EXHIBIT 10.51
FIRST AMENDMENT TO
POS CHECK THIRD PARTY SERVICER AGREEMENT
DATED DECEMBER 12, 2000
BETWEEN
ELECTRONIC CLEARING HOUSE, INC.
AND
VISA U.S.A. INC.
The POS Check Third Party Servicer Agreement ("Agreement") between the parties
is amended as follows:
First: Section 5 of the Agreement is amended to read as follows:
-----
5. POS Check Service Definition and Rules. Visa shall have the exclusive
--------------------------------------
right to define the scope and nature of the POS Check Service, and to adopt
rules and regulations implementing and governing its operation. Visa agrees to
solicit the input of Provider in connection with such matters, but shall have no
liability for any failure to do so. Notwithstanding the foregoing, the Provider
shall have the sole right to decide whether to make guarantee services available
to any particular merchant and the terms of those services.
Second: Section 7 of the Agreement is amended to read as follows:
------
7. Deployment. The Provider acknowledges and agrees that the Services will
----------
be deployed during the Pilot Term on a limited basis, determined in Visa's sole
discretion, in order to test market response and requirements, and to determine
whether the Services should be modified or enhanced prior to full market
deployment. Visa shall have the right to limit or restrict Provider's ability
to provide certain of the Services to Participating Acquirers and/or merchants,
and to limit the number of Participating Acquirers and/or merchants, at Visa's
sole discretion, during the Pilot Term.
Third: Section 10(a) and Section 10(c) of the Agreement are amended to
-----
read as follows:
(a) Visa Confidential Information. During the Term of this Agreement,
-----------------------------
Provider may receive and have access to confidential and proprietary information
of Visa or its Member financial institutions, including but not limited to,
network and computer systems, programs, documentation, business plans, customer
information, data changes and modifications to the Provider system required by
Visa and such other information which is proprietary, confidential or which
constitutes a trade secret of Visa or its Member financial institutions
(collectively, "Visa Confidential Information"). Provider acknowledges and
agrees that the Visa Confidential Information shall be and remain the exclusive
proprietary property of Visa or the respective Member financial institution,
provided that Visa expressly agrees that Provider shall have the right to
incorporate check experience information obtained in connection with the POS
Check Service into its proprietary negative and positive check experience
databases used to provide verification and guarantee services to Provider's
customers. Provider further acknowledges and agrees that Provider shall hold
the Visa Confidential Information (except for the check experience information
referenced in the preceding sentence) in the same level of confidence as its own
confidential and proprietary information and not use or disclose any Visa
Confidential Information to any third party, nor shall such information be
disclosed to Provider employees, agents, consultants, contractors or
subcontractors, except on a need to know basis to those directly involved with
the provision of the Services under this Agreement.
(c) Disclosure of Agreement. Provider further acknowledges and agrees that
-----------------------
Provider shall not, during or following the termination of this Agreement, use,
publish or disclose the existence or content of this Agreement without the prior
express written consent of Visa, except as required under applicable law or
regulation. Notwithstanding the foregoing, Visa expressly agrees that Provider
may disclose the fact that it is a processor for the POS Check Service and the
nature of that processing function in the context of the POS Check Service.
Fourth: Section 11(b) of the Agreement is amended to read as follows:
------
(b) Without limiting Section 11(a), Provider agrees that all non-public
information, including without limitation names, addresses, transactional data
or other personally-identifying information, obtained by Provider from Visa,
Participating Acquirers, other Visa Member financial institutions or merchants
in connection with providing the Services shall, as between Provider, Visa,
Participating Acquirers, other Visa Member financial institutions or merchants,
be the sole and exclusive property of the party from whom Provider obtained it,
provided that Visa expressly agrees that Provider shall have the right to
incorporate check experience information obtained in connection with the POS
Check Service into its proprietary negative and positive check experience
databases used to provide verification and guarantee services to Provider's
customers.
Fifth: Section 14(a) of the Agreement is amended to read as follows:
-----
(a) By Provider. Provider shall defend or settle, at its own expense,
-- --------
any claim against Visa, a Participating Acquirer or merchant arising out of or
in any way connected with an allegation that the Services supplied by the
Provider as a Third Party Processor to Visa, or Participating Acquirers
infringes any United States copyright, patent, trademark or trade secret.
Provider shall also pay all costs and damages that may be assessed against Visa,
a Participating Acquirer or merchant due to such infringement. Visa agrees to,
and agrees to require a Participating Acquirer or merchant to, cooperate with
Provider in the defense of any such claim.
Subject to the Limitation of Liability in Section 13(b), and
subject to Provider's right to defend or settle any claim against Visa, Provider
shall indemnify, hold harmless and defend Visa from and against any and all
losses, claims, actions, mediations, arbitrations, injuries, damages,
liabilities, judgments, including reasonable attorneys' fees and costs which
arise due to the gross negligence, or intentional wrongful acts or omissions of
Provider with respect to this Agreement and/or the provision of the Services
under this Agreement by Provider to Visa, Acquiring Participants or merchants.
Sixth: Section 15(d) of the Agreement is amended to read as follows:
-----
(d) Visa Option to License Software
-------------------------------
(i) At the end of the Pilot Term or at any time thereafter, upon thirty (30)
days written notice, Visa shall have the right to license the proprietary
software used by Provider to provide the Services, enabling Visa to provide the
Services itself. This license shall be non-exclusive, perpetual, and worldwide,
and shall include access to source and object code, documentation, and all
intellectual property rights specific to the version of the software developed
by Provider to provide the Services to Visa necessary to enable Visa to use that
software to provide the Services, and to modify, enhance, maintain, or
sublicense that software. The form of license will be negotiated by the parties
at the time of Visa's election to exercise the option, and will contain
commercially-reasonable terms enabling Visa to use the software for Visa's
intended use described above. Notwithstanding the foregoing, nothing shall
require Provider to supply to Visa hereunder any software that is not necessary
for Visa to provide the Services, and Visa acknowledges that if access to
dynamic databases maintained by Provider and the ACH settlement engine
maintained by Provider is required to provide the Services Visa will be
required to pay separate fees for that access.
(ii) The parties will negotiate in good faith at the time of Visa's election
to obtain a license a reasonable license fee, and at Visa's option, a fee for
maintenance services to be provided by Provider. In the event the parties are
unable to agree on a fair license fee and/or maintenance fees for the software
within fifteen (15) days after Visa's notice to Provider of exercise of its
option hereunder, then a "Big 5" accounting firm or other mutually agreed upon
party that is familiar with the valuation of software systems licenses, and
which does not perform audits for either party, will calculate a fair market
price for a license fee and/or maintenance fee, within fifteen (15) business
days of its engagement. The parties agree that any fee charged for the valuation
of the license fee shall be divided equally, except that ECHO shall not be
required to pay more than ten thousand dollars ($10,000.00) as its portion of
the fee charged for the valuation of the license fee. Visa shall have the option
to obtain a license to the software and maintenance services under the amounts
so determined within ninety (90) days after agreement between the parties on the
amount, or receipt of written notice of the amount if determined by the
accounting firm as described above.
Seventh: Section 16(a) of the Agreement is amended to read as follows:
-------
a) Visa. Visa may immediately terminate this Agreement by giving Provider
----
written notice of termination if: (i) Provider becomes insolvent or makes an
assignment for the benefit of its creditors or any proceeding is commenced by or
against Provider under any bankruptcy, liquidation or other debtor's protection
law or statute, and such proceeding is not dismissed within sixty (60) days of
its institution; (ii) within thirty (30) days of Visa giving Provider written
notice of Provider's non-monetary breach of this Agreement including failure to
meet Service Level Agreements (other than such breach as described in subsection
(iv), below), such breach is not cured; (iii) within ten (10) business days of
Visa giving Provider written notice of Provider's monetary breach of this
Agreement, the breach is not cured; (iv) if Provider violates any material
governmental law, regulation or rule (including without limitation National
Automated Clearing House Association ("NACHA") rules) applicable to Provider;
(v) upon a change of control of Provider; or (vi) without cause upon sixty (60)
days prior written notice to Provider, except in the event of a termination
under this Section 16(a)(vi), any then valid contracts between Provider and
Acquirer Participants may continue to be serviced under this Agreement until the
contract between the Provider and the Acquirer Participant can be terminated by
Provider without penalty, and the terms and conditions of this Agreement shall
continue in force and effect and shall be applicable to any such continued
servicing.
Eighth: Except as amended herein, the terms and conditions of the Agreement
------
shall continue in full force and effect.
The parties through their authorized representatives have executed this
Amendment on the dates shown below, effective on the latest such date.
ELECTRONIC CLEARING VISA U.S.A. INC.
HOUSE, INC.
