reliable
periodic reports and other periodic statistical data relating to the Services to
be provided by CB&T hereunder and will make necessary modifications, if any, of
current systems relating to the generation of reliable periodic reports relating
to the Services in the Year 2000 and thereafter; (b) CB&T shall promptly notify
CompuCredit of any systems failure and shall advise CompuCredit of the estimated
time required to remedy such systems failure and of the estimated date on which
such periodic reports, such other periodic statistical data or any such other
reports can be delivered; (c) until a systems failure is remedied, CB&T (i) will
furnish to CompuCredit such periodic status reports and other information
relating to such systems
26
failure as CompuCredit may reasonably request and (ii) will promptly notify
CompuCredit if CB&T believes that such systems failure cannot be remedied by the
estimated date, which notice shall include a description of the circumstances
which gave rise to such delay, the action proposed to be taken in response
thereto, and a revised estimate of the date on which such periodic reports, such
other periodic statistical data or any such other reports can be delivered; and
(d) CB&T shall promptly notify CompuCredit when a systems failure has been
remedied.
U. It is understood and agreed that the Fees provided for in this
Agreement are exclusive of any and all applicable sales taxes, use taxes, ad
valorem taxes, property taxes or any similar tax or assessment by some other
name or designation, and including any interest or penalties thereon (to the
extent such interest or penalties result from the act or omission of CompuCredit
or any creditor of any of the Accounts or from any change in structure or
operations by CompuCredit or any such creditor or relate to any retroactive
application of any new tax or assessment or of any changed or new interpretation
of any existing tax or assessment), which may be levied upon or assessed by any
governmental or taxing jurisdiction in connection with the performance of
Services hereunder for CompuCredit or the provision to CompuCredit, at the
request or direction of CompuCredit, of any equipment necessary for the
performance of Services hereunder for CompuCredit, and exclusive of any expenses
which expenses, by the express terms hereof, are to be paid by CompuCredit. In
the event of the payment of or for any such tax, assessment or expense by CB&T
for CompuCredit or for any creditor of any of the Accounts, CompuCredit shall in
turn pay CB&T for such items. CB&T shall be responsible for any tax liability
based on CB&T's net income, capital stock or net worth, or any tax based on
CB&T's entire corporate gross receipts.
V. Nothing in this Agreement shall be construed as obligating CB&T to
act, or to continue acting, in the capacity of a card issuer or creditor with
respect to any of the Accounts, or to extend any credit with respect to, or to
own or retain ownership of any interest in, any of the Accounts (it being
understood that any such obligations arise solely pursuant to the Affinity
Agreement).
Nothing in this Agreement shall be construed as relieving either
party of any rights and obligations, including but not limited to
indemnification and confidentiality obligations, it may have under any other
existing or prior agreements to which CB&T and CompuCredit are or were parties,
including but not limited to the Affinity Card Agreement, dated as of January 6,
1997, as amended ("Affinity Agreement").
27
W. In the event of any inconsistency between any of the provisions of
this Agreement and any of the provisions of Sections 6, 7 and 9 the Amendment
dated March 26, 1998 to the Affinity Agreement, the provisions of such Sections
6, 7 and 9 of said Amendment to the Affinity Agreement shall control to the
extent of such inconsistency.
28
IN WITNESS WHEREOF, each of the parties has caused this agreement to be
executed on its behalf by its duly authorized officers as of the day, month and
year first above written.
COMPUCREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: CFO
------------------------------
COLUMBUS BANK AND TRUST COMPANY
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Senior V.P.
------------------------------
29
EXHIBIT "A"
ASPIRE
Card Servicing
Pricing Page One
CATEGORY SERVICES PROVIDED FEE BASIS RATE
----------------- ------------------------------------------------- -------------------- ----------------------------------------
Account
Services
Project Accounts Billed *[material omitted]
Management - Primary liaison with Aspire (monthly)
- Manages and coordinates all projects
with TSYS, Synovus Data and LMI
- Manages problem/issue research and
resolution as related to program
Accounting - Daily settlement of cardholder transactions,
VISA charges and service billing and daily
access to the RMS system
- Rejected items researched and resolved
- Maintenance of a Business Bank Account to
facilitate daily settlement with Visa that
has overdraft allowance provisions
Training
- New hire training on Aspire program
components
- Training of all BankCard employees on
special solicitations
- Training of all BankCard employees on new
product features or changes
- Random surveys of cardholders on quality of
service
- Quality Assurance program including:
- Call monitoring
- "Mystery Shopping"
- Employee Evaluations and Coaching
and Counseling programs
Systems and
Technology - Selection and installation of systems and
software to support and enhance the service
level of Partnership Card Services
- Development of workflow programs to increase
service quality to cardholders
VRU Access
- 24 x 7 availability Per call completed $ .40
- transactions available include, but not within VRU
limited to:
- last five transactions
- balance
- payment due date
- minimum payment amount due
- last deposit amount
Convenience - Check processing and clearing through per item $ .25
Check processing Federal Reserve
- Rejected checks reviewed
Credit - Back-end credit review Per application $3.00
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 406 of the Securities Act
of 1933.
ASPIRE
Card Servicing
Pricing Page Two
CATEGORY SERVICES PROVIDED FEE BASIS RATE
----------------- ----------------------------------------------- ------------------------ --------------------------------------
Application - Data entry of application information Per Application $ 1.50 per keyed application
Entry received through mail, telemarketing or $ .94 per in-bound telemarketing
direct transmission call
- Inbound telemarketing processing
Customer Service - Customer inquiries handled through Per call/contact *[material omitted]
e-mail, mail or phone.
- Phone access available 8 a.m. unti
midnight seven days a week.
- 24 x 7 phone access available by 1-1-99
- General Information
- "Statements not received" research
- Billing Error Resolution
- Line Increases
- Reinstatements / reissue
- Address Changes
- Chargeback requests researched and
processed through network
- Account closures
- Credit Balance refunds
- Credit Life Insurance management
Fraud / - Contacts customer by phone for verbal
Investigations verification of suspicious activity Per contact $2.75
- If unable to contact customer a
computer generated letter is sent out Per lost/stolen case $5.35
- If fraud is identified the account is
statused "fraud" Per payment -
- Services performed on fraudulent convenience check $3.00
activity and or accounts coded lost review
or stolen:
1. Cardholder adjustments Per hour for
2. Affidavit processing investigation work - $85.00
3. Retrieval request processing approved by
4. Chargeback monitoring and initiation CompuCredit
5. Fraud and counterfeit reporting
6. Investigations
7. Account reconciliation
8. Report monitoring
9. Merchant referral calls - including code
10
Collections - Accounts with following status' will be Per account loaded
worked in collections: into dialer with valid *[material omitted]
-delinquent phone numbers(s)
-over-limit
- Mosaix predictive dialer
- Skip Tracing
- User prioritization
Information Customized reports generated through Total Per hour $75.00
Support Access
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 406 of the Securities Act
of 1933.
ASPIRE
Card Servicing Pricing
Page Three
CATEGORY SERVICES PROVIDED FEE BASIS RATE
----------------- ----------------------------------------------- ------------------------ --------------------------------------
Customized New systems/services not defined will be Quoted on a project basis
Projects subject to additional pricing
Pass through - TSYS charges
Expenses - Credit Bureau charges
- Metro Net
- Travel (if required for training purposes)
- Visa Quarterlies
- Base Fees
- Tel com charges
Monthly $10,000 monthly servicing fee
Minimum
EXHIBIT "B"
ASPIRE
Performance Standards Page One
Standards apply for services that are completed by
the initial operator responsible for the service.
Those items that procedures require CB&T to elevate
to a supervisor or forwarded to CC will be waived
from the standards.
Description: Standard:
Customer Service Inbound
Calls:
Answer *[material omitted] of calls offered answered within
Rate/Service 20 seconds monthly and no more than four (4) days in
Level: one month will be answered at a rate less than 75%
within 20 seconds
Abandon Rate: Shall not exceed 5.00% monthly and no more than four (4)
days will exceed an 8.00% abandon rate in a month
Collections Inbound Calls: Only available on calls dialed direct to collections
Answer *[material omitted] of calls offered answered within
Rate/Service 20 seconds monthly and no more than four (4) days in
Level: one month will be answered at a rate less than 75%
within 20 seconds
Abandon Rate: Shall not exceed 5.00% monthly and no more than four (4)
days will exceed an 8.00% abandon rate in a month
Credit Inbound Calls: Only available on calls dialed direct to credit
Answer *[material omitted] of calls offered answered within
Rate/Service 20 seconds monthly and no more than four (4) days in
Level: one month will be answered at a rate less than 75%
within 20 seconds
Abandon Rate: Shall not exceed 5.00% monthly and no more than four (4)
days will exceed an 8.00% abandon rate in a month
Customer Service 95% processed accurately within 3 business days
Monetary Adjustments:
100% processed accurately within 5 business days
Settlement:
Daily Settlement: Faxed to CompuCredit by 1:00pm eastern and CompuCredit
access to RMS reports will be available by 1:00pm
eastern daily
New Accounts:
Manual Review: All accounts worked and decisioned within 3 days of
Take Ones: origination Entered applications forwarded to
CompuCredit within 5 days of receipt
Credit Line Increase 95% processed accurately within 3 business days
Requests:
100% processed accurately within 5 business days
Upgrade Requests: 95% processed accurately within 3 business days
100% processed accurately within 5 business days
Data Capture: All items received by 3:00pm will be keyed same day
Adjustments in All entries are verified by Proof & Verification
Accounting following day
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 406 of the Securities Act
of 1933.
ASPIRE
Performance Standards Page Two
Payment Processing: These standards will become effective 60
days from beginning date of this contract
Receipt: 100% payments & NSF checks that are
received by 12:00pm are processed same day
(Payments and NSF checks without valid
account numbers will not be required to
meet thisstandard)
Exceptions: Delivery Exceptions & errors received by 12:00pm
will be forwarded to CB&T & CompuCredit on
same day received; exceptions and errors
received after 12:00pm will be forwarded to
CB&T and CompuCredit within 24 hours
Exceptions: Processing Exceptions items of 100 or less will be
processed accurately within 48 hours of
receipt
Transmission All daily transmissions are to be
accuracy/timeliness: received and processed accurately by
6:00pm daily with the exception of the
first and second Monday of each month
Convenience Check Processing: These standards will become effective 60
days from beginning date of this contract.
Receipt: 100% convenience checks that are received
by 12:00pm are processed same day
Exceptions: Delivery Exceptions & errors are forwarded to CB&T
on same day received
Exceptions: Processing Exceptions items of 100 or less will be
processed accurately within 48 hours of
receipt
Transmission
accuracy/timeliness: All daily transmissions are to be received
and processed accurately by 6:00pm daily
Correspondence:
Non-dispute: Processing 95% processed accurately within 3 business
days
100% processed accurately within 5 business
days
Dispute: 95% processed accurately within 3 business
days
100% processed accurately within 5 business
days
Dispute: Processing of 100% within Federal, Visa, & MasterCard
Resolutions regulations
All disputed items will be cleared
within 60 days from date suspended All
valid disputes not handled within Visa
or MasterCard Guidelines will be charged
off at CB&T's expense
Executive Complaints: 99% within 3 business days to author and
Acknowledgment CompuCredit
Executive Complaints:
Resolution Within required timeframes as indicated in
correspondence or as determined by client
Copy Requests:
Statements, Convenience 95% processed accurately within 3 business
Checks, Balance Transfer days 100% processed accurately within 5
Checks, etc. business days
ASPIRE
Performance Standards Page Three
Fraud Detection/Prevention:
Detection Rate: CB&T will make 2 attempts to contact
cardholder within 48 hours of the time that
potentially fraudulent activity is
identified by the fraud detection system
Reconciliation of activity: All transactions on Lost/Stolen accounts
will be reconciled within 30 days
All transactions determined to be fraud
will be investigated and resolved within
Federal, Visa, & MasterCard regulations
timeframes
Queue management: Specific queues and associated parameters
will be mutually agreed to by CB&T and CC
Large Payments: Authorizations will be posted on qualifying
transactions by 12:00pm each day following
a payment transmission.
Fraud Apps: CB&T will investigate fraudulent
applications and reconcile all activity
within 60 days of determination
Convenience Checks: CB&T will investigate fraudulent
convenience checks and reconcile
all activity within 60 days of
determination
Restitution Arrangements CB&T will establish and administer
restitution payments according
to mutually agreed upon terms
Charge offs: All accounts to be charged off within 60
days of determination of fraudulent
activity
For all of the
aforementioned
standards, accuracy
will be defined as
no more than a 3.00%
error rate
Technical Services:
Call Blockage: No Blocked Calls (busy signals)
VRU Downtime: VRU is to be operational 24 hours/day, 7
days/week at least
98.5 % of operating hours during the month
PEGA Uptime: 95.00%
Additional standards for technical services
and systems are detailed in Exhibit D
Project Management: Including but limited to TSYS, VRU,
Mainframe, & PEGA
Analysis & Estimates: Will follow TSYS Methodology
Implementation:
Report Generation and
Delivery: Hard and/or soft copy reports pertaining to
the measurement of the aforementioned
standards are to be received by
CompuCredit no later than 8:00am on the
following business day for daily
reports, the following Monday at 8:00am
for weekly reports, and the 3rd business
day of the month at 8:00am for monthly
reports
EXHIBIT "C"
--------------------------------------------------------------------------------
ASPIRE
--------------------------------------------------------------------------------
Financial Penalties for Performance Page One
Failures:
All performance levels below the established standard levels detailed in Exhibit
B and not excused under the terms of the Agreement, will generate financial
penalties of:
- *[material omitted] of the applicable service category fee from CB&T
to CC upon the first months failure.
- *[material omitted] of the applicable service category fee from CB&T
to CC upon the second time in a 6 month period
- *[material omitted] of the applicable service category fee from CB&T
to CC upon the third time in a 6 month period
All performance levels below the established standard level detailed in Exhibit
D and not excused under the terms of the Agreement will generate financial
penalties according to Exhibit D.
Aspire
Cancellation Rights for Performance Failures:
The following standards are subject to cancellation rights as iterated in
section 2 .C.( 3), following notice and opportunity to cure as provided therein,
should they fail to the degree indicated below and such failure is not excused
under the terms of the Agreement :
Standard: Penalty Threshold:
1. Customer service calls 60% monthly service level
2. Settlement Three (3) failures in one month
Cancellation and or financial penalty rights do not apply when CB&T compensates
CC from experiencing financial expense associated with settlement failures.
3. Fraud Detection
CB&T will make from 2 attempts to contact cardholder
within 48 hours of the time that potentially
fraudulent activity is identified by the fraud
detection system All transactions on Lost/Stolen
accounts will be reconciled within timeframes as 30
days All transactions determined to be fraud will be
investigated and resolved within Federal, Visa, &
MasterCard regulations timeframes Queue parameters
will be mutually agreed to by CB&T and CC
Large Payment Auths Three (3) failures in one
month
Fraud Apps Reconciliation 95% reconciled w/in 60
days
Convenience Checks 95% reconciled w/in 60
days
Charge Offs 95% reconciled w/in 60
days
Cancellation and or financial penalty rights do not apply when CB&T compensates
CC from experiencing financial expense associated with fraud losses due to
missed standards.
4. Technical Services/System Updates & Performance Performance of 77%
calculated per Exhibit D
Cancellation rights applicable to Technical Services and Systems Updates &
Performance will not apply at such time as CompuCredit contracts directly with
TSYS for these services.
* Deleted per the Registrant's request for confidential treatment and filed
separately with the Commission pursuant to Rule 406 of the Securities Act
of 1933.
EXHIBIT D
PERFORMANCE STANDARD: Plastic Output Timeliness (1)
PURPOSE:
To measure the reliability of TSYS' delivery of Cards and Card Mailers from
request processing until entry into the delivery mailstream (US Postal Service,
FedEx, etc.). This indicator measures the number of cards released in a timely
manner versus the number of cards scheduled to be released.
STANDARD:
100% of "Fast Cards" ordered by 3:00 p.m. mailed the same day
100% of "FedEx" cards mailed within 1 business day of creation of
Embossing File
100% of "Daily" cards mailed within 3 business days of creation of
Embossing File
100% of Reissue cards mailed by the reissue window
SAMPLE SIZE:
100% of plastics scheduled to be released
MEASUREMENT PERIOD:
Monday through Friday
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide Subscriber with the number of successful and
unsuccessful card requests released for the work which dropped during the
previous month. A release will be considered successful if 100% of cards are
mailed within the specifications listed above, and unsuccessful if the standard
is not met. Failures will be recorded on the date the Embossing File was
created.
Example: 2,000 "daily" cards requested on June 3rd are not mailed until
June 7th. Standard is failed. If, in this example, June 5th falls
on a Friday, June 6th and 7th are not working days, the standard
is passed.
Note: Where the embossing work is held with Subscriber's approval, the card
turnaround will be measured from the date the card request or reissue files are
actually processed.
Example: The "Daily" work of the 3rd is held until the 6th, TSYS has until
the 9th to mail the cards.
1
PERFORMANCE STANDARD: Card Services Accuracy (2)
PURPOSE:
To measure the accuracy of Card Services production output. Accuracy is defined
as the validity of all card information, including use of the correct materials,
the embossing of the plastic, the encoding of the magnetic stripe, the printing
of the card mailer and the accuracy of the inserting.
STANDARD:
50 accounts or less with inaccurate data caused by a single or cumulative issue
within one measurement period.
SAMPLE SIZE:
100% of card production issues reported to or by Subscriber.
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day Subscriber will provide to TSYS Client Relations any report of Card
Services Accuracy issues. TSYS will report any accuracy that cannot be corrected
prior to mailing. This indicator will be reported as 100% if no single or
cumulative issue affects more than 50 accounts or 0% if a single or cumulative
issue affects more than 50 accounts. Failures will be recorded on the date the
issue is reported by Subscriber to have occurred.
Example: 50 accounts affected by three accuracy issues
Card Services Accuracy for the day is 100%, Passed.
51 accounts affected by one accuracy issue
Card Services Accuracy for the day is 0%, Failed.
2
PERFORMANCE STANDARD: Statement Output Timeliness (3)
PURPOSE:
To measure the reliability of TSYS' delivery of Consumer Card statements from
the end of cycle processing until entry into the US Postal Service Mailstream
within the required time frames. This indicator measures the number of
statements released in a timely manner versus the number of statements scheduled
to be released.
STANDARD:
100% of statements generated for each billing cycle mailed within three (3)
business days
SAMPLE SIZE:
100% of statements scheduled to be released
MEASUREMENT PERIOD:
By Cycle
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide Subscriber with the number of successful and
unsuccessful statements released for each cycle. A release will be considered
successful if 100% of statements are mailed within three (3) business days from
their cycle date, and 0% if this standard is not met. Failures will be recorded
for the actual cycle failed based on 27 cycles numbered 02 through 28, and not
by date.
Example: 20,000 statements cycle on 3rd June
15,000 statements are mailed on 4th June
5,000 statements are mailed on 5th June
The standard is passed.
20,000 statements cycle on 3rd June 15,000 statements are mailed
on 5th June 4,000 statements are mailed on 6th June 1,000
statements are mailed on 7th June
1,000 statements are not mailed within three (3) working days
The standard is failed for cycle 3.
If in the above example, June 5 falls on a Friday, June 6 and 7 are not working
days, the standard is met if the remaining statements are mailed on June 8th.
(Continued)
3
Statement Output Timeliness (3)
* Note: Where the cycle is held with Subscriber's approval, the statement
turnaround will be measured from the date the statement actually cycles.
Example: Cycle 3 is held until the 6th of the month
TSYS has until the 9th of the month to mail the statements.
4
PERFORMANCE STANDARD: Statement Accuracy (4)
PURPOSE:
To measure the accuracy of Consumer Card Statements. Accuracy is defined as the
validity of all statement information including use of the correct materials,
the accuracy of the statement data and the accuracy of the inserting.
STANDARD:
50 accounts or less with inaccurate data caused by a single or cumulative issue
within one measurement period
SAMPLE SIZE:
100% of statement issues reported to or by Subscriber (excluding test cycle
output)
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day Subscriber will provide to TSYS Client Relations any report of
Statement Accuracy issues. TSYS will report any accuracy issues that cannot be
corrected prior to mailing. This indicator will be reported as 100% if no single
or cumulative issue affects more than 50 accounts or 0% if a single or
cumulative issue affects more than 50 accounts. Failures will be recorded on the
date the issue is reported to TSYS by Subscriber.
Example: 50 accounts affected by one accuracy issue
Statement Accuracy for the day is 100%, Pass.
51 account affected by one accuracy issue
Statement Accuracy for the day is 0%, Fail.
5
PERFORMANCE STANDARD: Daily Report Timeliness (5)
PURPOSE:
To measure the reliability of TSYS' delivery of Daily Reports from processing
until entry into the delivery mailstream (US Postal Service, FedEx, etc.). This
indicator measures the number of reports released in a timely manner versus the
number of reports scheduled to be released.
STANDARD:
100% of reports generated daily mailed within two (2) business days
SAMPLE SIZE:
100% of Daily Reports generated
MEASUREMENT PERIOD:
Monday through Friday
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide Subscriber with the number of unsuccessful releases
of hardcopy reports. A release will be considered successful if 100% of reports
are mailed within two (2) business days from their creation date, and 0% if this
standard is not met. Failures will be recorded on the date the issue is reported
to TSYS by Subscriber.
Example: 100 reports created on 3rd June
100 reports mailed on 4th June
The standard is passed.
100 reports created on 3rd June
90 reports mailed on 4th June
10 reports mailed on 5th June
10 reports are not mailed within two (2) working days.
The standard is failed.
6
PERFORMANCE STANDARD: Month-End Report Timeliness (6)
PURPOSE:
To measure the reliability of TSYS' delivery of Monthly Reports from processing
until entry into the delivery mailstream (US Postal Service, FedEx, etc.). This
indicator measures the number of reports released in a timely manner versus the
number of reports scheduled to be released (hardcopy only).
STANDARD:
100% of reports generated monthly mailed within three (3) business days
SAMPLE SIZE:
100% of Monthly Reports generated
MEASUREMENT PERIOD:
Once, Monthly
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide Subscriber with the number of unsuccessful releases
of Month-end Reports. A release will be considered successful if 100% of
Month-end Reports are mailed within three business (3) days from their creation
date, and unsuccessful if this standard is not met. Failures will be recorded
within the month that the reports were mailed late, unless the notification of
the late mailing has come from Subscriber after the previous month's performance
reports have been completed. In that case, the failure will be recorded for the
current month.
Example: 50 month-end reports for May created on 2nd June
50 reports mailed by 4th June
The standard is passed for May.
50 month-end reports for May created on 2nd June
40 reports mailed on 6th June
10 reports mailed on 7th June
10 reports are not mailed within three (3) business days.
The standard is failed for May.
7
PERFORMANCE STANDARD: Report Accuracy (7)
PURPOSE:
To measure the accuracy of all reports. Accuracy is defined as the validity of
all system generated report information.
STANDARD:
100% of report output will contain accurate data
SAMPLE SIZE:
100% of report issues reported to or by Subscriber (hardcopy and softcopy
on-line viewing)
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day Subscriber will provide to TSYS Client Relations any report of Report
Accuracy issues. TSYS will report any hardcopy Report Accuracy issues that
cannot be corrected prior to mailing. This indicator will be reported as 100% if
no single or cumulative issue affects 1 report or 0% if a single or cumulative
issue affects 1 report. Failures will be recorded on the date the issue is
reported to TSYS by Subscriber.
Example: 0 reports affected by an accuracy issue
Report Accuracy for the day is 100%, Passed.
1 report affected by one accuracy issue
Report Accuracy for the day is 0%, Failed.
8
PERFORMANCE STANDARD: Refresh Positive File Timeliness (8)
PURPOSE:
To ensure that TSYS is authorizing against the most current system data. This
indicator measures the timeliness of the scheduled reload of the Positive File
which occurs following nightly processing, Tuesday through Saturday - excluding
holidays.
STANDARD:
100% of Positive Files will be updated by 8:00 AM, EST
SAMPLE SIZE:
100% of Positive Files created
MEASUREMENT PERIOD:
Tuesday through Saturday
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide to Subscriber the number of incidents in which the
Positive File was not reloaded by its scheduled window. This indicator will be
reported as 100% if no single or cumulative issue affects the reload of the
Positive File or 0% if a single or cumulative issue affects the reload of the
Positive File. Failures will be recorded on the date the Positive File was not
loaded within the window.
9
PERFORMANCE STANDARD: Authorization System External Response (9)
PURPOSE:
To measure the availability of the Tandem Authorizations System in response to
authorization requests from outside sources (i.e. cardholder usage).
STANDARD:
99% of all authorizations will be performed by the TSYS Authorizations System.
SAMPLE SIZE:
100% of authorization requests within a 24 hour period
MEASUREMENT PERIOD:
Sunday through Saturday
OUTLINE OF PROCEDURE:
Monthly, TSYS will provide Subscriber with the total daily number of STIP 1 and
STIP 3 stand in responses, and the total number of daily authorizations
performed for Subscriber. This indicator will be reported as 100% if the
percentage of STIP 1 and STIP 3 authorizations does not causes the availability
to be less than 99%, and 0% if this availability is less than 99%. Failures will
be recorded on the date the STIPS were incurred. The availability percentage
will be calculated as (Total Authorizations - STIP 1 & STIP 3) / Total
Authorizations
Example: Total Authorizations for the day = 50,000
Total STIP 1 and STIP 3 for the day = 500
50,000 - 500 = 49,500
49,500 / 50,000 = .990 = 99.0% Pass
Total Authorizations for the day = 50,000
Total STIP 1 and STIP3 for the day = 501
50,00 - 501 = 49,499
49,499 / 50,000 = .9899 = 98.99% Fail
* STIP totals are currently only available by processing file. A project has
been submitted to allow STIP totals to be reported by client, regardless of
processing file. Until such time, this indicator cannot be accurately reported.
10
PERFORMANCE STANDARD: ACE-Registered Trademark- System Availability (10)
HOURS OF AVAILABILITY:
See attached: Hours of Availability
PURPOSE:
To measure the availability of the ACE System to Subscriber. Availability of the
system includes the availability of all functions of the system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The ACE System Availability indicator is based on the minutes of availability of
the ACE System. Each day TSYS will obtain and verify all ACE system outages with
Subscriber and calculate the availability of the ACE System. Outages will be
accumulated for the day to determine the daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
11
PERFORMANCE STANDARD: Cardholder System Availability (11)
HOURS OF AVAILABILITY:
See attached: Hours of Availability
PURPOSE:
To measure the availability of the TSYS Cardholder System to Subscriber.
Availability of the system includes the availability of all functions of the
system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The Cardholder System Availability indicator is based on the minutes of
availability of the Cardholder System. Each day TSYS will obtain and verify all
Cardholder System outages with Subscriber and calculate the availability of the
Cardholder System. Outages will be accumulated for the day to determine the
daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
12
PERFORMANCE STANDARD: Collections System Availability (12)
HOURS OF AVAILABILITY:
See attached: Hours of Availability (Performance excludes Collection Download)
PURPOSE:
To measure the availability of the TSYS Collection System to Subscriber.
Availability of the system includes the availability of all functions of the
system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The Collection System Availability indicator is based on the minutes of
availability of the Collection System. Each day TSYS will obtain and verify all
Collection System outages with Subscriber and calculate the availability of the
Collection System. Outages will be accumulated for the day to determine the
daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
13
PERFORMANCE STANDARD: Accounting System Availability (13)
HOURS OF AVAILABILITY:
See attached: Hours of Availability
PURPOSE:
To measure the availability of the TSYS Accounting System to Subscriber.
Availability of the system includes the availability of all functions of the
system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE PROCEDURE:
The Accounting System Availability indicator is based on the minutes of
availability of the Accounting System. Each day TSYS will obtain and verify all
Accounting System outages with Subscriber and calculate the availability of the
Accounting System. Outages will be accumulated for the day to determine the
daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
14
PERFORMANCE STANDARD: On-line Reports System Availability (14)
HOURS OF AVAILABILITY:
See attached: Hours of Availability
PURPOSE:
To measure the availability of the TSYS On-line Report System (Softcopy) to
Subscriber. Availability of the system includes the availability of all
functions of the system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The On-line Reports System Availability indicator is based on the minutes of
availability of the On-line Reports System. Each day TSYS will obtain and verify
all On-line Reports System outages with Subscriber and calculate the
availability of the On-line Reports System. Outages will be accumulated for the
day to determine the daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
15
PERFORMANCE STANDARD: TOTAL ACCESS(R)System Availability (15)
HOURS OF AVAILABILITY:
See attached: Hours of Availability
PURPOSE:
To measure the availability of the TOTAL ACCESS System to Subscriber.
Availability of the system includes the availability of all functions of the
system and data files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The TOTAL ACCESS System Availability indicator is based on the minutes of
availability of the TOTAL ACCESS System. Each day TSYS will obtain and verify
all TOTAL ACCESS System outages with Subscriber and calculate the availability
of the TOTAL ACCESS System. Outages will be accumulated for the day to determine
the daily performance result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
16
PERFORMANCE STANDARD: TRIAD-TM- System Availability (16)
HOURS OF AVAILABILITY:
See Attached: Hours of Availability
PURPOSE:
To measure the availability of the TRIAD System to Subscriber. Availability of
the system includes the availability of all functions of the system and data
files.
STANDARD:
Less than 15 minutes unavailable each day
SAMPLE SIZE:
Total minutes available; See Attached: Hours of Availability
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
The TRIAD System Availability indicator is based on the minutes of availability
of the TRIAD System. Each day TSYS will obtain and verify all TRIAD System
outages with Subscriber and calculate the availability of the TRIAD System.
Outages will be accumulated for the day to determine the daily performance
result.
Example: 6 minutes of outage from 8:56 A.M. to 9:02 A.M.
8 minutes of outage from 3:00 P.M. to 3:08 P.M.
Total minutes = 6 + 8 =14 minutes, Passed
10 minutes of outage from 8:56 A.M. to 9:06 A.M.
5 minutes of outage from 3:00 P.M. to 3:05 P.M.
Total minutes = 10 + 5 =15 minutes, Failed
17
PERFORMANCE STANDARD: ACE Batchfeed Accuracy (17)
PURPOSE:
To measure the accuracy of the ACE Batchfeed System. Accuracy is defined as the
validity of all information generated through the Batchfeed System. Should ACE
Batchfeed reporting be inaccurate due to Reporting Accuracy (RMS) issues, the
Reporting Accuracy indicator will be affected. If the ACE Batchfeed reporting is
inaccurate due to ACE System issues, then the ACE Batchfeed Accuracy indicator
will be affected.
STANDARD:
50 accounts or less with inaccurate data caused by single or cumulative issues
within one measurement period
SAMPLE SIZE:
100% of ACE new account issues, on accounts loaded to TSYS through ACE
Batchfeed, reported to or by Subscriber
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain and report all ACE Batchfeed accuracy issues to
Subscriber. Subscriber will verify these issues. This indicator will be reported
as 100% if no single or cumulative issue affects 50 accounts or 0% if a single
or cumulative issue affects more than 50 accounts. Failures will be recorded on
the date the issue is reported to TSYS by Subscriber. This standard will not be
considered a failure due to invalid data transmitted to TSYS by Subscriber.
Example: 50 accounts affected by one (1) accuracy issue
ACE Batchfeed Accuracy for the day = 100%, Pass
51 accounts affected by one (1) accuracy issue ACE
Batchfeed Accuracy for the day = 0%, Fail
18
PERFORMANCE STANDARD: Cardholder System Accuracy (18)
PURPOSE:
To measure the accuracy of the Cardholder System. Accuracy is defined as the
validity of all Cardholder System data after the posting process or on-line
update.
STANDARD:
50 accounts or less with inaccurate data caused by single or cumulative issues
within one measurement period.
SAMPLE SIZE:
100% of Cardholder issues reported to or by Subscriber.
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain, verify and report all Cardholder System accuracy
issues to or from Subscriber. This indicator will be reported as 100% if no
single or cumulative issue affects 50 accounts or 0% if a single or cumulative
issue affects more than 50 accounts. Failures will be recorded on the date the
issue is reported to TSYS by Subscriber. This standard will not be considered a
failure due to invalid data transmitted to TSYS by Subscriber.
Example: 50 accounts affected by one accuracy issue.
Cardholder Accuracy for the day = 100%, Pass
51 accounts affected by one accuracy issue.
Cardholder Accuracy for the day = 0%, Fail
19
PEFORMANCE STANDARD: Collections System Accuracy (19)
PURPOSE:
To measure the accuracy of the Collections System. Accuracy is defined as the
validity of all Collections System data after the posting process or on-line
update.
STANDARD:
50 accounts or less with inaccurate data caused by single or cumulative issues
within one measurement period.
SAMPLE SIZE:
100% of Collection issues reported to or by Subscriber.
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain, verify and report all Collection System accuracy
issues to or from Subscriber. This indicator will be reported as 100% if no
single or cumulative issue affects 50 accounts or 0% if a single or cumulative
issue affects more than 50 accounts. Failures will be recorded on the date the
issue is reported to TSYS by Subscriber. This standard will not be considered a
failure due to invalid data transmitted to TSYS by Subscriber.
Example: 50 accounts affected by one accuracy issue.
Collections Accuracy for the day = 100%, Pass
51 accounts affected by one accuracy issue.
Collections Accuracy for the day = 0%, Fail
20
PERFORMANCE STANDARD: Accounting System Accuracy (20)
PURPOSE:
To measure the accuracy of the Accounting System. Accuracy is defined as the
validity of all Accounting System data after the posting process or on-line
update. Also included in this indicator will be any TSYS caused out-of-balance
issues.
STANDARD:
100% accuracy of all data and no TSYS caused out-of-balance issues
SAMPLE SIZE:
100% of Accounting data and activity in a 24-hour period (excluding 7:00 P.M.
through 7:30 P.M. downtime Monday through Friday) reported to or by Subscriber
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain, verify and report all Accounting System Accuracy
issues to or from Subscriber. Subscriber will verify these issues. All accuracy
issues deemed critical, or any TSYS caused out-of-balance issues will impact the
Accounting System Accuracy indicator. Totals will be zero between 7:00 P.M. and
9:00 A.M. and are not considered quality failures.
The Accounting System Accuracy indicator is a 100% indicator. Any critical
accuracy issues or out-of-balance conditions will be considered failing and
reported as 0% for the day.
Example: 0 accounts affected by an Accounting System Accuracy issue
Accounting System Accuracy for the day is 100%, Pass
1 account affected by an Accounting System Accuracy issue
Accounting System Accuracy for the day is 0%, Fail
* Note: Out-of-balance issues will impact the TSYS Accounting System Accuracy
indicator. If the out-of-balance issue is proven to be a non-TSYS caused issue,
the "Fail" indicator will be removed.
21
PERFORMANCE STANDARD: TOTAL ACCESS System Accuracy (21)
PURPOSE:
To measure the accuracy of the TOTAL ACCESS System. Accuracy is defined as the
validity of all TOTAL ACCESS System data.
STANDARD:
50 accounts or less with inaccurate data caused by single or cumulative issues
within one measurement period.
SAMPLE SIZE:
100% of TOTAL ACCESS System issues reported to or by Subscriber.
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain, verify and report all TOTAL ACCESS System accuracy
issues to or from Subscriber. This indicator will be reported as 100% if no
single or cumulative issue affects 50 accounts or 0% if a single or cumulative
issue affects more than 50 accounts. Failures will be recorded on the date the
issue is reported to TSYS by Subscriber.
Example: 50 accounts affected by one accuracy issue.
TOTAL ACCESS System Accuracy for the day = 100%, Pass
51 accounts affected by one accuracy issue.
TOTAL ACCESS System Accuracy for the day = 0%, Fail
22
PERFORMANCE STANDARD: TRIAD System Accuracy (22)
PURPOSE:
To measure the accuracy of the TRIAD System. Accuracy is defined as the validity
of all TRIAD System data.
STANDARD:
50 accounts or less with inaccurate data caused by single or cumulative issues
within one measurement period.
SAMPLE SIZE:
100% of TRIAD System issues reported to or by Subscriber.
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day TSYS will obtain, verify and report all TRIAD System accuracy issues to
or from Subscriber. This indicator will be reported as 100% if no single or
cumulative issue affects 50 accounts or 0% if a single or cumulative issue
affects more than 51 accounts. Failures will be recorded on the date the issue
is reported to TSYS by Subscriber.
Example: 50 accounts affected by one accuracy issue.
TRIAD System Accuracy for the day = 100%, Pass
51 accounts affected by one accuracy issue.
TRIAD System Accuracy for the day = 0%, Fail
23
PERFORMANCE STANDARD: Critical Transmission Timeliness - Outgoing (23)
PURPOSE:
To measure TSYS' processing reliability of critical outgoing transmissions
STANDARD:
100% of five critical transmissions listed on the Outgoing Transmission Detail
Schedule
SAMPLE SIZE:
100% of Transmissions listed on the Outgoing Transmissions Detail Schedule
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURES:
Subscriber and TSYS will measure the timeliness of the five (5) critical
transmissions listed on the Transmission Detail Schedule.
Outgoing Transmissions must be available on "Supertracs" or "NDM" by the Window
Time in the Transmission Detail Schedule and must contain accurate data. Only
Outgoing Transmissions transmitted directly to a Mainframe or PC at Subscriber's
Data Center or at Subscriber's designed vendor in a NDM or Supertrac format is
eligible for measurement in this indicator.
The specified transmissions must be available by the designated start time with
complete and accurate data or the indicator will be missed for the day (provided
TSYS' requirements have been met.). Monthly, TSYS will provide Subscriber with
the number of Critical Outgoing Transmissions that were not achieved during the
month.
* This indicator will be reported as 100% should a delay in file creation be a
direct result of a Subscriber imposed error or Subscriber Masterfile update tape
processing.
Example: 0 critical transmissions affected by a timeliness issue
Outgoing Transmission Timeliness for the day is 100%, Pass
1 critical transmission affected by one timeliness issue
Outgoing Transmission Timeliness for the day is 0%, Fail
24
PERFORMANCE STANDARD: Critical Transmission Timeliness - Incoming (24)
PURPOSE:
To measure TSYS' processing reliability of critical incoming transmissions
STANDARD:
100% of five critical transmissions listed on the Incoming Transmission Detail
Schedule
SAMPLE SIZE:
100% of Transmissions listed on the Incoming Transmissions Detail Schedule
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Subscriber and TSYS will measure the timeliness of the five (5) critical
transmissions listed on the Incoming Transmission Detail Schedule.
Incoming Transmissions that are received by the window time will be processed by
TSYS on the specified date and time. TSYS will not be held liable for invalid or
inaccurate data and data submitted in an incorrect format for the incoming
transmission files.
Example: 0 critical transmissions affected by a timeliness issue
Incoming Transmission Timeliness for the day is 100%, Pass
1 critical transmission affected by one timeliness issue
Incoming Transmission Timeliness for the day is 0%, Fail
25
PERFORMANCE STANDARD: Outgoing Transmission Accuracy (25)
PURPOSE:
To measure the accuracy of Outgoing Transmissions. Accuracy is defined as the
validity of all outgoing transmission data.
STANDARD:
100% of all transmission data is complete and accurate.
SAMPLE SIZE:
100% of Transmissions sent to Subscriber
MEASUREMENT PERIOD:
Calendar Days
OUTLINE OF PROCEDURE:
Each day Subscriber will provide to TSYS Client Relations any report of
Transmission Accuracy issues. TSYS will report any accuracy issues that cannot
be corrected prior to transmitting. This indicator will be reported as 100% if
no single or cumulative issue affects one transmission or 0% if a single or
cumulative issue affects one or more transmissions. Failures will be recorded on
the date the issue is reported to TSYS by Subscriber. This standard will not be
considered a failure due to invalid input data transmitted to TSYS by
Subscriber.
Example: 0 transmissions affected by one accuracy issue
Transmission Accuracy for the day is 100%, Pass
1 transmission affected by one accuracy issue
Transmission Accuracy for the day is 0%, Fail
26
STANDARD 23 SCHEDULE OUTGOING
--------------------- ------------------------------------------------------- ------------------------------
Report Title/ Batch Dataset Name (DSN) Start Window
File
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
27
STANDARD 24 SCHEDULE INCOMING
--------------------- ------------------------------------------------------- ------------------------------
Report Title/ Batch Dataset Name (DSN) Window
File
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
--------------------- ------------------------------------------------------- ------------------------------
28
HOURS OF AVAILABILITY:
All times are Eastern Standard or Eastern Daylight Savings Time.
----------------- -------------------------------- --------------------- ---------------------------------------
System Hours of Availability Daily Minutes Exceptions (unavailability)
Available
----------------- -------------------------------- --------------------- ---------------------------------------
Accounting Sunday through Saturday 8:00 660 Sunday - Saturday, 7:00 P.M. (DCE
A.M. to 7:00 P.M. and CSA nightly pulls.)
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
ACE Same as Cardholder Same as Cardholder
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
Cardholder To be determined based on Hours available x
Subscriber location (East / 60 minutes
West Coast)
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
Collections Same as Cardholder Same as Cardholder
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
On-line Reports 24 hours daily, 7 days 1320 Monday - Saturday, 8:00 P.M. to 10:00
P.M. (daily file reorg)
Sunday 12:00 P.M. to 2:00 P.M.
(daily file reorg)
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
TOTAL ACCESS Sunday through Saturday 9:00 600 Approximately 36 hours at month-end.
A.M. to 7:00 P.M. Schedule to be communicated prior to
event (monthly file reorg).
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
TRIAD Same as Cardholder Same as Cardholder Hourly, a 5-minute refresh of tables
must occur. At 2:00 PM daily, the
move to production will cause certain
function codes to be unavailable for
less than a 10 minute period.
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
----------------- -------------------------------- --------------------- ---------------------------------------
NIGHTLY PROCESSING: As of 10/06/98, Nightly Processing for Cardholder File 09
begins at 7:00 PM, Eastern Time and completes by 08:00 AM, Eastern Time the
following morning.
TS1 Consumer Card Performance Standards
--------------------------------------------------------------------------------
Exhibit D
General Rules
The following provision shall apply with respect to the Performance Standards
and achieving the Performance Standards:
1. There are 26 Performance Standards consisting of the following: Plastic
Output Timeliness, Card Services Accuracy, Statement Output Timeliness,
Statement Accuracy, Daily Report Timeliness, Month-end Report
Timeliness, Report Accuracy, Refresh Positive File Timeliness,
Authorization System External Response, ACE(R) System Availability,
Cardholder System Availability, Collections System Availability,
Accounting System Availability, On-line Reports System Availability,
TOTAL ACCESS(R)System Availability, TRIADTM System Availability, ACE
Batchfeed Accuracy, Cardholder System Accuracy, Collections System
Accuracy, Accounting System Accuracy, TOTAL ACCESS System Accuracy,
TRIAD System Accuracy, Outgoing Transmission Timeliness, Incoming
Transmission Timeliness, Outgoing Transmission Accuracy and
Authorizations System Accuracy.
2. The following pages of the Attachment identify and state each
Performance Standard, as well as the procedure to be followed in
determining whether each Performance Standard has been achieved.
3. TSYS shall be entitled to the points associated with any Performance
Standard where such Performance Standard is failed as a result of the
acts or omissions of a third party (including but not limited to
submissions of inaccurate or incomplete data or Visa/MasterCard abends).
This includes hardware failures, when said equipment is owned by the
third party and is located on site at TSYS.
4. The effective date of this Performance Agreement, including the scoring
thereof, shall become effective _________1998, unless prior to such date
the parties in good faith amend the effective date of this Performance
Agreement.
5. In the event that TSYS fails to achieve the Monthly Service Score for
Performance Standards as described in this Performance Agreement for two
(2) consecutive months, the TSYS Account Manager and Director of Client
Relations will meet with Subscriber to discuss problems and corrective
actions.
6. TSYS shall be entitled to the points associated with any Performance
Standard where such Performance Standard is failed as a result of acts
or omissions of Subscriber (including but not limited to submission of
inaccurate or incomplete data or misuse of system design features).
7. In the following pages, Performance Standards are sometimes referred to
as "Indicators" and such term shall have the meaning for the purposes
thereof.
i
8. TSYS shall be entitled to the points associated with any Performance
Standard where such Performance Standard is failed as a result of
downtime, provided TSYS gives Subscriber at least seven (7) days notice
(or other mutually agreed upon notice) and such downtime is reasonable
under the circumstances. TSYS shall be entitled to the points associated
with any Performance Standard where such Performance Standard is failed
as a result of emergency downtime; provided TSYS gives Subscriber at
least eight (8) hours notice. Emergency downtime shall be defined as
"downtime which is not reasonably foreseeable at least seven (7) days
prior to the occurrence of such downtime". Authorization System
emergency downtime will only provide for a one (1) hour notice.
(i) TSYS agrees to provide Subscriber with a monthly
downtime schedule.
9. All references to time shall be Eastern Standard Time or Eastern
Daylight Savings Time, unless otherwise stated. The measurement period
will begin at 00:00 hours and end at 23:59:59 the same day.
10. Performance Reports will be distributed to Subscriber on a monthly
basis.
11. TSYS and Subscriber agree that the Performance Standards will be
reviewed annually by a group of four individuals, two from Subscriber
and two from TSYS. These individuals may also designate representatives
from their respective areas to participate in the reviews. During the
review, these individuals will evaluate the existing Performance
Standards and determine whether to recommend changes or additions.
Changes or additions that are recommended by these individuals and
agreed upon by the parties shall become effective as of the date agreed
upon by the parties. Any new standard that the parties propose to adopt
will be tested for at least thirty (30) days before becoming a
Performance Standard for the purposes hereof. No new Performance
Standard shall become effective until all testing is complete and both
parties agree in writing that such Performance Standard shall go into
effect.
12. TSYS and Subscriber agree to communicate all incidences of
non-conformance to standards at the time of the occurrence of the
incident or as soon as either party is made aware of the incident.
13. TSYS shall be entitled to the points associated with any Performance
Standard (excluding Card Accuracy and Statement Accuracy) where such
Performance Standard is failed as a result of any occurrence which
Subscriber fails to report to TSYS within fourteen (14) business days of
such occurrence.
14. Test accounts/test agent banks are excluded from all Performance
Standards except Card Accuracy and Statement Accuracy.
ii
15. In the event that an application Function Code is not available to
Subscriber, impact to the appropriate "availability" indicator will be
recorded based on the programming group whose resolution alleviates the
impact. Example: The Inquire Collection Messages (ICM) function is
accessible though the Cardholder System, but the Function Code is
"owned" by Collections Programming. Therefore, impact will be recorded
as impact to the Collection Availability indicator only.
iii
Scoring
The following provisions shall apply with respect to the Performance Standards
and achieving the Performance Standards:
1. For each Performance Standard achieved on a day, TSYS shall receive one
(1) point for the Performance Standard for that day. For each
Performance Standard not achieved on a day, TSYS shall receive no points
with respect to such Performance Standard for that day.
2. At the end of each month, the points achieved for each Performance
Standard on each day shall be totaled. Such total shall be the "Monthly
Points Achieved".
3. Possible points for each Performance Standard for the month shall be
totaled. Such total shall be the "Monthly Possible Points". The Monthly
Possible Points for all Performance Standards shall be totaled.
This total shall be the "Total Possible Points."
4. The Total Points Achieved for each indicator shall be divided by the
Total Possible Points. The quotient obtained from the division described
in the previous sentence shall be expressed as a percentage. Such
percentage shall be the "Monthly Service Score."
5. A Monthly Service Score of ninety-four percent (94%) or higher shall be
a passing monthly score for Performance Standards. A monthly service
score of less than ninety-four percent (94%) shall be a failing monthly
score. In the event that TSYS does not achieve the agreed upon monthly
service score of ninety-four percent (94%) or higher for the indicators
in successive months, TSYS agrees to pay Subscriber a penalty based on
the following incremental penalty schedule:
First month failure Penalty amount is zero percent (0%) of
Core Processing Fees (excluding
expenses).
Second Consecutive failure Penalty amount is one percent (1%) of
Core Processing Fees (excluding
expenses).
Any score of ninety-four percent (94%) or better will "reset" the
incremental penalty amount to zero percent (0%).
This penalty will be paid in the form of a credit on Subscriber's
processing xxxx for the following month.
iv
6. If TSYS achieves an average monthly score of ninety-nine percent (99%)
or higher for the Performance Standards, Subscriber shall award TSYS a
bonus based on the following incremental bonus schedule:
First month bonus Bonus amount is zero percent (0%) of
Core Processing Fees (excluding
expenses).
Second Consecutive bonus Bonus amount is half of one percent
(0.5%) of Core Processing Fees
(excluding expenses).
Any score of less than ninety-nine percent (99%) will "reset" the
incremental bonus amount to zero percent (0%).
Such payment shall be in the form of "Bonus Dollars" to be utilized by
TSYS to offset any future performance failure amounts owed to
Subscriber. The average monthly score is calculated by taking the
quotient of the number of Performance Standards divided by the
Performance Standards achieved.
7. The term "core processing fees" is described in Attachment A ("Pricing
Attachment").
v
