EXHIBIT 5.6
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CARD PROGRAM MANAGEMENT AGREEMENT
This Card Program Management Agreement (the "Agreement"), dated as of
March 14, 2005 (the "Effective Date") is entered into by and between XXXXXX
BEAUMONT INC, whose address is 0000 00" Xxxxxx Xxxx, Xxxxxxxxx, XX 00000
("Program Manager") and METABANK, DBA META PAYMENT SYSTEMS, whose address is
0000 X. Xxxxxxxxx Xxx, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000 ("Bank"). Each may be
referred to here in as a "Party" or collectively as "Parties".
WHEREAS, Bank is a principal member of MasterCard International
Incorporated ("MasterCard"), Visa, U.S.A., Inc. ("Visa"), and various other
electronic payment networks, and is in the business of issuing Cards and
establishing Settlement Accounts for the settlement of Card transactions; and
WHEREAS, Bank wishes to market and promote certain prepaid, stored
value or payment cards (collectively, "Card(s)") to the public, as of means of
increasing Bank deposits and increasing Bank fee revenues; and
WHEREAS, Program Manager is in the business of marketing Cards and
implementing programs to consumers and corporations that include the
distribution and usage of Cards ("Programs") and can provide services, either
directly or through subcontractors, to support Card Programs; and
WHEREAS, Bank desires to retain Program Manager to market, offer and
support Card Programs approved by Bank, using Cards issued by Bank, and
WHEREAS, Program Manager desires to market Programs with Cards issued
by Bank and to provide support services for such Programs on behalf of Bank
bearing the xxxx of one or more electronic payment networks, to consumers
subject to the terms and conditions hereof; and
WHEREAS, Program Manager has entered into an agreement ("Services
Agreement") with a third party processor, WildCard Systems ("Processor")
pursuant to which Program Manager will receive certain Card Processing Services
in support of the Programs contemplated in this Agreement; and
WHEREAS, Bank and Processor have previously executed an agreement (the
"Processor Servicing Agreement") on October 18, 2004 whereby Processor has
agreed to offer Card Processing Services to companies which execute a Card
Program Management Agreement with Bank including but not limited to Program
Manager;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the Parties hereto, intending to be legally bound, agree
as follows:
ARTICLE I - DEFINITIONS
SECTION 1.1 DEFINITIONS
Except as otherwise specifically indicated, the following terms shall
have the following meanings in this Agreement (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
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"CARD" means any stored value, prepaid, payment or account access
device or number issued by Bank under authority from one or more electronic
payment networks. For purposes of this agreement, a Card does not include any
credit card or product that access credit,
"CARDHOLDER" means (i) a person who is issued a Card, and (ii) uses the
Card to make a Transaction.
"CARDHOLDER FUNDS" means a pooled custodial account associated with one
or more Cards, and held by Bank for the benefit of the Cardholders.
"CARDHOLDER Agreement" means the agreement between Bank and a
Cardholder governing the terms and conditions applicable to the use of a Card.
"GOVERNMENTAL REQUIREMENTS" means collectively all statutes, codes,
ordinances, laws, regulations that may apply to Cards, and all related rules,
orders and decrees of all governmental authorities (including without limitation
federal, state and local governments, governmental agencies and
quasi-governmental agencies).
"INTERCHANGE" means the fee paid to the Bank, as issuer of a Card, by
an acquiring financial institution for a Transaction, as established by a
System.
"XXXX" means the service marks and trademarks of a System or Bank,
including but not limited to, the names and other distinctive marks or logos,
which identify a System and Bank.
"PROCESSING SERVICES" means those services which are necessary to issue
and service a Card and process a transaction in accordance with Government
Requirements, Rules, or any Regulatory Authority.
"PROGRAM" means a system of services approved by Bank under which a
specific list of Cardholders subject to a Cardholder Agreement utilizes a Card
to submit Transactions into a System utilizing a Settlement Account to access
Cardholder Funds. This Agreement contemplates that Program Manager may be
permitted by Bank to offer multiple Programs hereunder, each subject to the
terms hereof.
"PROGRAM REVENUE" means all income derived from a Cardholder's use of a
Card or participation in a Program.
"REGULATORY AUTHORITY" means, as the context requires, the State of
South Dakota; the Federal Deposit Insurance Corporation; the Office of Thrift
Supervision; and any Federal or state agency having jurisdiction over Bank or
Program Manager.
"RULES" means the by-laws and operating rules of any System, the
published policies and procedures of Bank, as promulgated by Bank's Board of
Directors in good faith to ensure the continued safety and soundness of Bank.
"SETTLEMENT" means the movement and reconciliation of funds between
Bank and System members in accordance with the Rules.
"SETTLEMENT ACCOUNT" means the account maintained by Bank used for
Settlement of all transactions initiated by use of a Card(s) by or on behalf of
a Cardholder.
"SYSTEM" means MasterCard, VISA, Cirrus, Plus, and/or any other
electronic payment network for transmitting items and Settlement thereof.
"TRANSACTION" means using a Card to do any of the following: (i) to
make a purchase; (ii) to obtain a credit for a previous purchase; (iii) to
obtain cash from a terminal or automated teller machine ("ATM"); (iv) to make a
xxxx payment or other payment to a third party; (v) to transfer value to another
card or account; or (vi) to add further funds or to "reload" a Card.
ARTICLE II - GENERAL DESCRIPTION OF PROGRAMS
SECTION 2.1 PURPOSE
The purpose of this Program is to develop, market, and implement Bank
products for use in conjunction with Programs that offer consumers a convenient
and secure mechanism for making purchases and payments subject to the Rules and
Governmental Requirements. Bank hereby appoints Program Manager as Bank's
authorized delegate and representative to (i) market and offer Cards that meet
Bank requirements; to develop, market and offer Programs that utilize Cards; and
(iii) to perform such services hereunder to support the Cards and Programs,
solely in accordance with the terms of this Agreement.
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ARTICLE III - DUTIES OF PROGRAM MANAGER
SECTION 3.1 MARKETING
Program Manager, at its sole expense, shall develop Programs and
promote and market Cards and Programs to prospective customers, in accordance
with the Bank's instructions. All Card products and Programs, together with any
promotions, marketing materials, Card design, and use of Marks related thereto,
are subject to prior approval by Bank and System prior to use. Bank shall be
identified on all marketing material for Cards and Programs contemplated in this
Agreement.
SECTION 3.2 PRINTING OF CARDS AND CARDHOLDER AGREEMENTS
Bank shall at all times determine the terms and conditions, including
any applicable fees, charged with respect to all Cards issued hereunder. Bank
shall be the contracting party under all Cardholder Agreements and shall enter
into a Cardholder Agreement with each Cardholder. The relationship with each
Cardholder shall be owned by Bank. All Cards and Cardholder Agreements shall
identify Bank as the issuer or the Cards. All Cards shall include such other
names, Marks, and disclosures as may be required to conform to Governmental
Requirements, Regulatory Authority, and Rules.
The terms and conditions contained in the Cardholder Agreements shall
be determined solely by Bank and may be amended by Bank, from time to time, upon
notice to Program Manager. Program Manager, at its sole expense, shall be
responsible for printing and distributing the Cardholder Agreement and any
amendments thereto to Cardholders as directed by Bank.
SECTION 3.3 ACCESS TO PROGRAM DOCUMENTS AND INFORMATION
Bank shall have access to all information and documents it reasonably
requests with regard to any activity contemplated by this Agreement.
SECTION 3.4 PROCESSING SERVICES
Program Manager, at its sole expense, shall provide for Processing
Services. Any processor retained by Program Manager to provide Processing
Services must be approved in advance by Bank, and must have executed a
Processing Services agreement with Bank. A list or pre-approved processors may
be obtained from Bank, upon Program Manager's request.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF PROGRAM MANAGER
SECTION 4.1 REPRESENTATIONS AND WARRANTIES
Program Manager represents and warrants to Bank as follows:
(a) Program Manager has the full power and authority to execute and
deliver this Agreement, to perform all its obligations under this Agreement and
other agreements which must be executed to effect the services contemplated
herein.
(b) Except as otherwise disclosed, neither Program Manager nor any
principal of Program Manager has been subject to the following:
(i) Criminal conviction (except minor traffic offenses
and other xxxxx offenses);
(ii) Any unpaid Federal or state tax lien;
(iii) Administrative or enforcement proceedings commenced
by the Securities and Exchange Commission, any state
securities regulatory authority, Federal Trade
commission, federal or state bank regulator, or any
other state or federal regulatory agency; or
(iv) Restraining order, decree, injunction, or judgment in
any proceeding or lawsuit, alleging fraud or
deceptive practice on the part of Program Manager or
any principal thereof.
For purpose of this subparagraph, the word "principal" shall include any person
directly or indirectly owning ten percent (10%) or more of Program Manager, any
officer or director of the Program Manager or any person actively participating
in the control of Program Manager's business.
(c) There is not pending or threatened against Program Manager, any
litigation or proceeding, judicial, tax or administrative, the outcome of which
might materially adversely affect the continuing operations of Program Manager.
Attached to this Agreement is a list and brief description of all pending
lawsuits in which Program Manager is a party.
(d) Program Manager has delivered to Bank complete and correct copies
of its balance sheets and related statements of income and cash flow. Program
Manager's financial statements, subject to any limitation stated therein, which
have been or which hereafter will be furnished to Bank will fairly represent the
financial condition of the Program Manager.
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(e) Program Manager agrees that, at Bank's sole discretion, Bank, its
authorized representatives, or agents and any government entity with regulatory
or supervisory authority over Bank (collectively the "Auditing Party"), shall
have the right to inspect, audit, and examine all of Program Manager's
facilities, records and personnel relating to the Program at any time during
normal business hours upon reasonable notice. The Auditing Party shall have the
right to make abstracts from Program Manager's books, accounts, data, reports,
papers, and computer records directly pertaining to the subject matter of this
Agreement, and Program Manager shall make all such facilities, records,
personnel, books, accounts, data, reports, papers, and computer records
available to the Auditing Party for the purpose of conducting such inspections
and audits.
ARTICLE V - COVENANTS OF PROGRAM MANAGER
SECTION 5.1 COVENANTS
Program Manager covenants and agrees with Bank as follows:
(a) It will comply with all applicable laws, rules, regulations and
ordinances, Government Requirements, the Rules and any rules, orders and
regulations issued by the Regulatory Authorities (collectively "Legal
Requirements") that relate to Program Manager's business, this Agreement, the
matters and transactions contemplated herein.
(b) Program Manager will provide on an ongoing basis, at least once
each calendar year, updated balance sheets and related statements of income and
cash flow.
(c) All written consumer complaints received by Program Manager,
relating to the Card or its use, will be immediately reported to Bank. Such
report shall include the name and address of the complaining Cardholder, a brief
summary of the Cardholder's complaint, and when resolved a brief summary of how
the complaint was resolved.
(d) Any litigation or court proceedings filed against Program Manager,
relating to the Card or its use, will be immediately reported to Bank. Such
report shall include a copy of the court papers or proceedings, together with a
summary of the Program Manager's position with respect to the matter, the name
and address of Program Manager's counsel handling the matter, and the likelihood
of settlement of such matter.
ARTICLE VI - DUTIES OF BANK
SECTION 6.1 MEMBERSHIPS IN SYSTEM
Bank, as a principal member of the System, shall support the
sponsorship and registration of Program Manager as a marketing agent or service
provider of Bank with each System, as applicable.
SECTION 6.2 ASSESSMENT, DEVELOPMENT AND APPROVAL OF PROGRAMS
Bank shall work closely with Program Manager to develop Programs that
meet Bank's strategic objectives and customer goals. Any Programs proposed by
Program Manager shall be reviewed and assessed by Bank, and shall be approved or
declined in Bank's sole discretion.
SECTION 6.3 ISSUER OF CURDS AND APPROVAL OF CARDHOLDERS
Bank shall be the issuer of all Cards hereunder. To do so, Bank shall
sponsor a BIN for the Cards and will maintain a Program whereby it issues Cards
marketed and promoted by Program Manager pursuant to this Agreement and in
accordance with Governmental Requirements and Rules. In addition, with respect
to Card Programs that establish an ongoing relationship with the Cardholder,
Bank shall review customer information regarding each such Cardholder, and shall
be responsible for ensuring that each such Cardholder meets Bank's Customer
Identification Program as required by applicable law, Bank will also regularly
screen all Cardholders through Bank's screening system implemented to comply
with Office of Foreign Assets Control (OFAC) regulations.
SECTION 6.4 SETTLEMENT
Bank shall provide for Settlement for all Cards issued by Bank. To
facilitate Settlement, Bank has established or will establish one or more
Settlement Account(s) owned by Bank. Program Manager agrees all Cardholder Funds
shall be held in an account owned and controlled solely by Bank.
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SECTION 6.5 SUPERVISION AND OVERSIGHT
At all times, Bark shall be responsible for supervising and overseeing
Program Manager's performance of services hereunder and the results of the
various Programs developed and implemented jointly with Program Manager. Bank
shall review reports and financials from the Programs, and shall meet regularly
with Program Manager, on at least an annual basis, to discuss the results of the
Program(s) (including any problems, losses or complaints, and any changes or
modifications that may be necessary to ensure the viability of the Program(s).
SECTION 6.6 LEGAL COMPLIANCE
Bank will comply with all Legal Requirements that relate to this
Agreement and the matters and transactions contemplated herein.
ARTICLE VII - COMPENSATION AND EXPENSES
SECTION 7.1 EXPENSES OF BANK
Bank shall be solely responsible for the following expenses:
(a) Membership fees related to Bank's own membership in any System
utilized by a Program.
(b) Bank shall pay its own costs and overhead generated from its
review, assessment and development of Programs, and from its supervision and
oversight of Program Manager and the Program results.
(c) Bank's shall be obligated to compensate Program Manager for its
services as set forth in Section 7.3 hereof. Payments to Program Manager will be
made on or before the 30" day of each month for the prior month's services and
will be net of any expenses due from Program Manager.
SECTION 7.2 EXPENSES OF PROGRAM MANAGER
Program Manager shall be solely responsible for the following:
(a) Advertising and other expenses associated with the marketing of
Cards to potential Cardholders.
(b) All fines and penalties assessed by any Regulatory Authority or
System (other than Bank) due to Program Manager's actions, inactions, or
omissions.
(c) All expenses associated with and losses resulting from over limit
processing, Cardholder fraud, value load fraud and under floor limit processing.
(d) A fee not to exceed $1,500 annually to Bank to offset the expenses
for conducting such inspections and audits as described in Section 4.1 e.
(e) Any fees charged by a System in relation to Program Manager's
registration, as applicable, as a marketing agent or service provider of Bank.
(i) All fees charged by a System for any purpose related to the
Programs.
(g) All expenses associated with establishing and maintaining any
accounts with, or receiving services from, any financial institution providing
Settlement and all expenses in providing Bank with account balances.
(h) All expense associated with completing a due diligence review for
any third parry vendor or contractor relationship contemplated in this Agreement
(i) All expense associated with Program Manager's retention, oversight
and supervision of a processor providing Processing Services.
SECTION 7.3 COMPENSATION OF PROGRAM MANAGER
All Program Revenues shall accrue to the benefit of the Bank. From such
Program Revenues, Sank shall pay compensation to Processor pursuant to the
Processor Servicing Agreement, and Processor will distribute such compensation
to Program Manager as set forth in the Services Agreement between Client and
Processor.
ARTICLE VIII - LIMITATION OF LIABILITY
SECTION 8.1 NO SPECIAL DAMAGES
Neither Party shall be liable to the other for any indirect,
incidental, consequential, punitive or exemplary damages, however, that the
limitations set forth in this Section shall not apply to or in any way limit the
third party indemnity obligations under this Agreement.
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SECTION 8.2 DISCLAIMERS OF WARRANTIES
Bank specifically disclaims all warranties of any kind, express or
implied, arising out of or related to this Agreement, including without
limitation, any warranty of marketability, fitness for a particular purpose or
non-infringement, each of which is hereby excluded by agreement of the parties.
SECTION 8.3 LIABILITIES OF PROGRAM MANAGER FOR SYSTEM, REGULATORY AND
OTHER CLAIMS
Program Manager shall be liable to Bank for any and all liabilities and
every loss, cost, expense, claim, demand, and cause of action (including,
without limitation, the cost of investigating the claim, the cost of litigation
and reasonable attorneys' fees, whether or not legal proceedings are instituted
and whether paid or incurred, as the case may be) by or on behalf of any
Cardholder, Regulatory Authority or other third party as a result of Program
Manager's failure to comply with the Legal Requirements.
ARTICLE IX - TERM OF PROGRAMS AND AGREEMENT
SECTION 9.1 TERM
The term of this Agreement shall commence on the Effective Date and
continue for three (3) years (the "Initial Term") unless terminated earlier as
provided below. After the Initial Term, the Agreement shall automatically extend
for additional periods of one year each (a "Renewal Term") unless either party
terminates this Agreement for any reason by providing written notice to the
other at least 120 days prior to the commencement of the next Renewal Tern.
SECTION 9.2 TERMINATION OF AGREEMENT
(a) Either Bank or Program Manager shall have the right to terminate
this Agreement upon occurrence of one or more of the following events:
(i) Failure by the other party to observe or perform, in any
material respect, that party's obligations to the other party
hereunder, so long as the failure is not due to the actions or failure
to act of the terminating party, but only if the failure continues for
a period of (A) thirty (30) days after the non-performing party
receives written notice from the other party specifying the failure in
the case of a failure not involving the payment of money, or (B) ten
(10) days after the non-performing party receives written notice from
the other party specifying the failure in the case of a failure to pay
any amount then due hereunder; provided, however, that Bank, in its
sole discretion, may terminate this Agreement without such a cure
period if a substantially similar material failure has previously
occurred;
(ii) In the event any financial statement, representation,
warranty, statement or certificate famished to it by the other party in
connection with or arising out of this Agreement is adverse to the
terminating party and is untrue, misleading or omits material
information, as of the date made or delivered.
(iii) A party (A) voluntarily or involuntary (and such
involuntary petition or proceeding is not dismissed within sixty (60)
days) commences (or is the subject of, as the case may be) any
proceeding or filing any petition seeking relief under Title 1 I of the
United States Code or any other Federal, state or foreign bankruptcy,
insolvency, liquidation or similar law, (B) applies for or consents to
the appointment of a receiver, trustee, custodian, sequestrator or
similar official for such party or for a substantial part of its
property or assets, (C) makes a general assignment for the benefit of
creditors, (D) commences the winding up or liquidation of its business
or affairs, or (E) takes corporate action for the purpose of effecting
any of the foregoing.
(iv) Upon any change to or enactment of or change in
interpretation or enforcement of any law or regulation which would have
a material adverse effect upon such Party's ability to perform its
obligations or such Party's costs/revenues with respect to the Program.
(v) Violation by either Party of any material federal or
applicable state law relating to the performance of this Agreement.
(vi) Upon direction from any Regulatory Authority or System to
cease or materially limit performance of the rights or obligations
under this Agreement.
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(b) Notwithstanding the foregoing, Bank shall be entitled at any time,
upon at least one hundred eighty (190) days prior written notice to Program
Manager, to terminate Bank's issuance of any Card or to terminate Bank's
participation in any Program. Such termination will not affect or impact any
other Cards or Programs implemented hereunder. In the event the Bank exercises
its right to terminate any Cards or Programs under this subsection 9.2(b), the
Bank will assist the Program Manager to ensure a smooth transition for Program
Manager with any affected Cardholders as set forth in Section 9.3 below.
SECTION 9.3 TERMINATION AND TRANSITION ASSISTANCE
(a) In the event: (i) any Cards or any Programs are terminated by Bank
without cause pursuant to Section 9.2(b); or (ii) this Agreement is terminated
by Program Manager due the a material default by the Bank; then, upon Program
Manager's request, the Bank will take commercially reasonable steps to permit
the relevant Bank Identification Numbers ("BINs") to be transferred to another
issuing financial institution.
(b) In the event that: (i) the Bank elects to terminate any Card or any
Program; or (ii) this Agreement is terminated for any reason, the parties will
cooperate to provide a smooth and orderly wind-down of the Program or Programs
involved.
(c) In no event will any Parties make any public statement or customer
communication regarding the termination or wind-down of this Agreement, or any
Cards or Programs without the express prior written approval of both Bank and
Program Manager, which approval shall not be unreasonably withheld or delayed.
ARTICLE X - CONIPMENTIALITY
SECTION 10.1 CONFIDENTIAL INFORMATION
The term "Confidential Information" shall mean this Agreement and all
proprietary information, data, trade secrets, business information and other
information of any kind whatsoever which (a) a Party ("Discloser") discloses, in
writing, orally or visually, to the other Party ("Recipient") or to which
Recipient obtains access in connection with the negotiation and performance of
this Agreement, and which (b) relates to (i) the Discloser, (ii) in the case of
Program Manager, Bank and its customers and or associates, or (iii) consumers
who have made confidential or proprietary information available to Program
Manager and/or Bank. The definition of Confidential Information shall include
Customer Information as described below.
SECTION 10.2 COMPLIANCE WITH THE XXXXX-XXXXX-XXXXXX ACT
The purpose of this section is to ensure that this Agreement conforms
to the applicable provisions of the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"). Program
Manager acknowledges and agrees that "Non Public Personal Information" and
"Personally Identifiable Financial Information" (as defined in Sections 573.3(n)
and (o) respectively of the Office of Thrift Supervision Regulations on Privacy
of Consumer Information published at 12 CFR Chapter V) about Bank's customers
and Cardholders shall be considered as confidential and proprietary information
of Bank, and shall trot be disclosed to or shared with any third party without
prior written consent of Bank. Program Manager agrees to implement and maintain
appropriate measures designed to meet the objectives of the guidelines
establishing standards for safeguarding Non Public Personal Information and
Personally Identifiable Financial Information as adopted from time to time by
the Office of Thrift Supervision. Except as provided in, and subject to the
limitations stated herein, Program Manager will not compile, use, sell or
otherwise distribute any lists of Bank's customer's/Cardholders nor use the
names, account numbers or any other Non Public Personal Information and
Personally Identifiable Financial Information about customers or Cardholders to
compile, use, sell or distribute lists or data for use by Program Manager, its
subsidiaries or affiliates, or by any third parties. Program Manager will
instruct its employees, agents and contractors (including the processor) as to
the confidentiality of die Non Public Personal Information and Personally
Identifiable Financial Information and will not disclose any such Non Public
Personal Information or Personally Identifiable Financial Information to any
this party or entity. Program Manager also agrees that any dissemination of the
aforementioned confidential Non Public Information or Personally Identifiable
Financial Information within its own business entity and to agents and
contractors shall be restricted to "a need to know basis" for the purpose of
performance hereunder. Program Manager shall protect any Non Public Personal
Information and Personally Identifiable Financial Information from disclosure
with no less than the same degree of care afforded by Program Manager to its own
Confidential Information. The foregoing restrictions on disclosure of Non Public
Personal Information and Personally Identifiable Financial Information shall
apply for so long as is required under applicable statutes and regulations. All
Program Manager obligations and undertakings relating to Non Public Personal
Information and Personally Identifiable Financial Information shall survive the
termination of this Agreement for whatever reason.
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Program Manager agrees and represents to Bank that it (or its
processor) will implement a security program including measures designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information (the "Guidelines"). Bank has the right to make
reasonable requests to inspect, during normal business hours and upon 30 days
advance written notice, Program Manager' Program, associated audit reports,
summaries of test results or equivalent measures taken by Program Manager or the
processor to ensure that its security measures meet the objectives of the
Guidelines in accordance with the Rules and this Agreement.
In carrying out the above-described obligations to secure and protect
the respective Confidential Information of Bank, Program Manager agrees that it
will protect the Confidential Information of Bank and will require any of its
service providers or subcontractors to protect and safeguard the Confidential
Information of Bank to the same degree required of Program Manager.
Program Manager agrees that in the event there is a breach of security
resulting in unauthorized disclosure of the Confidential information of Bank,
Program Manager will promptly notify Bank of such breach, the nature of such
breach, and the corrective action taken to respond to the breach.
SECTION 10.3 DISCLOSURE TO EMPLOYEES AND AGENTS.
Each of the Parties, as Recipient, hereby agrees on behalf of itself
and its employees, officers, affiliates, agents, representatives, contractors
and subcontractors that Confidential Information will not be disclosed or made
available to any person for any reason whatsoever, other than on a "need to know
basis" and then only to: (a) its employees and officers; (b) subcontractors and
other third-parties specifically permitted under this Agreement, provided that
all such persons are subject to a confidentiality agreement which shall be no
less restrictive than the provisions of this Section; (c) independent
contractors, agents, and consultants hired or engaged by Recipient, provided
that all such persons are subject to a confidentiality agreement which shall be
no less restrictive than the provisions of this Section; and (d) as required by
law or as otherwise permitted by this Agreement, either during the term of this
Agreement or after the termination of this Agreement. Prior to any disclosure of
Confidential Information as required by law, the Recipient shall (i) notify the
Discloser of any, actual or threatened legal compulsion OF disclosure, and any
actual legal obligation of disclosure immediately upon becoming so obligated,
and (ii) cooperate with the Discloser's reasonable, lawful efforts to resist,
limit or delay disclosure. Nothing in this Section shall require any notice or
other action by Bank in connection with requests or demands for Confidential
Information from bank examiners or for compliance purposes.
SECTION 10.4 NON-SOLICITATION OF EMPLOYEES
The Parties agree that during the term of this Agreement each Party
will not seek out or induce any person (by offering employment or otherwise) who
is an employee of the other Parry to terminate their employment.
SECTION 10.5 RETURN OF MATERIALS
Upon the termination or expiration OF this Agreement, or at any time
upon the request of a Parry, the other Party shall return (or destroy if so
directed by the other Party) all Confidential Information, including Customer
Information, in the possession of such Party or in the possession of any
representative, contractor or third party otherwise required by this Agreement
or applicable law. If destroyed, such destruction of Confidential Information
shall be designated by a certificate executed by an officer of the Party which
was responsible for such destruction.
SECTION 10.6 EXCEPTIONS
With the exception of the obligations related to Customer Information,
the obligations of confidentiality in this Section shall not apply to any
information which a Parry rightfully has in its possession when disclosed to it
by the other Party, information which a party independently develops,
information which is or becomes known to the public other than by breach of this
Section or information rightfully received by a party from a third party without
the obligation of confidentiality.
SECTION 10.7 MEDIA RELEASES
All media releases, public announcements and public disclosures by
either Party, or their representatives, employees or agents, relating to this
Agreement or the name or logo of Bank or Program Manager, any Bank or Program
Manager affiliate or supplier, including, without limitation, promotional or
marketing material, but not including any disclosure required by legal,
accounting or regulatory requirements beyond the reasonable control OF the
releasing Party, shall be coordinated with and approved by the other Parry in
writing prior to the release thereof.
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ARTICLE XI - INSURANCE
SECTION 11.1. INSURANCE
Program Manager shall maintain, throughout the term of this Agreement,
appropriate comprehensive general liability (which shall include contractual
liability), errors and omissions, bodily injury, property damage, and employee
theft and dishonesty insurance policies, the limit of which shall be no less
than a combined single limit of $ 1,000,000 per occurrence.
ARTICLE XII - GENERAL PROVISIONS
SECTION 12.1 INDEMNIFICATION
(a) Program Manager covenants and agrees to indemnify and hold harmless
Bank, its parent, subsidiaries or affiliates, and their respective officers,
directors, employees and permitted assigns, as such, against any losses, costs
or expenses arising from any legal action, claim, demand or proceedings brought
against any of them as a result of any misrepresentation, breach of
representation or warranty or failure to fulfill a covenant of this Agreement on
the part of Program Manager, any act or omission of Program Manager or its
contractors, providers or representatives which violates any Legal Requirement,
or any claim relating to obligations owed to or by Program Manager or any third
parry retained by it; provided, that this provision shall not apply if such
claim arises out of (i) an act of fraud, embezzlement or criminal activity by
Bank, (ii) negligence, willful misconduct or bad faith by Bank, or (iii) the
failure of Bank to comply with, or to perform its obligations under, this
Agreement.
(b) Bank covenants and agrees to indemnify and hold harmless Program
Manager and its parent, subsidiaries or affiliates, and their respective
officers, directors, employees, and permitted assigns, as such, against any
losses, costs or expenses arising from any legal action, claim, demand, or
proceedings brought against any of them as a result of any misrepresentation,
breach of representation or warranty or failure to fulfill a covenant of this
Agreement on the part of Bank, any act or omission of Bank or its contractors,
providers or representatives which violates any Legal Requirement, or any claim
relating to obligations owed to or by Bank or any third party retained by it
(except to the extent that Program Manager has agreed to fulfill such obligation
under this Agreement); provided, that this provision shall not apply if such
claim arises out of (i) an act of fraud, embezzlement or criminal activity by
Program Manager or its contractors, providers or representatives, (ii)
negligence, willful misconduct or bad faith by Program Manager or its
contractors, providers or representatives, or (iii) the failure of Program
Manager or its contractors, providers or representatives to comply with, or to
perform its obligations under, this Agreement.
(c) If any claim or demand is asserted against any Party or Parties
(individually or collectively, the "Indemnified Party") by any person who is not
a party to this Agreement in respect of which the Indemnified Party may be
entitled to indemnification under the provisions of subsections (a) or (b)
above, written notice of such claim or demand shall promptly be given to any
Party or Parties (individually or collectively, the "Indemnifying Party") from
whom indemnification may be sought. The Indemnifying Party shall have the right,
by notifying the Indemnified Party within ten (10) days of its receipt of the
notice of the claim or demand, to assume the entire control (subject to the
right of the Indemnified Party to participate at the Indemnified Party's expense
and with counsel of the Indemnified Party's choice) of the defense, including,
at the Indemnifying Party's expense, employment of counsel subject to the
approval of Indemnified Party, which approval shall not be unreasonably
withheld. Indemnifying Party shall not compromise or settle the matter without
the consent of Indemnified Party, which consent shall not be unreasonably
withheld. If the Indemnifying Party gives notice to any Indemnified Party that
the Indemnifying Party will 85surne control of the defense of the matter the
Indemnifying Party will be deemed to have waived all defenses to the claims for
indemnification by the Indemnified Party with respect to that matter. Any damage
to the assets or business of the Indemnified Party caused by a failure of the
indemnifying Party to defend, compromise or settle a claim or demand in a
reasonable and expeditious manner, after the Indemnifying Party has given notice
that it will assume control of the defense, shall be included in the damages fn-
which the Indemnifying Party shall be obligated to indemnify the Indemnified
Party.
SECTION 12.2 DISCLOSURE
(a) Each Party shall promptly notify the other of any action, suit,
proceeding, facts and circumstances, and the threat of reasonable prospect of
same, which might give rise to any indemnification hereunder or which might
materially and adversely affect either Party's ability to perform this
Agreement.
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(b) Each Party represents and warrants to the other that it has no
knowledge of any pending or threatened suit, action, arbitration or other
proceedings of a legal, administrative or regulatory nature, or any governmental
investigation, against it or any of its affiliates or any officer, director, or
employee which has not been previously disclosed in writing and which would
materially and adversely affect its financial condition, or its ability to
perform this Agreement.
SECTION 12.3 RELATIONSHIP OF PARTIES
Bank and Program Manager agree they are independent contractors to each
other in performing their respective obligations hereunder. Nothing in this
Agreement or in the working relationship being established and developed
hereunder shall be deemed, nor shall it cause, Bank and Program Manager to be
treated as partners, joint ventures, or otherwise as joint associates for
profit,
SECTION 12.4 REGULATORY EXAMINATIONS AND FINANCIAL INFORMATION
Program Manager agrees to submit to any examination which may be
required by any Regulatory Authority or System with audit and examination
authority over Bank, to the fullest extent of such Regulatory Authority or
System. Program Manager shall also provide to Bank any information, which may be
required by any Regulatory Authority or System in connection with their audit or
review of Bank or the Program and shall reasonably cooperate with such
Regulatory Authority or System in connection with any audit or review of Bank.
Program Manager shall furnish Bank, at Program Manager expense, with audited
financial statements prepared by a certified public accountant. Program Manager
shall also provide such other information as Bank, Regulatory Authorities, or
the System may from time to time reasonably request with respect to the
financial condition of Program Manager and such other information as Bank may
from time to time reasonably request with respect to third parties contracted
with Program Manager.
SECTION 12.5 GOVERNING LAW
The Parties acknowledge that Bank, as a federally charted savings bank,
is regulated by the Office of Thrift Supervision, and is therefore subject to
federal law, and entitled to preemption from state laws to the fullest extent
permitted by law. In any matters not so preempted (if any) ibis Agreement shall
be governed by the internal laws, and not by the laws regarding conflicts of
laws, of the State of South Dakota. Each Party hereby submits to the
jurisdiction of the courts of such state, and (subject to the Bank's reservation
of preemption rights above) waives any objection to venue with respect to
actions brought in such courts.
SECTION 12.6 SEVERABILITY
In the event that any part of this Agreement is deemed by a court,
Regulatory Authority, System, or other public or private tribunal of competent
jurisdiction to be invalid or unenforceable, such provision shall be deemed to
have been omitted from this Agreement. The remainder of this Agreement shall
remain in full force and effect, and shall be modified to any extent necessary
to give such force and effect to the remaining provisions, but only to such
extent.
SECTION 12.7 SURVIVAL
All representations, warranties, and covenants contained herein shall
survive any termination or expiration of this Agreement In addition to the
representations, warranties, and covenants contained here, the Parties agree
that the following sections will survive termination: Article VIII (Limitation
of Liability); Article X (Confidentiality); Article XII (General Provisions).
SECTION 12.8 SUCCESSORS AND THIRD PARTIES
Except as limited by Section 12.9, this Agreement and the rights and
obligations hereunder shall bind, and inure to the benefit of the Parties and
their successors and permitted assigns.
SECTION 12.9 ASSIGNMENTS
The rights and obligations of Program Manager under this Agreement are
personal and may not be assigned either voluntarily or by operation of law,
without prior written consent from Bank.
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SECTION 12.10 NOTICES
All notices, requests and approvals required by this Agreement shall be
in writing addressed/directed to the other Party al the address and facsimile
set forth below, or at such other address of which the notifying Party hereafter
receives notice in conformity with this section. All such notices, requests, and
approvals shall be deemed given upon the earlier of receipt of facsimile
transmission during the normal business day or actual receipt thereof. All such
notices, requests and approvals shall be addressed to the attention of:
Bank to: MetaBank
dba Meta Payment Systems
0000 X. Xxxxxxxxx Xxx.
Xxxxx Xxxxx, XX 00000
Attention: General Counsel
Facsimile Number: (000) 000-0000
With Copy to: Xxxx Xxxxxx, President
Meta Payment Systems
0000 X. Xxxxxx Xxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
Facsimile Number: (000) 000-0000
Program Manager to: Xxxxxx Beaumont Inc.
0000 00xx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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