Certain confidential portions of this Exhibit were omitted by means of asterisks
in lieu of the text (the "Xxxx"). This Exhibit has been filed separately with
the Secretary of the Securities and Exchange Commission without the Xxxx
pursuant to the Company's request for confidential treatment pursuant to Rule
406 under the Securities Act of 1933, as amended.
Exhibit 10.20
XXXXXXXXXXX.XXX
SERVICE AGREEMENT
This Service Agreement ("Agreement") is entered into as of the
1st day of August, 2000 ("Effective Date"), by and between Humboldt Bank
("Bank"), a California state chartered bank with its principal office located in
Eureka, California; and xxxxxxxxxxx.xxx, a California corporation with its
principal office located in Los Angeles, California ("CCC").
RECITALS
A. Bank is a member of MasterCard International, Inc.
("MCI"), and Visa USA, Inc. ("Visa").
B. CCC markets credit and debit card processing services
to businesses and provides support services related to such processing services.
CCC desires Bank as an Acquiring Member of Visa and MCI to sponsor CCC and such
of its subsidiaries and its sponsored affiliates as are approved by Bank in
accordance with this Agreement as ISOs and MSPs for Visa and MCI respectively,
and to settle CCC's card transactions and perform certain other functions in
connection with that processing.
C. Effective March 1, 1997, the parties hereto entered
into a Merchant Program Management Agreement, which was amended effective August
1, 1998 and November 1, 1998 (as amended, the "Prior Service Agreement"). The
parties hereto agree that this Agreement supersedes the Prior Service Agreement.
Simultaneously with the execution and delivery of this Agreement, CCC has
delivered its promissory note in the principal amount of $[****] (the "Note") to
Bank in partial consideration for Bank's agreement to enter into this Agreement
which, among other things, provides for free portability of the Merchant
Accounts and more favorable pricing terms, all as further described in this
Agreement.
D. The parties hereto desire to grow the existing
processing relationship and, while not binding on any party, they believe a good
transaction volume target to work towards would be a monthly volume of $[****].
E. On November 1, 1994, Bank and FDR entered into a
Processing Services Agreement whereby FDR agreed to perform certain card
processing services for CCC's card transactions and for CCC's sponsored
affiliates.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants herein contained, the parties hereto agree as follows:
DEFINITIONS
The following capitalized terms will have the meanings set
forth below:
[****] Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
"ACH FILE" means the daily file created by Processor that
contains the ACH Transactions to debit or credit Merchants, as applicable, for
the sum of Sales Records, Credit Records, and Merchant Chargebacks received by
Processor and/or Merchant Transaction Processing Fees calculated by Processor
that is transmitted to the Federal Reserve by a participating financial
institution in the prescribed ACH format.
"ACH RETURNS" means ACH Transactions that cannot be posted to
a Merchant's bank account due to erroneous information, insufficient funds,
closed accounts or other reasons and that are returned through the Federal
Reserve to the originating financial institution.
"ACH TRANSACTION" means an electronic record of amounts to be
deposited or debited to a bank account at a financial institution participating
in the Automated Clearing House service conducted by the Federal Reserve.
"ACQUIRING MEMBER" or "ACQUIRING PRINCIPAL MEMBER" means a
licensee or member of an Association which is authorized by the Association to
enter or receive Transactions into (or from) the Association's settlement and
authorization systems, and to participate in the Association's Charge Card
program.
"AGREEMENT AREA" means the fifty (50) United States of
America, the territories of the United States of America and the District of
Columbia and any other Locations where Processor is authorized to provide
services on the Effective Date and such other Locations as may be agreed upon by
CCC and Processor from time to time.
"ASSESSMENT FEE" means those fees paid by Acquiring Members,
other than Interchange Fees and Association Charges, for participation in the
programs offered by Visa, MCI or other Association, as applicable, usually as a
percentage of Monthly Sales Volume. The due dates for payment and the rates used
in calculating these fees are established by Visa's and MCI's respective Boards
of Directors and by other Associations, as applicable, and are subject to change
upon written notice by Bank to CCC, which notice shall be provided to CCC as
soon as practicable.
"ASSOCIATION" means (a) Visa and MCI, (b) if made applicable
by the operation of Section 3.6, Diners Club, and (c) any other proprietary
(private label) credit card company or payment vehicle requested by CCC and
approved in writing by Bank, as the case may be in any given instance.
"ASSOCIATION CHARGES" are various fees (exclusive of
Interchange Fees and Assessment Fees) and rebates imposed by Visa and MCI (and
other Associations, if applicable) as stipulated in their respective regulations
for use of their equipment, their settlement and authorization systems, their
automated retrieval systems, BIN licensing, agent bank sponsorship, arbitration
filings, fines for non-compliance with regulations, and such other charges as
they may from time to time impose. Depending on the nature of the charge and the
Association, these fees are billed to the Acquiring Member on a daily, weekly
and monthly basis.
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"AUTHORIZATION CENTER" means those offices to be contacted by
a Merchant to obtain authorization codes and other instructions as necessary on
handling cards according to the Merchant Program Procedures.
"BIN" means a unique Bank Identification Number assigned by
Visa and licensed to an Acquiring Member for its use in issuing cards (if
applicable), entering or receiving Transactions into (or from) Visa's settlement
and authorization systems, and participating in the Visa card program. An "ICA"
is the corresponding number assigned by MCI for the same purpose. An Acquiring
Member may license multiple BINs or ICAs.
"CARDHOLDER" means an authorized person who has a Cardholder
Account with an Issuing Member.
"CARDHOLDER ACCOUNT" means an arrangement between a person and
an Issuing Member which provides that the person may use one or more Charge
Cards issued by such Issuing Member.
"CCC RESERVE ACCOUNT" means a money market account maintained
at Bank and owned by CCC, in which the Reserve Amount is to be maintained on
deposit by CCC, bearing interest at current market rates as offered by Bank to
the general public from time to time.
"CHARGE CARD" means a valid card issued by an Issuing Member
of (i) MCI or Visa which contains the MCI service xxxx or the Visa Blue, White
and Gold Bands design service xxxx, respectively, (ii) American Express,
Discover, JCB, Diners Club, Xxxxx Xxxxxxx, or (iii) proprietary (private label)
cards or any other payment vehicle supported by Processor in the Agreement Area.
A card shall be deemed valid on and after its effective date, if shown, and
through and including the expiration date embossed thereon.
"CREDIT RECORDS" means all documents or the Electronic Record
of such documents used to evidence any refund or price adjustment to be credited
to a Cardholder Account from the sale of Products. The format for each Credit
Record or suitable receipt must be either approved by Processor or supplied by
Processor.
"CUSTOMER" means an entity which is serviced or solicited by
CCC to join the Merchant Program, thereby becoming a Merchant.
"DAY" means a calendar day unless otherwise specified.
"DDA" means a direct deposit account.
"DINERS CLUB" means Citicorp Diners Club, Inc.
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"DISCOVER" means NOVUS Services, Inc.
"ELECTRONIC RECORD" means data which is transcribed in a form
acceptable to Processor and suitable for electronic processing.
"EVENT OF DEFAULT" means those events listed in Section 8.3.
"FDR" means First Data Resources, Inc.
"HOLD ACCOUNT" means a non-interest bearing deposit account
maintained at Bank for diversion of Merchant funds when there is evidence of
fraudulent Transactions or of a serious Merchant violation of the Rules.
"INDEPENDENT SALES ORGANIZATION" or "ISO" means any
organization that: (i) is not a member of Visa, (ii) provides services to a
member of Visa in connection with the member's merchant and/or credit card
issuing program, and (iii) is registered with and approved for such purpose by
Visa.
"INTERCHANGE FEE" means the fee which is paid daily by Bank as
the Acquiring Principal Member to Visa, MCI or other Association for entering
Sales Records and Credit Records into their respective settlement networks. Bank
shall provide any changes in the basis used to calculate these fees, as the same
are established from time to time by the Associations' respective Boards of
Directors, to CCC as soon as practicable.
"ISSUING MEMBER" means a licensee or member of an Association
which is authorized by the Association to issue Charge Cards.
"LOCATION" means each geographic or electronic/virtual site
or, by agreement between Bank and Merchant, one or more subdivisions of a
geographic site, at which a Merchant: (i) transacts business and (ii) accepts
Charge Cards as payment for goods and services sold.
"MEMBER SERVICE PROVIDER" or "MSP" means any organization
that: (i) is not a member of MCI, (ii) provides services to a MCI member in
connection with the member's merchant and/or credit card issuing program, and
(iii) is registered with and approved for such purpose by MCI.
"MERCHANT" means any Customer who enters into a Merchant
Agreement with CCC and Bank for the purpose of participating in the Merchant
Program, or whose contract for Charge Card processing services with another
Acquiring Member and CCC, or a predecessor in interest to CCC, has been assigned
to Bank and/or CCC, as applicable, or whose Transactions are otherwise processed
pursuant to this Agreement.
4
"MERCHANT ACCOUNT" means the written contractual relationship
between a Merchant, on the one hand, and/or Bank and CCC on the other for the
acquisition and processing of Transactions.
"MERCHANT AGREEMENT" means the written contractual agreement
between the Bank, the Merchant and/or CCC, pursuant to which CCC provides
processing services and allows the Merchant to participate in the Merchant
Program. The Merchant Agreement includes the Merchant Program description, and
the Merchant Program Procedures. The current form of the Merchant Agreement is
shown in Exhibit A which form (with respect to prospective Merchant Agreements)
is subject to change from time to time per agreement between CCC and the Bank.
Merchant Agreements include those between another Acquiring Member and a
Merchant for which CCC has the right to provide Charge Card processing services
and which have been assigned to the Bank.
"MERCHANT CHARGEBACK" means an item denied or returned by an
Issuing Member after it was entered into the appropriate settlement network for
payment in accordance with the Rules.
"MERCHANT LOSS" means any loss or extraordinary expense
(including but not limited to reasonable legal fees related to such loss or
extraordinary expense) incurred by Bank or CCC for any reason which is
attributable to a Merchant, including but not limited to any loss due to a
Merchant Chargeback, Merchant business failure, or fraudulent or illegal, or
alleged fraudulent or illegal, practice of a Merchant.
"MERCHANT PROGRAM" means the package of services offered by
CCC and Bank to a Customer which enables a Merchant to make sales to Cardholders
and which permits the Merchant to present Sales Records to Processor for payment
and processing.
"MERCHANT PROGRAM PROCEDURES" means the procedures, as
required by the Rules, which are to be followed by each of CCC and Bank, and
each Merchant in the handling of Transactions. Such procedures (i) may be
amended from time to time upon reasonable notice to CCC and to each Merchant,
and (ii) shall conform with the Rules; provided, however, that in the event that
any such procedure does not conform with the Rules, the Rules will govern.
"MERCHANT RESERVE ACCOUNT" means a non-interest bearing
deposit account maintained at Bank for the deposit of funds received from
Merchants pursuant to their respective Merchant Agreements as collateral against
losses (i.e., reserves) that might be incurred by CCC or Bank should a Merchant
be unable or fail to pay when due Merchant Losses or Merchant Transaction
Processing Fees.
"MERCHANT TRANSACTION PROCESSING FEES" means the fees charged
by CCC to a Merchant for participating in the Merchant Program, processing Sales
Records and Merchant Chargebacks, and supplying card authorization services,
monthly statements, equipment and other supplies and services as identified in
or authorized under the Merchant Application, Merchant Agreement or any other
ancillary materials.
5
"MONTHLY SALES VOLUME" means the gross dollar amount of Charge
Card Sales Records, before return, refund or exchange, that are generated by
Merchants and processed by Processor during a calendar month.
"OPERATING ACCOUNT" means a deposit account maintained at Bank
and owned by CCC, to which CCC shall have view-only access, for the purpose of
debiting and crediting Association Charges, Processor fees, adjustments from
Merchant Reserve Accounts, amounts due CCC and/or Bank, and other amounts
pursuant to this Agreement.
"ORIGINAL PAPER" means the Merchant copy of a Sales Record or
Credit Record transcribed in writing on a paper form which has either been
approved by Bank or supplied by Bank for use under this Agreement.
"PROCESSOR" is an entity engaged in the business of processing
and transmitting electronic data exclusively of a financial, banking or economic
nature, including but not limited to Visa and MCI Transactions. "Processor"
initially means FDR. For purposes of this Agreement, any reference to
"Processor" shall also mean the provider(s) of services in replacement of FDR
that provides services on behalf of and is selected from time to time by CCC and
approved by Bank, which approval shall not be unreasonably withheld.
"PRODUCTS" means goods and/or services sold or rendered by
Merchants.
"RESERVE AMOUNT" means an amount equal to [****] of the Monthly
Sales Volume for the immediately preceding calendar month to be maintained by
CCC in the CCC Reserve Account in accordance with this Agreement in order to
secure CCC's obligations hereunder.
"RETRIEVAL" means the production of the original, or an
acceptable facsimile of a Sales Record, credit voucher or other supporting
documentation by the Merchant at the request of Bank or an Issuing Member.
"RETRIEVAL REQUEST" means a written or electronic request by
Bank or an Issuing Member to Merchant, in the same manner permitted by the
apposite Association, for the Retrieval of a Sales Record or Credit Record,
either in the form of microfilm, Original Paper, Electronic Record, or facsimile
previously delivered in Electronic Record form to Processor.
"RULES" means, as applicable, the written rules and
regulations, system manuals procedures and requirements, and interpretations
thereof by the issuing Association, issued by an Association, as the same may be
amended from time to time.
"SALES RECORDS" means all documents or the Electronic Record
of such documents used to evidence the sale of Products through the use of
Charge Cards. The
[****]Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule
406 under the Securities Act of 1933, as amended.
6
format for each Sales Record or suitable receipt must be approved by Bank or
supplied by Bank.
"SETTLEMENT ACCOUNT" means a deposit account owned by Bank to
receive the net funds wired daily by the respective Associations in payment for
Sales Records entered into their respective settlement networks offset by
Interchange Fees, Merchant Chargebacks, and other amounts pursuant to the Rules.
"TRANSACTION" means the consummation of a sale of Products or
the initiation of a credit to a Cardholder by a Merchant by means of a Sales
Record.
"TRANSMITTAL" means the process whereby Sales Records and
Credit Records are electronically transferred in the form of Electronic Records.
II. CCC RESPONSIBILITIES
2.1 IN GENERAL.
a. Subject to the dollar limitations set
forth in Section 3.1.c, CCC may, itself or through its marketing
representatives, market the Merchant Program to Customers and encourage same to
become Merchants. CCC's participation in the Merchant Program shall be on a
non-exclusive basis, meaning that CCC may provide the same or similar marketing
and credit card processing services for institutions other than Bank. CCC will
assist Customers in completing all documents required by Bank to apply to the
Merchant Program, as set forth in Schedule A, Merchant Application Approval
Policy, attached hereto and incorporated herein by this reference and as the
same may be amended by Bank from time to time to the extent reasonably necessary
to assure compliance with the Rules and in conformity with the provisions of
Section 3.1.c, provided, however, that no merchant for whom credit card
processing services are being provided under the Prior Service Agreement upon
the execution of this Agreement shall be required to submit an application to
participate in the Merchant Program. As necessary, CCC will make copies of
application documents and forward them to Bank.
b. Except as otherwise provided in this
Agreement, CCC may combine services it is authorized to provide under this
Agreement with other services unrelated to the services offered by Bank to a
Merchant without the express written consent of Bank, to the extent not
prohibited by the Rules.
c. CCC may retain marketing representatives to
assist it in the performance of its marketing duties hereunder. CCC shall
monitor the performance of all of its marketing representatives involved in the
Merchant Program and shall be liable to Bank for any fines, fees or other costs
or charges, including but not limited to reasonable legal expenses, incurred by
Bank arising in connection therewith.
d. CCC will sell or make arrangements for the
lease or rental by Merchants of all terminals and equipment necessary for each
Merchant to participate
7
in the Merchant Program. CCC will install and, if requested by the Merchant,
maintain the terminals and equipment at no expense to Bank. Neither CCC nor any
Merchant will be required to purchase terminals and equipment from Bank. CCC
may, at its option, provide the services set forth in this subsection itself or
through one or more subcontractors.
e. CCC will provide Merchants with training
materials including, without limitation, reference manuals in a form reasonably
satisfactory to Bank and copies of the Merchant Chargeback Rules, and will use
reasonable efforts to train Merchants to operate the terminals and equipment to
enable Merchants to fulfill their obligations under the Merchant Program,
including, but not limited to, authorization and Transaction processing,
balancing and Sales Record Transmittal, and Retrievals and Merchant Chargebacks.
f. As between Bank and CCC, CCC will be
responsible for the distribution, delivery and expense of all supplies
reasonably necessary for the Merchants to perform their duties under the
Merchant Program, including but not limited to Sales Records, Sales Record
Transmittals, deposit envelopes, printer paper and ribbons. CCC may, at its
option, provide the services set forth in this subsection itself or through one
or more subcontractors.
g. CCC will input such data for each approved
Merchant on the Processor's databases necessary for the Merchant to participate
in the Merchant Program. CCC will maintain the data files to assure that all
Merchant charges are input promptly.
h. CCC will input all necessary new account
information into Processor's information system to render all exception reports
turned on and available.
i. At all times, CCC will have in place a
disaster recovery and contingency plan reasonably acceptable to Bank, a copy of
which will be delivered to Bank upon a written request of a Bank officer.
j. CCC will timely respond to all inquiries
from Merchants concerning the Merchant Program.
k. CCC will produce and pay for all materials
used by CCC in marketing the Merchant Program. All such materials used by CCC
will comply in all material respects with the Rules and shall be approved in
advance of their use by Bank.
l. CCC will monitor all Merchant Accounts daily
in accordance with the Rules to attempt to minimize Merchant Losses and shall
provide Bank with summary reports thereof.
m. CCC, at its expense and at all times in a
manner reasonably acceptable to Bank, will provide the following functions for
the Merchant Program
8
through qualified industry vendors or, at its discretion, will provide and
develop internally the necessary systems and capabilities to:
- maintain electronic authorization
and draft capture applications and
network;
- maintain an Authorization Center
for voice authorization, referrals
and Merchant instructions;
- maintain fraud detection and
control systems;
- maintain Merchant accounting and
clearing systems which will
initially be provided by Processor;
- create and transmit (initially
through Processor) to Bank daily
ACH Files for Merchant payments;
- render monthly Merchant
statements; and
- process Merchant Chargebacks and
Retrieval Requests including
compliance and arbitration cases if
not provided by the Bank pursuant
to Section 3.3;
- provide customer service to
Merchants; and
- provide Bank with copies of all
reports received from Processor
necessary for Bank to fulfill its
obligations hereunder.
n. CCC will promptly resolve rejected
Transactions identified by Processor, both those funded to the Merchant (edit
rejects) and those not funded (Transmittal rejects). If necessary, CCC will use
commercially reasonable efforts to recover funds directly from the Merchants for
all rejects that are not curable.
o. CCC will promptly identify the reasons for
each ACH credit or debit reject, correct system data as necessary, and promptly
thereafter either credit the Merchant for the funds through an ACH Transaction
or pursue all commercially reasonable efforts to collect the funds due from the
Merchant, as appropriate.
p. CCC will at all times comply in all material
respects with the Rules, all rules and regulations of any clearing house
association and all municipal, state and federal laws, as applicable, including
but not limited to responding to notice of change requests in a timely fashion.
9
q. CCC will maintain all Cardholder information
under its control and/or possession in a safe and secure manner, in compliance
with the Rules, and report to Bank annually with respect to CCC's internal
policies and procedures relating thereto.
2.2 AUDITS.
a. At any reasonable time, Bank, any
Association or banking regulatory agency may conduct, at CCC's expense,
financial and procedural audits of CCC as reasonably necessary to confirm
compliance with this Agreement and the Rules. Except in circumstances where Bank
reasonably believes a serious financial loss or liability might otherwise occur,
Bank will give CCC at least one day's prior notice of any such audit by Bank.
CCC will promptly supply such auditors with information requested by them but
only as it relates to CCC's business contemplated by this Agreement. CCC will
provide Bank with a copy of any audits performed by any such third party or
regulatory agency, but only if, and to the extent, allowed by said third party
or banking regulatory agency, as may be the case. Until all obligations of CCC
under the Note are satisfied, CCC expressly agrees to provide audited financial
statements to Bank on an annual basis, as well as monthly unaudited internal
reports; thereafter, CCC shall provide Bank with unaudited internal reports on a
calendar quarterly basis.
b. At any reasonable time, CCC may conduct, at
CCC's expense, financial and procedural audits of Bank as reasonably necessary
to confirm compliance with this Agreement and the Rules. Bank will promptly
supply such auditors with information requested by them. Bank will provide CCC
with a copy of any audits performed by an Association or regulatory agency, but
only if, and to the extent, allowed by said Association or regulatory agency, as
may be the case.
2.3 TELECOMMUNICATIONS LINKS. CCC will be responsible for
arranging for and overseeing the installation and maintenance of a direct
communications link between CCC and Processor and, as between Bank and CCC, CCC
will assume all costs associated therewith; provided, however, Bank will be
responsible for and will assume the costs of any communications links between
Bank and FDR.
2.4 NOTICES. CCC will cause its Chief Financial Officer
to give Bank immediate written notice whenever: (i) CCC receives notice from any
court or other governmental authority of any alleged non-compliance by CCC or
any of its subsidiaries, affiliates or agents with any law or regulation
applicable to the Merchant Program, (ii) the Internal Revenue Service or any
other taxing authority alleges any default by CCC in the payment of any taxes in
a material amount or threatens to make any material assessment against CCC, or
(iii) any litigation or proceeding is brought against CCC relating to the
Merchant Program.
10
2.5 CCC RESERVE ACCOUNT.
a. CCC RESERVE ACCOUNT. As of the Effective
Date, CCC has on deposit with Bank a money market account in the amount of
$250,000, denominated as the CCC Reserve Account. The CCC Reserve Account shall
remain domiciled with Bank as provided in Section 2.5.c.
b. RESERVE AMOUNT. The CCC Reserve Account
shall be maintained at the Reserve Amount. If on the fifteenth (15th) day of any
calendar month the amount in the CCC Reserve Account is less than that required
in order to maintain the CCC Reserve Account pursuant to this Section 2.5, Bank
shall give notice to CCC of such deficiency and CCC shall, within 24 hours of
such notice, deposit an additional amount into the CCC Reserve Account such that
the total funds in the CCC Reserve Account equals the Reserve Amount; provided,
however, that the maximum amount required to be deposited into the CCC Reserve
Account by CCC in any one calendar month is $50,000. If on the fifteenth (15th)
day of any calendar month the amount in the CCC Reserve Account is greater than
that required in order to maintain the CCC Reserve Account pursuant to this
Section 2.5, Bank shall give notice to CCC of such excess and CCC may withdraw
from the CCC Reserve Account such difference; provided, however, that in no
event (other than in accordance with [Section 2.5.c]) shall the amount of such
draw exceed $50,000 nor shall the funds in the CCC Reserve Account be decreased
to an amount less than one percent (1%) of the immediately preceding calendar
month's Monthly Sales Volume. CCC agrees that, in the event that CCC fails to
make a deposit into the CCC Reserve Account as required by this subparagraph,
Bank may debit the required amount from the Operating Account and deposit it
into the CCC Reserve Account.
c. CCC RESERVE ACCOUNT UPON TERMINATION. The
CCC Reserve Account shall remain domiciled at Bank throughout the term of this
Agreement, including any extensions and renewals hereof, and for a period of not
less than six (6) full calendar months following the expiration or earlier
termination of this Agreement. During said six (6) month period, on or after the
first day of each calendar month beginning with the second month thereof, CCC
may withdraw, at its sole discretion, funds from the CCC Reserve Account
according to a schedule such that the total amount of withdrawals for any
calendar month plus the total of all Merchant Chargebacks for the immediately
preceding calendar month shall not exceed one-sixth (1/6) of the total amount of
funds in the CCC Reserve Account on the date of the termination or expiration of
this Agreement, provided that on the first day of the seventh calendar month
following such termination or expiration, CCC may withdraw, at its sole
discretion, the balance of the Reserve Amount from the CCC Reserve Account. No
funds may be otherwise withdrawn from the CCC Reserve Account except as provided
in Section 2.5.b.
2.6 MERCHANT AGREEMENT. CCC will require all Customers
accepted for participation in the Merchant Program to execute a Merchant
Agreement. No such Merchant Agreement will be required when Bank and CCC have
taken an assignment of an equivalent document.
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2.7 MERCHANT RESERVE ACCOUNT AND HOLD ACCOUNT. CCC will
establish a Hold Account and a Merchant Reserve Account at Bank for the deposit
of funds, respectively, from (i) suspicious Transactions and (ii) Merchant
reserves required pursuant to the Merchant Agreements. CCC will monitor daily
Merchant activity and if in its sole judgment certain Merchants and/or certain
Transactions are possibly fraudulent or otherwise not in compliance with the
Rules, CCC will instruct the Processor to change the Merchant bank account
information to cause such Merchant funds to be deposited into the Hold Account.
CCC will thereupon promptly investigate each such suspicious incident and
promptly notify Bank of the result of each such investigation. CCC will, on a
monthly basis, offset all cumulative Merchant Losses so discovered and verified
by instructing Bank to transfer an equivalent amount of funds from the Hold
Account and/or the Merchant Reserve Account, as appropriate, to the Operating
Account. If in any case CCC's investigation determines that no violation
occurred, CCC will promptly instruct the Bank to release any funds diverted to
the Hold Account because of the alleged violation from the Hold Account to the
Merchant's DDA. CCC shall have view-only access to the Hold Account and the
Merchant Reserve Account, and no ability to itself withdraw funds from these
accounts.
2.8 SECURITY INTEREST IN ACCOUNTS. In order to secure
CCC's obligations under this Agreement and Bank's rights to indemnity and/or
reimbursement pursuant to Section 8.5 of this Agreement, and solely for such
purpose, CCC hereby grants to Bank a contractual possessory security interest
in, and hereby pledges to Bank all of CCC's right, title and interest, of
whatever nature, in and to, (i) all deposit accounts now or hereafter domiciled
at Bank in which CCC has an interest, specifically including but not limited to
the CCC Reserve Account, the Operating Account, the Hold Account and the
Merchant Reserve Account, (ii) all funds in and proceeds of such accounts, and
(iii) all writings evidencing such accounts. CCC agrees to take all actions as
may be reasonably required from time to time to establish and maintain such
security interests as set forth hereinabove.
2.9 SUBCONTRACTORS. Unless otherwise expressly provided
herein, including without limitation Section 2.1, all responsibilities of CCC
pursuant to this Agreement shall be performed by CCC and not through any agent
or subcontractor of CCC unless Bank gives its prior approval of the specific
agent or subcontractor and its services in writing, which approval shall not be
unreasonably withheld. Any such approval by Bank may be withdrawn by Bank at any
time, at Bank's reasonable discretion. Such withdrawal of approval shall be
effective immediately upon written notice thereof to CCC if for cause.
2.10. NOVATION. Bank and CCC hereby agree to cooperate in
an effort to obtain from FDR a novation (the "Novation") of Bank's existing
Processing Services Agreement with FDR (the "Existing FDR Agreement") whereby
the Existing FDR Agreement will be terminated. Bank and CCC each agree to
promptly undertake all reasonable efforts to cause the Novation to (i) contain a
statement of account by FDR of all amounts owing FDR under the Existing FDR
Agreement as of the Effective Date; (ii)
12
contain an agreement of FDR and Bank that CCC will not be liable for any amounts
in excess of such account stated for liabilities arising under the Existing FDR
Agreement prior to the Effective Date; and (iii) obtain the Novation on or
before May 1, 2001; provided, however, that nothing herein shall be construed to
require either CCC or Bank to make any payment to FDR not required pursuant to
the terms of the Existing FDR Agreement, nor to accept any reduction in services
from FDR currently provided pursuant to the Existing FDR Agreement, as any part
of the consideration for the Novation. Without prejudice to any other rights or
remedies a party may have pursuant to this Agreement or applicable law, each
party hereto acknowledges and agrees that damages would not be an adequate
remedy for any breach of this Section 2.10 and that the nonbreaching party
hereto shall also be entitled to the remedies of injunction, specific
performance and other equitable relief for any threatened or actual breach of
this Section.
III. BANK RESPONSIBILITIES
3.1 RESPONSIBILITIES OF BANK.
a. Bank will sponsor CCC at CCC's expense, as
an ISO for Visa, as an MSP for MasterCard and, to the extent applicable, as
similarly required for all other Associations and, to the extent required by any
Association, Bank also agrees to sponsor for registration with Visa and/or MCI,
at CCC's expense, those marketing representatives of CCC which are approved by
Bank, which approval may be granted or withheld for any or no reason, in Bank's
sole discretion.
b. Bank acknowledges CCC's need to maintain
multiple sponsorship relationships and agrees to assist CCC in developing new
bank relationships by way of offering introductions and an accurate and complete
description of the Bank-CCC relationship to such institutions on a feeless
referral basis.
c. Bank agrees to settle Transactions for
Merchants on a non-exclusive basis, meaning that Bank may provide the same or
similar services for persons or entities other than CCC. Bank agrees that Bank
will settle Transactions up to and including a maximum Monthly Sales Volume of
$[****] so long as the ratio of total Merchant Chargebacks (all Merchants) to
total gross dollar volume (all Merchants) is less than [****]% and total
Merchant Chargebacks (all Merchants) are less than $[****] per month. If at any
time either of such benchmarks is exceeded, Bank may reduce the maximum Monthly
Sales Volume it will settle under this Agreement to such figure as Bank
reasonably deems necessary, and the parties will cooperate in an effort to
reduce Merchant Chargebacks to levels below the benchmarks set forth in this
subparagraph, at which time the maximum Monthly Sales Volume will be restored to
$[****]. Bank will review the application of each Customer for compliance with
the requirements for participation in the Merchant Program and, in cases where
the monthly processing volume will not exceed $[****], Bank will accept or
reject a Customer within 24 hours of receipt of the Customer's application. Bank
shall accept or reject any Customer only in conformity with Schedule A, Bank's
Merchant Application Approval Policy. CCC shall assist Bank in reaching its
approval decision(s) by reviewing the Customer application, verifying the
information contained therein, and obtaining
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
13
necessary supplementary information concerning the Customer, when reasonably
requested by Bank. CCC agrees that no Customer will be permitted to participate
in the Merchant Program until such Customer fulfills all of the requirements set
forth on Schedule A. Bank's current policies regarding the approval of
applicants to the Merchant Program are contained in Schedule A. Bank may amend
the Merchant Application Approval Policy, in Bank's sole discretion but only in
reasonable conformity with industry standards regarding such matters, upon
thirty (30) days written notice to CCC. Bank agrees to review periodically with
CCC the Merchant Application Approval Policy in order to eliminate changes that
might unnecessarily result in a reduction of the economic benefits CCC
reasonably should expect to achieve under this Agreement. Bank may, in its sole
discretion, terminate any Merchant Agreement in accordance with the terms
thereof; provided, however, that in any case where a Merchant is terminated for
reasons other than actual or suspected fraud or a default, Bank will give CCC
notice of such proposed termination at least two (2) business days prior to
notifying the Merchant of its termination.
d. From time to time, and within a reasonable
time from Bank's receipt of notice of an amendment to the Rules, Bank will
advise CCC, who shall, in turn, notify each Merchant of any change in the
Merchant Program Procedures imposed by the Rules. For all Transactions, each
Merchant must comply with all such Merchant Program Procedures.
e. At CCC's request, Bank will obtain copies
for CCC of any Association manuals and publications that are available to
Acquiring Members. Bank will forward to CCC all information routinely provided
by each Association that would be helpful to CCC in fulfilling its obligations
under this Agreement. CCC will reimburse Bank for all costs incurred pursuant to
this Section 3.1.e, if any.
f. Bank will maintain all Cardholder
information under its control and/or possession in a safe and secure manner, in
compliance with the Rules, and report to Associations as required by the Rules
relating to internal policies and procedures related to Cardholder information
security.
g. Bank shall process all Merchant applications
submitted to it by CCC and shall serve as a liaison between CCC, the Merchants
and/or the Associations. CCC shall have the right to cause any Merchant who has
been approved by CCC for processing limits up to $[****] per month to be
activated immediately in the Processor's system; provided, that Bank must
receive the completed documentation for any such Merchant within one (1)
business day of its activation, after which time Bank shall have two (2)
business days in which to reject the Merchant. Bank agrees to provide CCC with a
final approval decision on submitted and complete Merchant applications (i.e.,
acceptance, rejection or required modification of the submitted Merchant
application) according to the following schedule: (i) within two (2) business
days after Bank's receipt of such application by a Merchant with a processing
limit in excess of $[****] but not more than $[****] per month; (ii) within
three (3) business days after Bank's receipt of such application by a Merchant
with a processing limit in excess of
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
14
$[****] but not more than $[****] per month; (iii) and within twelve (12)
business days for any such application by a Merchant with a processing limit
that exceeds $[****] per month, and in each case Bank shall submit such
applications to its next loan committee meeting.
3.2 SETTLEMENT RESPONSIBILITIES.
a. Bank will segregate Merchants into a BIN and
ICA separate from merchants not covered by this Agreement; provided, that ECP
Merchant Accounts, as defined in Section 10.1, shall not be so segregated. Bank
and CCC hereby agree to cooperate in an effort to reduce the number of BINs for
Merchants to two, and each shall use reasonable efforts to achieve such
reduction on or before February 28, 2001. CCC agrees to pay the costs charged by
Visa and MCI for all BINs and ICAs required for the Merchants, and for any
deconversion of BINs or ICAs undertaken pursuant to this Section.
b. Bank will establish separate Operating and
Settlement Accounts for each BIN and ICA. Bank will direct the daily net funds
wired by Visa and MCI to be deposited into the corresponding Settlement Account.
A comparable system will be set up for any other Association.
c. Bank will receive the daily ACH File(s)
from Processor, edit and format them as necessary, and transmit them to the
Federal Reserve System for credit to the Merchants. The next day payment to the
Federal Reserve for this file will be debited to the applicable Settlement
Account.
d. Bank will provide view-only system access to
CCC (or fax equivalents) to review balances and daily activity in all Settlement
and Operating Accounts to facilitate daily reconcilement.
e. Each business day Bank will transmit in a
data file ACH Return information received from the Federal Reserve through the
Processor to CCC for resolution of rejects. This file will contain the Merchant
number, routing transit, DDA number, amount, reason codes, and the original
settlement date. Funds paid or received from the Federal Reserve for the ACH
Returns will be debited or credited to the Merchant Reserve Account.
f. Bank agrees to assign a sufficient number of
qualified staff members to reasonably assist CCC in the resolution of
settlement and Merchant funding problems.
g. Bank will submit as required all statistical
information requested by Associations including quarterly statements.
CCC will provide all reasonable information to Bank to assist Bank with
compliance.
[****] Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule 406
under the Securities Act of 1933, as amended.
15
h. Bank will debit the Settlement Account or
Operating Account, as applicable, for all Assessment Fees and Association
Charges as incurred that apply to Merchants, as well as all Merchant Losses
incurred by Bank, and will provide documentation to CCC that substantiates such
debits including copies of quarterly reports.
i. Bank, as the Acquiring Principal Member,
agrees to represent CCC's interest in disputes that might arise from time to
time with an Association over compliance with Rules and fines; provided,
however, that CCC shall pay any fines or other charges imposed on Bank by an
Association relating to the Merchant Program and any and all costs reasonably
incurred by Bank in disputing the same, including but not limited to reasonable
associated legal fees.
3.3 MERCHANT CHARGEBACK RESPONSIBILITIES. Bank will
perform the Merchant Chargeback services described hereinbelow and CCC will
compensate Bank for such services as set forth in Schedule B, Bank Sponsorship
and Related Fees, attached hereto and incorporated herein by this reference and
as the same may be amended from time to time. Upon giving ninety (90) days prior
written notice to the other party, CCC may move, or Bank may require CCC to
move, its Merchant Chargeback processing to a third party service provider of
CCC's choosing and/or perform such services itself. As used herein, "Merchant
Chargeback Services" means the following services, to be performed in accordance
with Association Rules as such may be amended from time to time:
a. Process first and second Merchant
chargebacks to Merchant Accounts.
b. Notify Merchants of incoming Merchant
chargebacks.
c. Review Merchant rebuttals.
d. Advise Merchants on rebuttals.
e. Process representments on first Merchant
chargebacks, in the event Merchant has
provided rebuttal pursuant to the Rules.
f. Process incoming and outgoing pre-compliance
requests.
g. Process incoming and outgoing good-faith
requests.
h. Process pre-arbitration requests on second
Merchant chargebacks.
i. File arbitration and compliance cases with
the Associations, when necessary.
16
j. Answer incoming Merchant phone calls.
k. Process debits and credits created as a
result of any of the services set forth
above in this Section 3.3.
3.4 CONFIDENTIALITY AND NON-COMPETITION.
a. Bank and CCC each agree that it shall not
directly and knowingly solicit the employees or marketing representatives of the
other; provided, however, that nothing herein shall be construed as preventing
either party from entering into discussions and/or agreements with any employee
or marketing representative who responds to a general solicitation or who
initiates the contact.
b. During the term of this Agreement and for a
period of three (3) years following the expiration or termination of this
Agreement, Bank shall not solicit any of CCC's Merchant base; provided, however,
that nothing herein shall be construed to prevent Bank from entering into
discussions and/or agreements with any Merchant which responds to a general
solicitation by Bank or initiates the contact with Bank.
c. Bank acknowledges and agrees that CCC has
expended great time and effort in developing its merchant services for the
retail marketplace. Bank further acknowledges that all data, printed and written
material, application forms, contracts and other information furnished by CCC to
Bank ("CCC Proprietary Information"), shall be regarded by Bank as confidential
and proprietary. CCC Proprietary Information includes, but is not limited to,
information pertaining to CCC's business methods, details regarding the
functioning of the Specialized Merchant Accounting and Reporting System (SMART)
and computer systems, trade secrets, know-how, inventions, techniques,
processes, programs, schematics, software source documentation, customer lists,
financial information, sales business and marketing plans and all of the
contracts and correspondence generated by CCC concerning the same. Bank's use of
CCC Proprietary Information is limited to the term of this Agreement. Bank shall
not use or disclose any of CCC Proprietary Information to any other person or
entity during the term of this Agreement and for three (3) years thereafter;
provided, that Bank shall not disclose any trade secret at any time prior to its
losing its status as such. At the termination of this Agreement, CCC will
provide Bank with a list of materials and other information that CCC deems to be
CCC Proprietary Information and subject to the terms of this Section 3.4.c. Bank
agrees to return to CCC all CCC Proprietary Information so listed and then in
Bank's possession within thirty (30) days of such notice. This Section 3.4.c
shall be inoperative as to such portions of the CCC Proprietary Information
which (i) is or becomes generally available to the public other than as a result
of any breach of this Agreement by Bank or its representatives, or (ii) becomes
available to Bank on a nonconfidential basis from a source other than CCC which
source is entitled to disclose that information. In the event that Bank is
requested or becomes legally compelled to disclose any CCC Proprietary
Information, Bank will provide CCC with prompt written notice so that CCC may
seek a protective order or other appropriate
17
remedy and/or waive compliance with the provisions of this Agreement and Bank
will cooperate with CCC in the effort of CCC to obtain a protective order or
other remedy. In the event that a protective order or other remedy is not
obtained or CCC waives compliance with the provisions of this Agreement, Bank
will furnish only that portion of the CCC Proprietary Information which is
legally required and will exercise its best efforts to obtain reliable assurance
that confidential treatment will be accorded the CCC Proprietary Information.
Notwithstanding anything to the contrary contained herein, Bank acknowledges
that CCC is the owner of the CCC Proprietary Information and Bank has received
access thereto solely for its use in performing its obligations pursuant to this
Agreement. Nothing in this Agreement shall be construed as a transfer of
ownership of CCC Proprietary Information.
d. CCC acknowledges that customers of Bank have
an expectation of privacy with respect to their financial transactions and
personal data, and hereby agrees that any and all such information CCC may
acquire with respect to said customers during the term of this Agreement (i)
shall be regarded by CCC as confidential; (ii) shall not be disclosed to any
other person or entity except in accordance with the provisions of this
Agreement or other agreement between Bank and CCC entered into pursuant to this
Agreement; and (iii) will be returned to Bank on request within thirty (30) days
after the expiration or earlier termination of this Agreement. In the event that
CCC is requested or becomes legally compelled to disclose any such information,
CCC will provide Bank with prompt written notice so that Bank or its customer
may seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this paragraph and CCC will cooperate with Bank in the
effort of Bank or its customer to obtain a protective order or other remedy. In
the event that a protective order or other remedy is not obtained or Bank waives
compliance with the provisions of this paragraph, CCC will furnish only that
portion of the information which is legally required and will exercise its best
efforts to obtain reliable assurances that confidential treatment will be
accorded the information.
e. Notwithstanding anything contained in this
Agreement to the contrary, Bank and CCC understand and mutually agree that CCC
shall have the right to solicit, without limitation, any merchant to participate
in any merchant processing program developed and managed by CCC, including the
right to solicit past or present merchants of Bank.
3.5 MERCHANT LOSSES. All Merchant Losses incurred by Bank
for any reason other than the negligence, recklessness or willful misconduct of
Bank will be paid by CCC as set forth in Section 8.5.
3.6 DINERS CLUB. At CCC's request, Bank will participate
in the licensing program of Diners Club for each Processor bank number of CCC's
so requested. Bank will settle Diners Club in the same manner as Visa and MCI as
described in this Agreement. Any Merchant may apply to CCC to process Diners
Club card Transactions. If approved and the Merchant enters into a Merchant
Agreement for the Diners Club program, CCC and Bank will supply Diners Club
processing and settlement
18
services in accordance with the terms of the Merchant Agreement and the Diners
Club operating regulations.
3.7 MERCHANT AGREEMENT ASSIGNMENT AND PORTABILITY OF
MERCHANT ACCOUNTS. Bank acknowledges that CCC has developed the primary
relationship with the Merchants and owns the Merchant Accounts notwithstanding
that Bank is a party to any Merchant Agreement or any Association requirement
that Bank must be a party to same. CCC shall therefore have the right, at any
time after both (i) the satisfaction of CCC's obligations in full under the Note
and (ii) the earlier to occur of either the receipt of the Novation or the
failure to receive the Novation by May 1, 2001 despite the reasonable efforts of
CCC in accordance with Section 2.10 (collectively, subparagraphs (i) and (ii)
above are referred to herein as the "Conditions"), and from time to time
thereafter upon ninety (90) days written notice to Bank of the identity of both
the assignee Acquiring Member(s) and of the Merchants to be assigned, to direct
Bank to, and Bank shall, assign the Merchant Agreements relating to the
Merchants so identified, including all Merchant files and records (paper and
fiche), related Merchant Reserve and Hold Accounts, BINs, ICAs and databases
relating thereto, to one or more other Acquiring Members of Visa or MCI
designated by CCC, which other Acquiring Members could be in competition with
Bank. Bank agrees to transfer the Merchant files, Merchant Agreements, related
documents and other items described herein within ninety (90) days of receipt of
CCC's request for such assignment at no expense to CCC other than the reasonable
cost of copying, shipping, supplies, and any related Association and Processor
fees.
3.8 SUBCONTRACTORS. Unless otherwise expressly provided
herein, all responsibilities of Bank pursuant to this Agreement shall be
performed by Bank and not through any agent or subcontractor of Bank unless CCC
gives its prior approval of the specific agent or subcontractor and its services
in writing, which approval shall not be unreasonably withheld. Any such approval
by CCC may be withdrawn by CCC at any time, at CCC's reasonable discretion. Such
withdrawal of approval shall be effective immediately upon written notice
thereof to Bank if for cause.
IV. MERCHANT OBLIGATIONS
4.1 MERCHANT TRANSACTION PROCESSING FEES AND OTHER
CHARGES. The Merchant Transaction Processing Fee rate and other charges for
Merchants are set forth in Schedule C, Merchant Transaction Processing Fees,
attached hereto and incorporated herein by this reference and as may be amended
from time to time in accordance with the provisions of Section 4.2 below. The
Merchant Transaction Processing Fees and other charges must comply with
applicable Rules and all municipal, state or federal laws. As soon as possible
but not later than five (5) business days following the execution of this
Agreement, Bank will deposit into the Operating Account an amount equal to the
difference between the Transaction Fees received by CCC since the Effective Date
pursuant to the Prior Service Agreement and the amount CCC would have otherwise
received pursuant to this Agreement.
19
4.2 CHANGES IN MERCHANT TRANSACTION PROCESSING FEES AND
OTHER CHARGES. CCC may amend the Merchant Transaction Processing Fees and
monthly charges as often and in such amounts as it desires, and with the
approval of Bank which approval shall be granted except where such amendment is
prohibited by the Rules. Written notice of an amendment to any of the fees
and/or charges shall be given to Merchants by CCC in accordance with the terms
of the Merchant Agreement. If not addressed in the Merchant Agreement, written
notice must be received by Merchants at least ten (10) days prior to the
effective date of the amendment.
V. FEES AND CHARGES
5.1 CCC COMPENSATION. All Merchant Transaction Processing
Fees will accrue to the benefit of CCC, subject to any claims of Bank against
CCC pursuant to the provisions of Section 8.5 of this Agreement. Processor will
collect such fees through ACH debits to the applicable Merchant DDA on a daily
or monthly basis, as appropriate pursuant to the Merchant Agreement, and
transmit them to Bank for deposit into the appropriate Settlement Accounts.
Until the earlier of June 14, 2001 or such time as all obligations of CCC to
Bank under the Note have been satisfied, funds due CCC pursuant to this
Agreement will be settled daily or monthly, as the same are received by Bank
from the Processor, by ACH transfer from funds in the Operating Account to a
deposit account designated by CCC from time to time; thereafter, all funds due
CCC pursuant to this Agreement will be settled monthly. Monthly settlements
shall occur on the 15th day of each calendar month for all Transactions posted
in the immediately preceding calendar month, by ACH transfer from funds in the
Operating Account to a deposit account designated by CCC from time to time.
5.2 BANK COMPENSATION. Bank shall be entitled to such
fees as are set forth in Schedule B, which Bank may collect by debiting the
Operating Account on a frequency as described in Schedule B.
5.3 DEPOSITED FUNDS. On and after the satisfaction of the
Conditions (as defined in Section 3.7) and the reduction of all BINs to two have
all occurred, CCC shall thereafter be further entitled to compensation of [****]
per annum of the total amount held on deposit at Bank in non-interest earning
deposit accounts of Merchants on which Humboldt is not obligated to pay
interest earnings to any third party, including without limitation the Hold
Account and the Merchant Reserve Accounts. It is expressly understood and
agreed that funds held on ACH hold and in Certificates of Deposit are excluded
from the provisions of this Section 5.3 and that no compensation shall be paid
by Bank thereon.
5.4 PAYMENT OF COMPENSATION. Except as otherwise set
forth in Section 5.1, all payments required to be made to CCC by Bank pursuant
to this Agreement shall be paid monthly on or before the fifteenth day of the
month by direct deposit into a DDA designated from time to time by CCC.
[****] Represents material which has been redacted and filed separately with the
Commission pursuant to a request for confidential treatment pursuant to Rule
406 under the Securities Act of 1933, as amended.
20
5.5 COMPARABLE PRICING OFFERED. Bank agrees that,
notwithstanding anything to the contrary contained in Schedule B, the pricing
provided by Bank to CCC set forth in this Agreement (including interest amounts
and compensation pursuant to Section 5.3 paid under this Agreement) shall be no
less favorable to CCC, when viewed as a total package, than pricing offered or
given by Bank to other ISOs or MSPs. In the event that Bank offers more
favorable total pricing and interest package to any other ISO or MSP, Bank
agrees to amend this Agreement as soon thereafter as is reasonably practicable
to provide CCC with an at least equivalent pricing and interest schedule.
VI. THIRD-PARTY REQUIREMENTS
6.1 VISA/MCI REQUIREMENTS.
a. CCC agrees to register with MCI as a Member
Service Provider, to enter into an MSP agreement with MCI and Bank, and pay any
fees required by MCI. CCC also agrees to register as an Independent Sales
Organization with Visa and pay any fees required by Visa. CCC also agrees to
enter into similar arrangements as required by other Associations, when
applicable.
b. Bank and CCC agree that, in the event of any
inconsistency between this Agreement and the Rules, the Rules will apply.
c. Upon request, CCC will provide records
containing Merchant information to Bank, any Association or any regulatory
agency, as soon as possible but no later than seven (7) days from CCC's receipt
of a request for such information.
d. CCC agrees that each Association has the
right, either in law or in equity, to enforce any provision of the applicable
Rules and to prohibit CCC conduct that creates a risk of injury to the
Association or that may adversely affect the integrity of the Association, its
Charge Card information or both. CCC agrees to refrain from taking any action
that would have the effect of interfering with or preventing an exercise of such
right by any Association.
e. CCC will disclose all Merchant Transaction
Processing Fees clearly and conspicuously to Merchants in writing prior to any
payment or application.
VII. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF CCC. CCC represents
and warrants to Bank that:
a. GOOD STANDING. CCC is a corporation
organized, validly existing and in good standing under the laws of the State of
California, and has its principal office in Los Angeles, California.
21
b. AUTHORITY. CCC has full authority and
corporate power to enter into this Agreement and to perform its obligations
under this Agreement.
c. COMPLIANCE WITH THE RULES. CCC agrees that
it shall use reasonable efforts to abide by all applicable Rules, as the same
may be amended from time to time, at all times hereunder. CCC further agrees to
provide each of its approved marketing representatives with materials and
information provided to CCC by Bank or any Association pertaining to the Rules,
and that CCC will use reasonable efforts to ensure that all its marketing
representatives are familiar with, and will comply with, all applicable Rules.
7.2 REPRESENTATIONS AND WARRANTIES OF BANK. Bank
represents and warrants to CCC that:
a. GOOD STANDING. Bank is a California bank
organized, validly existing and in good standing under the laws of the State of
California; and has its principal office in Eureka, California.
b. AUTHORITY. Bank has full authority and power
to enter into and perform their obligations under this Agreement.
c. STANDARD OF PERFORMANCE. Bank shall perform
all services hereunder consistent with the standards of performance utilized by
Bank in performing such services for its other customers.
VIII. TERM, TERMINATION, DEFAULT, INDEMNIFICATION
8.1 TERM. This Agreement will become effective on the
Effective Date, and unless terminated earlier in accordance with the provisions
of this Agreement, will terminate on October 31, 2001 ("Initial Term"). The
Agreement will automatically renew for one year periods ("Renewal Term") unless
either party provides the other with written notice of termination of at least
one hundred and eighty (180) days prior to the end of the Initial Term or any
Renewal Term.
8.2 TERMINATION. Notwithstanding Section 8.1, the parties
will have the following rights and obligations:
a. ABILITY TO PERFORM. If Visa or MCI prohibits
CCC from providing, or prohibits Bank from allowing CCC to provide, the services
set forth in this Agreement, or if Bank becomes insolvent or is no longer an
Acquiring Member of Visa or MCI, this Agreement will automatically and
immediately terminate. In addition, Bank may terminate this Agreement upon
ninety (90) days written notice to CCC in the event Bank becomes subject to any
change in a statute, law, rule, regulation, policy or other official
pronouncement of any state or federal government entity regulatory agency or of
22
Visa or MCI which would prohibit Bank from continuing the business described in
this Agreement.
b. OBLIGATIONS UPON TERMINATION. Within ninety
(90) days following the expiration or earlier termination of this Agreement for
any reason, CCC will contract with a third party to perform Bank's duties under
this Agreement, and Bank will assign the Merchant Agreements, including all
Merchant files and records (paper and fiche), BINs, ICAs and databases relating
to such Merchants and Merchant Agreements, to said third party at no expense to
CCC other than the cost of copying, shipping, supplies, and any related
Association and Processor fees. Pending such assignment, the rights and
obligations of the parties (including, without limitation, the rights and
obligations relating to compensation under Sections 5.1 and 5.2 hereof) shall
continue to be governed by this Agreement in all respects. The above
notwithstanding, Bank shall be under no obligation to assign the Merchant
Agreements until all obligations of CCC to Bank under the Note have been
satisfied.
8.3 DEFAULT. Each of the following occurrences will
constitute an Event of Default under this Agreement:
a. FAILURE TO PAY. Either party fails to pay
any amount due the other under this Agreement which in the aggregate is equal to
or greater than $50,000.00 and such failure continues for a period of (i) ten
(10) business days in the case of CCC with respect to fees specified in Schedule
B and in the case of Bank with respect to fees provided for in Article V, and in
the case of either party with respect to any other undisputed amounts, and (ii)
thirty (30) days for failure to pay any other amounts due under this Agreement
after notice has been sent to the non-paying party.
b. FAILURE TO DEPOSIT. The failure of CCC to
deposit funds into the CCC Reserve Account or of Bank to deposit funds into the
Operating Account in accordance with the provisions of this Agreement, within
fifteen (15) days of notice from the nondefaulting party of the amount of any
required deposit therein.
c. BANKRUPTCY. Either party: (i) files for
bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation
or any similar proceedings applicable to banks or corporations, as applicable,
or (ii) has such a proceeding instituted against it and such proceeding is not
dismissed within sixty (60) days.
d. FALSE REPRESENTATION. Any representation or
warranty made by either party proves to have been false or misleading in any
material respect as of the date made, or becomes false or misleading (in any
material respect) at any time, and the party making such false or misleading
statement fails to resolve to the satisfaction of the other party hereto any
potential economic or operational hardships or risks resulting therefrom or
otherwise satisfy such party within thirty (30) days of notice specifying the
breach.
23
e. BREACH. A party fails to observe any other
material obligation specified in this Agreement, and such failure is not cured
within thirty (30) days (or in the event such breach can be cured but cannot be
reasonably cured within thirty (30) days, within such longer period of time (not
to exceed ninety (90) days) as is required to cure the same, provided the
breaching party promptly commences and diligently pursues remedial action to
completion) of a notice specifying the breach. Notwithstanding the previous
sentence, the second occurrence of the same or a similar failure in any
consecutive twelve (12) month period will automatically be deemed an Event of
Default without the right to cure.
f. BREACH OF NOTE. An Event of Default by CCC
under the Note.
8.4 DEFAULT. If an Event of Default occurs, in addition
to all other recourse and remedies available to the non-defaulting party the
non-defaulting party will have the right to immediately terminate this
Agreement.
8.5 INDEMNIFICATION AND GUARANTY.
a. CCC INDEMNIFICATION. CCC will indemnify,
defend and hold Bank harmless from and against any and all obligations, charges,
liabilities, costs, fees, or expenses, including without limitation, court costs
and reasonable attorneys' fees (including allocated costs of internal counsel),
which Bank may incur or which may be claimed against Bank by any person as a
result of: (i) acts or omissions of CCC, its directors, officers, employees,
marketing representatives, subcontractors or agents relating to the exercise of,
or the failure to exercise, CCC's obligations under this Agreement, (ii) any
Merchant Loss, or (iii) all federal, state and local taxes, duties and similar
assessments based on or arising out of this Agreement, excluding taxes based on
Bank's net income, excepting therefrom Bank's internal costs relating thereto.
b. BANK INDEMNIFICATION. Bank will indemnify,
defend and hold CCC harmless from and against any and all obligations, charges,
liabilities, costs, fees, increased taxes (excluding taxes based on Bank's net
income) or expenses, including without limitation, court costs and reasonable
attorneys' fees (including allocated costs of internal counsel), which CCC may
incur or which may be claimed against CCC by any person as a result of acts or
omissions of Bank, its directors, officers, employees, subcontractors or agents
relating to the exercise of, or the failure to exercise, Bank's obligations
under this Agreement; provided, however, that the indemnification set forth in
this subparagraph shall not extend to any actual or alleged liability based upon
an act or omission of an ISO or MSP sponsored by CCC.
c. REIMBURSEMENT OF BANK. Except where a
different treatment is expressly provided in this Agreement, CCC hereby agrees
to indemnify and reimburse Bank for and against any and all costs, whether
incurred prior to or after the expiration or earlier termination of this
Agreement, of the following nature incurred by Bank under the Merchant Program
on and after the Effective Date:
24
i. Charges imposed on Bank by third
parties relating to processing
Transactions, including, without
limitation, interchange fees;
application fees; Chargeback fees;
ACH reject fees; ISO/MCP
registration fees; Association
fines, assessments and charges;
high risk registration fees; and
similar third-party charges.
ii. Legal expenses and/or liabilities
incurred by Bank resulting from any
action or inaction of CCC, or of an
agent or marketing representative
of CCC, or a Merchant, including,
without limitation, damages, legal
settlements, court costs and
reasonable attorneys' fees
(including allocated costs of
internal counsel).
iii. Costs incurred by Bank for any
activity undertaken for the direct
benefit, and with the prior
approval, of CCC, including,
without limitation, reimbursement
of charges for classes providing
education to CCC employees or
representatives.
It is expressly understood and agreed that CCC will not be liable for any of
Bank's internal costs relating to the Merchant Program, including, without
limitation, Bank's costs for labor and benefits, and Bank's ordinary business
operating costs (e.g., rent, utilities, etc.). The responsibility for and/or
allocation of any cost incurred by Bank which does not fall within a category
set forth in this Subsection 8.5.c shall be negotiated at the time so incurred
and Bank and CCC hereby agree to reasonably enter into and conclude any such
negotiation promptly.
d. CCC GUARANTY. CCC guarantees the payment
when due of all indebtedness and liabilities ("Indebtedness") of each Merchant
to Bank pursuant to the Merchant Agreement, and any renewals, extensions,
substitutions or modifications thereof, between the Merchant and Bank, upon
notice to CCC, whether any such Indebtedness is voluntarily or involuntarily
incurred, absolute or contingent, liquidated or unliquidated, and whether
recovery thereon may be or may become barred or unenforceable against such
Merchant for any reason whatsoever. This Guaranty as to each Merchant will
remain in effect until the later of one hundred eighty (180) days after the
expiration or earlier termination of this Agreement, including any and all
extensions thereof, or all Indebtedness incurred or contracted by Transactions
submitted to Bank by such Merchant prior to the expiration or earlier
termination of this Agreement shall have been fully and finally paid and
satisfied. CCC agrees that it may not revoke this Guaranty as to any
Indebtedness except by means of a modification to this Agreement made pursuant
to the provisions of Section 11.4 hereof. Any such revocation will apply only to
new Indebtedness created after any such modification containing such a
revocation
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becomes effective. CCC also waives all of CCC's rights of subrogation,
reimbursement or indemnity derived from each Merchant until all Indebtedness of
that Merchant to Bank subject to the Guaranty of CCC has been fully paid and
satisfied, and all other rights and defenses available to CCC by reason of
California Civil Code Sections 2787 to 2856, inclusive, or any similar
suretyship laws including, without limitation, any and all right or defenses
arising by reason of any modification or change in the terms of the Merchant
Agreement whatsoever, including, without limitation, the renewal, extension,
acceleration, or other change in the time any payment or other performance
thereunder is due, and/or any change in any discount fee thereunder. This
subparagraph shall not be construed as in limitation of any other provision of
this Agreement.
e. SPECIFIC INDEMNITY RELATING TO FDR. CCC will
indemnify, defend and hold Bank harmless from and against any and all liability,
claim, cause of action, loss, damages (liquidated or unliquidated), fee
(including, without limitation, any minimum fee), or expense (other than
expenses incurred by Bank for Bank's ordinary internal business operations) of
any kind including, without limitation, reasonable attorneys' fees and other
costs of defense (individually and collectively, "Liability") which in any way
arises from any action or inaction relating to the Existing FDR Agreement and
occurring on or after the Effective Date; provided, however, that this indemnity
shall not apply to any Liability (i) to the extent such Liability is proximately
caused by breach of the Existing FDR Agreement resulting from Bank's wrongful
action or inaction, whether wilful or negligent, or (ii) resulting from a breach
of the exclusivity covenants contained in the Existing FDR Agreement which
breach is not occasioned by action of CCC. Bank and CCC hereby agree that any
and all obligations as between them with respect to any Liability arising
pursuant to the Existing FDR Agreement and based upon an action or inaction
which occurred prior to the Effective Date shall be governed by the provisions
of the Prior Service Agreement, the provisions of which shall survive its
supersedure by this Agreement for this limited purpose. In the event any
Liability arises under the Existing FDR Agreement which is caused in whole or in
part by Electronic Check Processing, Inc. ("ECP"), Bank hereby agrees that, upon
CCC fulfilling its obligation to indemnify Bank pursuant to this Subsection, CCC
shall be subrogated to all of Bank's rights (including guarantees, security or
otherwise) related to such Liability under any Agreement between ECP and Bank,
and that Bank shall undertake such steps as are reasonable and appropriate to
assist CCC in pursuing such rights.
f. DEBITING OF CCC ACCOUNTS. CCC agrees that,
in the event Bank incurs any expense, loss, damage, liability or other cost
which Bank in good faith believes is covered by CCC's obligations pursuant to
this Section 8.5, Bank may reimburse itself therefor by immediately debiting any
or all of CCC's deposit accounts domiciled at Bank (including, but not limited
to, the Operating Account and the CCC Reserve Account), in such order as Bank
may in its sole judgement deem appropriate. Bank will promptly provide CCC with
documentation that substantiates such debits; provided, with respect to any
exceptional debits (i.e., debits occurring outside the course of normal daily
settlement items), Bank will notify CCC within 24 hours thereof. Any amounts
thereof disputed by CCC or with respect to which Bank has not yet sustained an
actual loss shall be placed in escrow, in a Money Market Account at Bank,
pending
26
resolution of such dispute. Bank will pay CCC from the escrow account, including
interest thereon, any amounts finally resolved to be not owing Bank hereunder.
Bank agrees that it shall not exercise its reimbursement rights under this
Section 8.5.f with respect to any claim hereunder for a Merchant Loss until all
reserves and deposits of the Merchant involved held by Bank have been fully
depleted. After Bank has been fully reimbursed for a Merchant Loss pursuant to
this Section 8.5, at the request of CCC, Bank will assign to CCC any and all of
Bank's subrogation rights under or related to the Merchant Agreement (including
Guarantees, security or otherwise) related to the Indebtedness of such Merchant.
IX. NAMES AND TRADEMARKS
9.1 BANK NAME. Neither CCC nor any of its representatives
may use Bank's name in any promotional or marketing materials, or promote Bank's
programs in any way without Bank's prior written consent. CCC will obtain Bank's
written consent before CCC or any third party, at CCC's direction or with its
consent, produces or distributes any materials relating or referring to the
Merchant Program. All correspondence, materials and/or oral solicitations
directed by CCC or its marketing representatives to Customers, or produced by
any third party, concerning Bank's programs must prominently identify Bank by
its name (i.e., Humboldt Bank) and the city in which Bank is located (i.e.,
Eureka, California).
9.2 CHARGE CARD TRADEMARKS. CCC acknowledges that the
Associations are the sole owners of their respective trademarks. CCC will not
contest the ownership of such marks, and any Association may at any time and
immediately without advance notice prohibit CCC from using its marks for any
reason. CCC may not use or permit the Charge Card trademarks on any material
without Bank's prior written consent. All material that contains the Charge Card
trademarks must clearly identify CCC as Bank's representative. CCC will have no
authority to permit use of the trademarks owned by any Association or Bank by
any of its own agents or representatives. Solicitation material used by CCC must
clearly disclose that any Transaction Processing Agreement will be between the
Customer and Bank.
X. EXISTING ECP MERCHANT ACCOUNTS
10.1 TREATMENT OF ECP MERCHANT ACCOUNTS. Bank and CCC each
are providing services as of the Effective Date to certain merchant accounts
(hereinafter the "ECP Merchant Accounts") pursuant to certain agreements entered
into separately with Electronic Check Processing, Inc. ("ECP"), a California
corporation, namely (i) a "MERCHANT PROGRAM MANAGEMENT AGREEMENT," effective as
of May 28, 1998, by and between Bank and ECP, and (ii) a TRANSITION SERVICES
AGREEMENT," effective as of May 28, 1998, as amended, by and between CCC
(formerly known as "Electronic Card Systems, Inc.") and ECP (collectively
hereinafter referred to as the "ECP Agreements"). It is intended and agreed
between Bank and CCC that the terms and provisions of this Agreement shall
govern with respect to the rendering of services by each to the ECP Merchant
Accounts, and that this Agreement shall operate
27
as a subcontract, to the extent necessary and solely as between Bank and CCC, of
any of the services required pursuant to the ECP Agreements. It is further
understood and agreed between Bank and CCC that all provisions relating to
compensation, allocation of income, reserves, ownership of accounts, security
interests, subrogation, reimbursements, guaranties and/or indemnities relating
to the ECP Merchant Accounts shall be governed by the provisions of the ECP
Agreements, respectively, and not by this Agreement. Nothing herein is intended
to nor shall be construed as affecting any right or responsibility of ECP under
the ECP Agreements.
XI. MISCELLANEOUS
11.1 LATE PAYMENTS. All amounts past due under this
Agreement shall bear interest at Bank's reference rate plus two (2) percent. As
used herein, the Bank's "reference rate" means the rate designated from time to
time in the Money Rates Section of the Wall Street Journal as the "Prime" rate.
11.2 ASSIGNABILITY; SALE OF THE PARTIES. No party may
assign, transfer or otherwise delegate this Agreement without the prior written
consent of the other party; provided, however, that in the event of any sale of
all or substantially all of the assets of, or merger, consolidation, conversion
or other reorganization involving a party, any successor to the party by reason
thereof shall succeed to all of the party's rights and obligations hereunder,
without the necessity of any consent of the other party.
11.3 NOTICE. Any notice or other communication hereunder
must be given in writing and shall be deemed duly given to a party (a) when
delivered, if personally served; (b) when sent and receipt has been confirmed,
if by fax, e-mail or similar electronic transfer; (c) two (2) business days
after it is sent by express, registered or certified United States mail, return
receipt requested, postage prepaid; or (d) one (1) business day after it is sent
by overnight courier; in each case, to the address of such party set forth
below:
to Bank: Humboldt Bank
0000 0xx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
to CCC: xxxxxxxxxxx.xxx
0000 Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
or to such other address or to such other person as either party shall have last
designated by notice to the other.
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11.4 ENTIRE UNDERSTANDING, AMENDMENT. This Agreement,
including the Schedules which are incorporated by reference, sets forth the
entire understanding of the parties relating to its subject matter, and
supersedes all prior agreements, understandings and contracts between the
parties with respect to the specific subject matter hereof, particularly
including, but not limited to the Merchant Program Management Agreement between
the parties, effective as of the 1st day of August, 1998, as amended, which is
hereby terminated; provided, however, that (i) any other agreements between the
parties relating to other programs or having additional parties or establishing
different relationships between the parties hereto, (ii) existing UCC-1 filings
relating to said Merchant Program Management Agreement and naming Bank as the
secured party, (iii) any allocations of income pursuant to said Merchant Program
Management Agreement prior to the Effective Date of this Agreement, and (iv) any
guaranties, indemnities, and provisions for reimbursement set forth in said
Merchant Program Management Agreement insofar as the same shall relate to
matters occurring prior to the Effective Date of the Agreement, shall continue
in force according to their terms and shall not be affected. This Agreement may
not be amended except in a writing executed by all parties.
11.5 SEVERABILITY. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the invalidity of such provision will not affect any of the remaining
provisions, and this Agreement will be construed as if the invalid provision is
not contained in the Agreement.
11.6 NO WAIVER OF RIGHTS. No failure or delay on the part
of either party in exercising any right under this Agreement will operate as a
waiver of that right, nor will any single or partial exercise of any right
preclude any further exercise of that right.
11.7 SUCCESSORS AND ASSIGNS. This Agreement will inure to
the benefit of and will be binding upon the parties and their respective
permitted successors and assigns.
11.8 APPLICABLE LAW. The Agreement will be deemed to be a
contract made under the laws of the State of California, and will be construed
in accordance with the laws of California without regard to principles of
conflicts of law.
11.9 INDEPENDENT CONTRACTORS. CCC shall be an independent
contractor of Bank and nothing contained herein shall be construed to imply the
existence of a partnership or joint venture between CCC and Bank, nor to make
CCC an agent of Bank, or Bank an agent of CCC. CCC shall not, under any
circumstances or conditions, or for any purpose or reason whatsoever, claim to
be or imply that CCC, or any of its employees, are agents, officers, directors
or employees of Bank. Neither party hereby shall have, nor represent itself as
having, any right, power or authority to create any obligations, express or
implied, on behalf of or binding on the other party.
29
11.10 CONSTRUCTION. The headings used in this Agreement are
inserted for convenience only and will not affect the interpretation of any
provision. All sections mentioned in the Agreement reference section numbers of
this Agreement. The language used will be deemed to be the language chosen by
the parties to express their mutual intent, and no rule of strict construction
will be applied against any party.
11.11 FORCE MAJEURE. No party will be liable for its
failure to perform under this Agreement if such failure arises out of causes
beyond the control and without the fault or negligence of that party. Such
causes may include but are not limited to acts of God, fires, wars, riots, labor
disputes or shortages, electrical or mechanical breakdowns, acts, omissions or
delays by an Association or other unaffiliated third parties, acts of civil or
military authorities, or any other cause beyond control of that party.
11.12 MEDIATION AND ARBITRATION. If any dispute between CCC
and Bank arising under this Agreement cannot reasonably be resolved by the
parties through mutual negotiation, the parties hereby agree that the claim or
dispute will be resolved by mediation and/or arbitration as set forth in this
Section 11.12. Except under circumstances where there is a reasonable likelihood
that a serious injury to the rights of a party may occur with respect to which
there exists a reasonable possibility that the injured party will not be
recompensed even after obtaining an award in arbitration, including without
limitation specific enforcement of this Agreement, any dispute under this
Agreement will first be submitted to informal and non-binding mediation before
an impartial mediator or referee acceptable to both parties, who will hear the
issues and guide the parties to a fair and equitable resolution. If the dispute
or claim cannot be resolved through mediation, the parties hereby agree that the
matter will then be submitted to and decided by arbitration under the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The decision of the arbitrator shall be final and shall
bind each party hereto. The provisions of chapter 2 (commencing with Section
1281) of Title 9 of Part 3 of the California Code of Civil Procedure shall
govern this arbitration provision, except that the venue of any mediation or
arbitration proceeding shall be in Humboldt County, State of California. Each
party shall bear its own expenses and attorneys' fees incurred in connection
with these dispute resolution procedures and will share equally the fees and
expenses of the mediator(s) or arbitrator(s). Except as otherwise expressly
provided in this Section 11.12, this agreement to mediate or arbitrate waives
any right to trial by jury.
11.13 EXPENSES. Each party to this Agreement shall perform
its respective responsibilities hereunder at no cost or expense to the other
party to this Agreement, except as expressly provided for herein.
[The remainder of this page intentionally left blank.]
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11.14 SURVIVAL. Sections 2.5, 2.7, 2.8, 3.4, 3.7 and 8.5
shall survive any expiration or earlier termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first indicated hereinabove.
HUMBOLDT BANK
By: /s/ illegible
Its: V.P.
Date: 10/31/00
XXXXXXXXXXX.XXX
By: /s/ Xxxxxx X. Torino
Its: Executive Vice President
Date: 11/1/00
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