EXHIBIT 10.1
SERVICES AGREEMENT
This Services Agreement (the "Agreement") is entered into effective
April 1, 2003 (the "Effective Date") between WILDCARD SYSTEMS, INC., a Florida
corporation ("WildCard") and CORPORATE SPORTS INCENTIVES, INC., a New Hampshire
corporation ("Client"), each a "Party" and collectively, the "Parties".
RECITALS
A. Client desires to offer Transaction Card Programs to its Customers.
B. Client desires that WildCard providd Client with certain data processing and
related services in connection with Client's Transaction Card Programs, and
WildCard desires to perform certain data processing and related services to
Client in connection with Client's Transaction Card Programs, on the terms and
conditions described in this Agreement.
WildCard and Client agree as follows:
1. DEFINITIONS
1.1 DEFINED TERMS. The following capitalized terms shall have the
meanings given to them below when used in this Agreement:
"AAA" is defined in Section 11.3(a) of this Agreement.
"Acceptance Period" is defined in Section 3.4 of this Agreement
"Affiliate" is defined in Section 13.5 of this Agreement.
"Agreement" shall mean this Service Agreement as amended from time to
time including any Schedules attached hereto and Program Schedules which are
entered into between the Parties from time to time during the term hereof.
"Arbitration Demand" is defined in Section 11.3(b) of this
Agreement.
"Arbitration Panel" is defined in Section 11.3(b) of this
Agreement.
"Associations" means, collectively, Discover, Visa, MasterCard,
and the ATM/POS Networks.
"ATM/POS Networks" means the [AFFN, American Express, Cash Station,
Cirrus, COOP, CU24, Electron, Explore, Honor, Interlink, MAC, Maestro, Member
Access, NYCE, Plus, Pulse, STAR, The Exchange, and TransAlliance] ATM or POS
networks, and such other ATM or POS networks as may be specified by WildCard and
Client from time to time under this Agreement.
"Basic Qualifications" is defined in Section 11.3(b) of this Agreement.
"Breach Notice" is defined in Section 12.2 of this Agreement.
"Breaching Party" is defined in Section 12.2 of this Agreement.
"Cardholder" means an individual or Entity which has established a
Cardholder Account with the Issuing Bank through Client.
"Cardholder Account" means an arrangement between a Customer and the
Issuing Bank, through which the Issuing Bank provides the Customer with the
right to use one or more Transaction Cards issued through the Issuing Bank.
"Cardholder Data" means all personally identifiable information
regarding a Cardholder, the Cardholder Accounts and transactions a Cardholder
makes with a Transaction Card.
"Charges" are defined in Section 4.1 of this Agreement.
"Client Content" shall mean all text, pictures, sound, graphics, video
and other data supplied by Client to WildCard pursuant to this Agreement,
whether such materials are owned by Client or licensed for use by Client, as
such materials may be modified from time to time for use on the Web Site.
"Client Data" shall mean any data or information of Client that is
provided to or obtained by WildCard in the perfonnance of its obligations under
this Agreement, including data and information with respect to the businesses,
customers, operations, facilities, products, consumer markets, assets, and
finances of Client.
"Client Marks" shall mean the trademarks, service marks, trade names,
logos and other commercial and product designations of Client identified by
Client for use on the Web Site.
"Client Obligations" means those obligations of Client as specified in
Section 3 of this Agreement.
"Confidential Information" is defined in Section 6.1 of this Agreement.
"Customer" means an individual or Entity that has a business
relationship with Client"
"Discover" means NOVUS Services, Inc.
"Dispute" is defined in Section 11.1 of this Agreement.
"Disputing Party" is defined in Section 11.3 (a) of this Agreement.
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"Domain Name" shall mean the alphanumeric name that is selected by
Client for a particular computer system that is used by the Internet to identify
that system, as designated in the Program Schedules.
"Entity" means a corporation, partnership, sole proprietorship, joint
venture, or other form of organization.
"Excusable Delay" is defined in Section 10.1 of this Agreement.
"Funding Payment" shall mean the payment instruction and amount for
the initial load or Reload of a Transaction Card. The total of all Funding
Payments for a given banking day or other mutually agreed upon settlement pen16d
shall be debited by WildCard from a demand deposit account specified by Client
and credited to the Proceeds Account.
"Governmental Requirements" means collectively all statutes, codes,
ordinances, laws, regulations, rules, orders and decrees of all governmental
authorities (including without limitation federal, state and local governments,
governmental agencies and quasi-governmental agencies) having jurisdiction over
a Party.
"Intellectual Property Rights" shall mean any and all (by whatever
name or term known or designated) tangible and intangible and now known or
hereafter existing (a) rights associated with works of authorship throughout the
universe, including but not limited to copyrights, moral rights, and mask-works,
(b) trademark and trade name rights and similar rights, (c) trade secret rights,
(d) patents, designs, algorithms and other industrial property rights, (e) all
other intellectual and industrial property rights (of every kind and nature
throughout the universe and however designated) (including logos, "rental"
rights and rights to remuneration), whether arising by operation of law,
contract, license, or otherwise, and (f) all registrations, initial
applications, renewals, extensions, continuations, divisions or reissues hereof
now or hereafter in force (including any rights in any of the foregoing).
"Issuing Bank" means a financial institution which is a card issuing
member of Discover, MasterCard, Visa or an ATM/POS Network, which has agreed to
sponsor the Transaction Card Program with the Association and to issue the
Transaction Cards.
"MasterCard" means MasterCard International Incorporated or its
successors or assigns.
"Non-Breaching Party" is defined in Section 12.2 of this Agreement.
"Operating Rules" means, collectively, the regulations and procedures
issued by Discover, MasterCard, Visa, the ATM/POS Networks, and the Issuing
Bank, as amended from time to time.
"Original Term" is defined in the Program Schedule for each
Transaction Card Program.
"Proceeds Account" shall mean a commercial demand deposit account
maintained by WildCard into which disbursement is originated by the WildCard
from Client's commercial demand deposit account, from time to time for remittal
of Transaction Card Funding Payments
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pending disbursement by WILDCARD TO THE SETTLEMENT Account, to settle
transactions with the Associations.
"Processing Year" is defined in each Program Schedule.
"Program Schedule" is defined in Section 2.1 of this Agreement.
"Reload" means any addition of value to a Transaction Card, after the
initial load, accomplished by WildCard credit to the associated Transaction Card
account, with a corresponding increase in the Transaction Card balance.
"Renewal Term" is defined in each Program Schedule.
"Scheduled Start-Up Date" is defined in Section 2.3(a) of this
Agreement.
"Settlement Account" shall mean that bank account established by
WildCard for settlement of Transaction Card transactions with the Associations.
"Service Change" is defined in Section 2.2 of this Agreement.
"Services" means the services to be performed by WildCard on behalf of
Client, as outlined on the Program Schedules which are entered into by the
Parties from time to time during the term of this Agreement, as the same may be
amended from time to time.
"Start-Up" means the preparation of the WildCard System for the set-up
of Client Data relating to new Transaction Card Programs offered by Client.
"Taxes" is defined in Section 4.3 of this Agreement.
"Transaction Card" means a valid and unexpired host based stored value
card issued through the Issuing Bank, and bearing the symbols of one or more of
Discover, MasterCard, Visa or the ATM/POS Networks.
"Transaction Card Program" means a program initiated by Client pursuant
to which the Issuing Bank will provide Transaction Cards to the Cardholders.
"Visa" means, individually or collectively, as appropriate, Visa U.S.A.
Inc. or Visa International or either of their successors or assigns.
"Web Site" shall mean the electronic, publicly viewable computer screen
depictions of the WildCard System, the WildCard Content, the Client Content and
the Client Marks.
"Web Site Specifications" shall mean the technical, aesthetic and
functional requirements for the Web Site, as set forth in the applicable Program
Schedule.
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"WildCard Content" shall mean all text, pictures, sound, graphics,
video and other data, exclusive of the Client Content, provided by WildCard for
use on the Web Site, whether such materials are owned by WildCard or licensed
for use by WildCard, as such materials may be .modified from time to time.
"WildCard System" means the computer equipment, computer software and
related equipment and documentation used at any time and from time to time by
WildCard to provide the services contemplated by this Agreement.
1.2 OTHER TERMS. The terms defined in Section 1.1 include the plural as
well as the singular. Unless otherwise expressly stated, the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or other
subdivision. The words "include" and "including" shall not be construed as terms
of limitation. The word "or" shall mean "and/or" unless the context requires
otherwise. The words "day," "month," and "year" mean, respectively, calendar
day, calendar month and calendar year. Other terms used in this Agreement are
defined in the context in which they are used and shall have the meanings there
indicated.
2. PROVISION OF SERVICES
2.1 SCOPE OF SERVICES. In support of Client's Transaction Card
Programs, Client desires for WildCard to provide certain processing and related
services to Client, and WildCard desires to provide such services to Client.
This Agreement sets forth the general terms and conditions applicable to
Transaction Card processing services which may be provided by WildCard to Client
from time to time during the terns. During the term and subject to the terms and
conditions contained herein, WildCard agrees to provide Client the Services, as
described in program schedules which are executed and delivered by the Parties
from time to time during the term of this Agreement (the "Program Schedules").
The general format of a Program Schedule is set forth in Schedule A to this
Agreement. As Client proposes to offer additional Transaction Card Programs,
Client and WildCard shall use good faith efforts to enter into a Program
Schedule which will describe the Services that WildCard will provide to Client
in support of such Transaction Card Program. Detailed procedures and practices
to be followed while performing the Services shall be as set forth in a Program
Schedule. The Program Schedule shall further specify the term during which the
Services shall be provided by WildCard, the commencement date for the
performance of the Services, the fees payable for such Services, specifications
applicable to the Transaction Card Program, and other applicable terms. WildCard
shall not be responsible for rendering of Services under new Transaction Card
Programs until a Program Schedule for such Transaction Card Program has been
executed by the authorized representatives of the Parties.
2.2 CHANGE IN SCOPE OF SERVICES. Client or WildCard may deem it
necessary or appropriate from time to time to add other services or increase,
reduce, or change the Services under one or more Transaction Card Programs (a
"Service Change"). Either Party may make a proposal for a Service Change,
whereupon the Parties shall mutually evaluate feasibility, manner and timing for
implementation, impact on pricing, impact on performance requirements and all
other relevant matters. A Service Change shall not be implemented unless and
until the Service
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Change is approved by both Parties. If the Service Change is approved by the
Parties, the Service Change shall be implemented by WildCard as expeditiously as
possible. An approved Service Change shall be set forth in a written amendment
to the applicable Program Schedule, which amendment shall be signed by
authorized representatives of the Parties.
2.3 START-UP.
(a) WildCard shall provide, subject to any applicable approvals of
the Associations and the Issuing Bank (as required), for completion of the
Start-Up on the date specified in the applicable Program Schedule, or at such
other date as may a date to be mutually agreed upon by WildCard and Client (the
"Scheduled Start-Up Date"). To the extent that WildCard and Client mutually
agree, the Scheduled Start-Up Date may be modified from time to time prior to
Start-Up.
(b) Client will (i) use all reasonable resources, including the
assignment of adequate personnel to assure timely performance of those functions
required of Client under the Start-Up, and (ii) cooperate with WildCard so as to
enable Start-Up to be completed on or before the Scheduled Start-Up Date.
(c) WildCard will use all reasonable resources, including the
assignment of adequate personnel to assure timely performance of those functions
required of WildCard under the Start-Up so as to enable Start-Up to be completed
on or by the Scheduled Start-Up Date.
(d) With respect to each Program Schedule, following the
successful completion of the Start-Up, Client agrees to pay the Start-Up Fee as
provided for in the Program Schedule. In addition, each Party shall be
responsible for and pay all costs and expenses incurred by it in connection with
the Start-Up.
2.4 DOMAIN NAME. WildCard shall cooperate with Client in securing the
Domain Name; provided that Client first engages in an appropriate trademark
search in order to establish that the Domain Name proposed by Client shall not
infringe upon the trademark, service xxxx, name or logo of any third party.
Client shall reimburse WildCard for all fees and charges actually incurred by
WildCard in providing such service and registering the Domain Name with the
appropriate registration authority. Client shall own all right, title and
interest in and to the Domain Name and all Intellectual Property Rights related
thereto.
2.5 SERVICE STANDARDS.
(a) WildCard represents and warrants that the Services shall be
rendered with promptness and diligence and shall be executed in a workmanlike
manner in accordance with the service standards set forth in Schedule D.
(b) If WildCard fails to provide Services in accordance with the
service standards and this Agreement, WildCard shall (i) promptly investigate
and report on the causes of the problem; (ii) provide a root cause analysis of
such failure as soon as practicable, after such failure or Client's request
(iii) initiate remedial action to correct the problem and to begin
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meeting the service standards as soon as practicable; and (iv) advise Client, as
and to the extent requested by Client, of the status of remedial efforts being
undertaken.with respect to such problem and, within five (5) business days,
provide Client reasonable evidence that the causes of such problem have been or
will be corrected on a permanent basis.
(c) WildCard shall implement measurement and monitoring tools and
metrics as well as standard reporting procedures to measure and report
WildCard's performance of the Services against the applicable service standards,
and provide monthly reports with respect to attaining the service standards.
WildCard also shall provide Client with information and access to the
measurement and monitoring tools and procedures utilized by WildCard for
purposes of audit verification.
2.6 REPORTS. WildCard shall provide to Client the reports described in
a Program Schedule at the frequencies provided therein. In addition, from time
to time, Client may identify additional reports to be generated by WildCard and
delivered to Client on an ad hoc or periodic basis. To the extent WildCard must
dedicate significant labor or resources to the preparation of additional reports
that can only be manually generated or to the implementation of system changes
to permit such reports to be electronically generated, Client shall reimburse
WildCard at WildCard's standard time and material rates for costs incurred by
WildCard in connection therewith.
2.7 FRAUD MANAGEMENT/FRAUD DETECTION SERVICES. For each Program
Schedule entered into by Client, Client shall have the option of electing to
receive the Fraud Management/Fraud Detection Services, which services shall
consist of those services described in each Program Schedule and Attachment A
thereto. The Charges for the Fraud Management/Fraud Detection Services are set
forth in Schedule B.
3. CLIENT OBLIGATIONS
3.1 COOPERATION. Client will cooperate with WildCard in the performance
of Client's activities contemplated by this Agreement by, among other things,
making available, as reasonably requested by WildCard, such volume and other
forecasts, updated information, management decisions and approvals so that
WildCard may fulfill its obligations under this Agreement in a timely and
efficient manner.
3.2 EXCLUSIVITY. Client shall ensure that WildCard shall be the sole
provider of the Services to Client. Client will not discontinue or reduce all or
any part of the Services for any reason, including, without limitation, the
provision of any of such Services itself or to obtaining any of such Services
from a third party.
3.3 CLIENT CONTENT. Client will deliver to WildCard, in the format(s)
specified by WildCard, all Client Content that Client intends for WildCard to
incorporate into the Web Site. Client shall bear all costs associated with the
telecommunications and computer hardware, software and services necessary to
generate the Client Content and deliver it to WildCard.
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3.4 SHADOW SITE; ACCEPTANCE. WildCard shall make available the final
version of the Web Site on a password protected server for Client's review and
acceptance. Client shall have fifteen (15) days to review and evaluate the Web
Site (the "Acceptance Period") to ensure that it meets the Web Site
Specifications. In the event that Client rejects the Web Site during the
Acceptance Period, Client shall promptly notify WildCard in writing of such
rejection, setting forth in detail the basis for such rejection, and WildCard
shall use commercially reasonable efforts to correct any deficiencies or
nonconformities and resubmit the rejected items within thirty (30) days of
receipt of notice of rejection for retesting by Client.
3.5 CONTENT CONTROL. Client will be solely responsible for creating,
managing, reviewing and otherwise controlling the Client Content on the Web
Site. Client acknowledges that, by only providing Client with the ability to
publish and distribute the Client Content, WildCard is acting as a passive
conduit for the distribution and publishing of the Client Content. WildCard has
no obligation to Client, and undertakes no responsibility, to review the Client
Content to determine whether any the Client Content may incur liability to third
parties. Notwithstanding anything to the contrary herein, if WildCard reasonably
believes that any Client Content may create liability for WildCard, Client
agrees that WildCard may, upon prior notice to Client, take any actions
reasonably necessary with respect to the Web Site that WildCard believes are
prudent or necessary to minimize or eliminate WildCard's potential liability.
3.6 CLIENT LICENSE. Client hereby grants to WildCard a non-exclusive,
royalty free, worldwide license to use the Client Content solely in connection
with performing the Services described herein and otherwise carrying out its
obligations hereunder, including without limitation, the right to distribute,
reproduce, create derivative works of, publicly perform, publicly display and
digitally perform the Client Content in and on the Web Site.
3.7 CLIENT MARKS. Subject to the terms and conditions of this
Agreement, Client hereby grants to WildCard a limited, non-exclusive,
non-sublicenseable, royalty-free, worldwide license to use the Client Marks on
the Web Site and in other materials which are prepared by WildCard in support of
Client's Transaction Card Programs. Client may terminate WildCard's right to use
the Client Marks, in whole or in part, if the usage of such Client Marks does
not comply with Client's then-current standards for use of such Client Marks;
provided, Client has provided WildCard with written notice of such
non-compliance and WildCard has failed to correct such non-compliance within
thirty (30) days following receipt of such notice. Except as set forth above,
neither Party may use the other Party's trademarks, service marks, trade names,
logos, or other commercial or product designations for any purpose whatsoever
without the prior written consent of the Party owning such marks.
3.8 ESTABLISHMENT OF ACCOUNTS. WildCard will establish and maintain the
Proceeds Account at the Issuing Bank. Client agrees to establish and maintain,
in a commercial demand deposit account at a financial institution designated by
Client, sufficient funds to cover the aggregate amount of all Funding Payments
for Transaction Cards issued through Client. On each banking business day,
WildCard will initiate an ACH transaction debiting from the commercial demand
deposit account specified by Client an amount equal to the aggregate Funding
Payments on all Transaction Cards occurring since the previous banking business
day for credit to the Proceeds Account. Client agrees to execute and deliver any
documents
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reasonably requested by WildCard for the purpose of obtaining the privilege of
making debits and credits and information inquiry to, from, and concerning
Client's specified commercial demand deposit account.
3.9 APPOINTMENT OF AGENT. Client hereby appoints WildCard as its agent
and authorizes WildCard to make any payment to Client or to collect any amount
due and owing by Client from time to time pursuant to this Agreement by
initiating and transmitting automatic credit and debit entries to the commercial
demand deposit account specified by Client and the Proceeds Account. This
authority shall remain in full force and effect until WildCard has received
written notification from Client of its termination of this Agreement in such
time and in such a manner to afford WildCard a reasonable opportunity to act
upon such notice. In the event of termination of this Agreement, such revocation
of authority shall not be effective until Client has paid all amounts due under
this Agreement.
3.10 FAILURE TO MAINTAIN SUFFICIENT FUNDS. Provided WildCard has given
Client prior notice of a deficiency by noon Eastern time, if WildCard has not
received any Funding Payment from Client by 3:00 p.m. Eastern time, on the date
such Funding Payment was due, WildCard will have the right to refuse to activate
new Transaction Cards or to provide Reloads on existing Transaction Cards in an
amount equal to the shortfall, without incurring any liability to Client, until
such time as the Proceeds Account is properly funded. In addition to the
foregoing, WildCard may take such actions as deemed reasonable to protect
WildCard from any loss arising from Client's inability to maintain sufficient
funds to properly fund the Proceeds Account.
3.11 RESPONSIBILITY FOR GOOD FUNDS. Client shall be responsible for the
collection of "good funds" from Cardholders in connection with all Funding
Payments for Transaction Cards. By way of example, and not in limitation of the
foregoing, Client shall be responsible for (a) any chargeback initiated through
any card association where the Funding Payment involved the use of a credit
card; (b) any return entries or adjustment entries initiated through any funds
transfer systems where the Funding Payment involved an electronic funds
transfer; and (c) any dishonored items where the Funding Payment involved the
use of a check or draft.
3.12 COLLECTION DISCLOSURE. In the event of transactions exceeding the
limit applicable to a Cardholder's Transaction Card, caused by some act other
than a failure of WildCard's System, Client shall be liable for any transaction
responsible for such overdraft or negative balance. As a service offering,
WildCard may be employed to use reasonable commercial efforts to recover the
funds, utilizing chargeback procedures as authorized by the Associations, if
appropriate and necessary. WildCard will provide the Associations with
instructions that there will be no stand-in authorization for the Transaction
Cards. Client acknowledges that under the provisions of the Operating Rules,
certain types of transactions, including but not limited to certain sales in
foreign countries, will be permitted without specific authorization from the
Associations or by WildCard. Client acknowledges liability for such transactions
by Cardholders, subject to the remaining provisions of this Agreement.
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3.13 OTHER CLIENT RESPONSIBILITIES. Client shall perform the additional
obligations identified in Program Schedules which are entered into by the
Parties pursuant to this Agreement.
4. PAYMENT FOR SERVICES
4.1. FEES AND EXPENSES. Client shall pay WildCard the fees and expenses
described in a Program Schedule (the "Charges") for the Services. Unless
otherwise provided in a Program Schedule, the Charges applicable to the
performance of Services under a Program Schedule shall be as agreed upon between
the Parties.
4.2 PAYMENT. To facilitate the payment of Charges and any other fee,
tax, interest payment or amount due or payable to WildCard under this Agreement,
Client will provide WildCard with access to a bank account of Client's funds not
requiring signature and will notify WildCard of the demand deposit account
number and transit routing number for the account. WildCard may, on a monthly
basis, draw upon the bank account to pay Charges, fees, taxes, interest payments
or any other amount due or payable to WildCard under the terms of this Agreement
for Services performed during the preceding month. The detailed records of the
amounts drawn on the account of Client will be provided by WildCard to Client on
a monthly basis prior to each such monthly draft. WildCard shall be under no
obligation to effect the StartUp until the account has been established as
provided herein. If any Charges are not paid when due, a late charge of 1 %% per
month or the highest late charge allowed by governing law, whichever is less,
shall apply to such unpaid amounts from the due date until paid in full.
4.3 TAXES. The Charges do not include any taxes, duties or other
governmental charges (collectively "Taxes"), such as but not limited to sales,
use, excise, and value added taxes. Client shall pay all Taxes levied or imposed
by any governmental authority in connection with the Services, but excluding
taxes which are imposed on WildCard's net income.
4.4 GOOD FAITH DISPUTE. If Client in good faith disputes all or any
portion of the Charges, Client shall notify WildCard as soon as possible (and in
any event no later than the due date of the payment) of the specific amount
disputed and shall provide reasonable detail as to the basis for the dispute.
The Parties shall then attempt to resolve the disputed portion of such Charges
as soon as possible in accordance with the dispute resolution procedures in
Section 11.
5. COVENANTS OF PARTIES
5.1 COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS AND OPERATING RULES.
(a) WildCard shall comply in all material respects with all
Governmental Requirements and the Operating Rules which are applicable to
WildCard's provision of the Services and WildCard's other responsibilities under
this Agreement, including without limitation securing any licenses, permits,
registrations or other authorizations from such governmental authorities as
WildCard may need in order to provide the Services and carry out WildCard's
other responsibilities under this Agreement. Client shall comply in all material
respects with all Governmental Requirements and the Operating Rules which are
applicable to
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Client's business and Client's other responsibilities under this Agreement,
including without limitation securing any licenses, permits, registrations or
other authorizations from such governmental authorities as Client may need in
order to carry out the Client Obligations under this Agreement.
(b) Client acknowledges and agrees that it is solely responsible
for monitoring legal developments applicable to the operation of its business
and Transaction Card operations and interpreting applicable Governmental
Requirements, determining the requirements for compliance with all applicable
Governmental Requirements, and maintaining an ongoing compliance program. Client
acknowledges that WildCard provides transaction card processing services to
financial institutions and other Entities chartered and regulated by various
state and federal agencies and non-financial institutions subject to different
regulatory oversight such that WildCard cannot reasonably be expected to monitor
or interpret the Governmental Requirements applicable to its diverse customer
base, or provide compliance services to customers with respect to such
Governmental Requirements. Consequently, Client agrees that WildCard has no
responsibility to monitor or interpret Governmental Requirements applicable to
Client's business, or to monitor or review the terms and conditions of Client's
Transaction Card programs or Client's selection of system options and
programming, or to assure that Client's selection of any system option or
programming (either alone or acting in conjunction with other system options and
programming selected by Client) is consistent with Governmental Requirements
applicable to Client, or the terms and conditions of Client's Transaction Card
agreements with, or disclosure to, the Cardholders.
(c) WildCard shall be entitled to rely upon and use, without
verification, any and all information, data and instructions any time submitted
to WildCard by Client having to do with the Cardholder Accounts, and WildCard
shall have no responsibility or liability whatsoever for (i) the accuracy or
inaccuracy thereof, (ii) the wording or text authored or submitted by Client to
WildCard, for materials to be prepared or for other purposes, (iii) the wording
or text appearing on any forms, Transaction Cards or other materials furnished
by Client to WildCard, or (iv) any non-compliance of such information, data,
instruction, wording or text with applicable Governmental Requirements.
5.2 NON-SOLICITATION. During the term of this Agreement and for twelve
(12) months thereafter WildCard and Client shall not directly or indirectly
solicit for employment any person employed then or within the preceding twelve
(12) months by the other Party, without the other Party's consent in writing.
The foregoing prohibition does not include general public solicitations for
employment.
6. CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. Each of WildCard and Client acknowledges
that the other possesses and will continue to possess information that has been
developed or received by it, has commercial value in its business and is not in
the public domain. For purposes of this Agreement, "Confidential Information"
shall mean: (a) all information of a Party marked "confidential," "restricted,"
"proprietary" or with a similar designation; (b) in the case of Client, in
addition to the items specified in (a) above, Client Data and business
information regarding
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business planning and operations of Client; and (c) in the case of WildCard, in
addition to the items specified in (a) above, trade secrets, confidential
knowledge, know-how, technical information, data or other proprietary
information relating to the WildCard System (including, without limitation, all
source code, object code, software programs, computer processing systems and
techniques employed or used by WildCard or its Affiliates and any related items
such as specifications, layouts, flow charts, manuals, instruction books and
programmer, technical and user documentation, and any and all upgrades,
enhancements, improvements or modifications to the foregoing); business
information regarding business planning and operations of WildCard and its
Affiliates; and all information regarding WildCard's provision of Services
hereunder.
6.2 OBLIGATIONS. Each Party will use at least the same degree of care,
but not less than reasonable care, to prevent disclosing to other persons the
Confidential Information of the other Party as it employs to avoid unauthorized
disclosure, publication or dissemination of its own information of a similar
nature; provided, however, that each Party may disclose such information to its
employees, agents, subcontractors and vendors who have a need to know such
information and who have been advised by the disclosing Party of the obligation
to preserve such information's confidentiality. The receiving Party shall be
responsible for any breach by any such employee, agent, subcontractor or vendor
of any such confidentiality obligations. Upon expiration or termination of this
Agreement for any reason, each Party shall return promptly to the other Party
all Confidential Information in such Party's possession and certify in writing
to the other Party its compliance with this sentence.
6.3 EXCLUSIONS. Notwithstanding the foregoing, this Section 6 will not
apply to any particular information of a Party that the other Party can
demonstrate (a) was, at the time of disclosure to it, in the public domain; (b)
after disclosure to it, is published or otherwise becomes part of the public
domain through no fault of the receiving Party; (c) was in the possession of the
receiving Party at the time of disclosure to it without being subject to another
confidentiality agreement; (d) was received after disclosure to it from a third
party who had a lawful right to disclose such information to it; or (e) was
independently developed by the receiving Party without reference to Confidential
Information of the furnishing Party. In addition, a Party shall not be
considered to have breached its obligations under this Section 6 for disclosing
Confidential Information of the other Party (i) as required pursuant to an
arbitration proceeding conducted in accordance with Section 11, provided that
such disclosure is made in accordance with the approval or at the direction of
the Arbitration Panel, or (ii) if in the opinion of such Party's counsel, such
disclosure is required by legal process or pursuant to any applicable statute,
rule or regulation, provided that, except with respect to securities laws
disclosure obligations, such Party advises the other Party prior to making such
disclosure in order that the other Party may object to such disclosure, take
action to assure confidential handling of the Confidential Information, or take
such other appropriate action to protect the Confidential Information.
6.4 LOSS OF CONFIDENTIAL INFORMATION. In the event of any disclosure or
loss of, or inability to account for, any Confidential Information of the
furnishing Party, the receiving Party will promptly notify the furnishing Party.
6.5 NO IMPLIED RIGHTS. Nothing contained in this Section 6 shall be
construed as obligating a Party to disclose any particular Confidential
Information to the other Party, or as
12
granting to or conferring on a Party, expressly or impliedly, any rights or
license to the Confidential Information of the other Party, except as otherwise
provided herein.
6.6 PUBLICITY. Neither Party will, without the other Party's prior
written consent, use the name, service marks or trademarks of the other Party or
any of its Affiliates; provided, however, that (a) WildCard may use Client as a
reference and may indicate to others that Client is a user of the WildCard
System to provide the Services under this Agreement; and (b) Client may indicate
to others that WildCard is the provider of services covered by this Agreement.
6.7 EQUITABLE REMEDIES. Each Party acknowledges that, if it breaches
(or attempts or threatens to breach) its obligations under this Section 6, the
other Party will be irreparably harmed. Accordingly, if a court of competent
jurisdiction should find that a Party has breached (or attempted or threatened
to breach) any such obligations, such Party will not oppose the entry of an
appropriate order compelling performance by such Party and restraining it from
any further breaches (or attempted or threatened breaches).
6.8 CONFIDENTIALITY OF AGREEMENT. Both Parties agree that the terns and
conditions of this Agreement shall be treated as confidential information and
that no reference to the terns and conditions of this Agreement or to activities
pertaining thereto can be made in any form without the prior written consent of
the other party; provided, however, that the general existence of this Agreement
shall not be treated as confidential information and that either party may
disclose the terms and conditions of this Agreement: (a) as required by any
court or other governmental body; (b) as otherwise required by law including a
party's obligations under applicable securities laws; (c) to legal counsel of
the parties; (d) in confidence, to accountants, banks, ratings agencies,
proposed investors, and financing sources and their advisors; (e) in confidence,
in connection with the enforcement of this Agreement or rights under this
Agreement; or (f) in confidence, in connection with a merger or acquisition or
proposed merger or acquisition, or the like.
6.9 SECURITY OF CARDHOLDER DATA. Client and WildCard each acknowledge
and agree that this Agreement constitutes an agreement for WildCard to perform
services for Client as contemplated in Title V of the Xxxxx-Xxxxx-Xxxxxx
Financial Modernization Act (the "Act") and Regulation P issued under the Act
("Regulation P"). Without limiting the generality of the terns of this
Agreement, WildCard agrees that it shall protect the privacy of Client's
consumers and customers non-public personal information, as such terns are
defined in the Act and in Regulation P ("Consumer Information") to at least the
same extent that Client must maintain that confidentiality under the Act and
Regulation P. Without limiting the generality of the foregoing sentence,
WildCard shall not disclose any non-public personal information to any third
person except as required in the performance of Services under this Agreement,
and WildCard shall not use any non-public personal infonnation except to perform
the Services described under this Agreement. WildCard shall establish
administrative, technical and physical safeguards for Client's customer records
and information in WildCard's control or possession from time to time. Such
safeguards shall be designed for the purpose of: (a) insuring the security of
such records and information, (b) protecting against any anticipated threats or
hazards to the security or integrity of such records and information; and (c)
protecting against unauthorized access to or use of such records and information
that would result in substantial harm or inconvenience to
13
any Client customer. Such safeguards shall be established in accordance with
Section 501 of the Act and the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information adopted pursuant to Section 501 of the Act.
Any changes to the Services required to comply with any change to or revised
interpretation of the Act or Regulation P, or to implement any requirement of
any other federal or state law, rule, regulation or judicial interpretation with
respect to the privacy or security of Cardholder Data shall be handled as a
Service Change as outlined in Section 2.2 of this Agreement, shall be subject to
the provisions of Section 12.4, and may result in a change in the Charges which
are payable by Client for the Services. Client shall provide WildCard with a
copy of its privacy policy established in accordance with the Act and Regulation
P.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Client shall be the sole
and exclusive owner of all right, title and interest (including, without
limitation, all Intellectual Property Rights) in and to the Client Content.
WildCard shall be the sole and exclusive owner of all right, title and interest
(including, without limitation, all Intellectual Property Rights) in and to the
WildCard Content and the WildCard System. Client acknowledges that the WildCard
System constitutes valuable trade secrets of WildCard and constitute
Confidential Information subject to Section 6. Nothing in this Agreement shall
be deemed to grant to one Party, by implication, estoppel or otherwise, license
rights, ownership rights or any other Intellectual Property Rights in any
materials owned by the other Party or any Affiliate of the other Party.
7.2 CLIENT DATA. Client shall own all right, title and interest in and
to the Client Data. Following expiration or termination of this Agreement,
WildCard shall promptly provide to Client a copy of all Client Data. WildCard
may retain a copy of the Client Data if required to satisfy regulatory
requirements.
8. INSURANCE
Each Party shall obtain and maintain, at its own cost, the insurance
coverages which are described on Schedule C as being its respective
responsibility. These insurance coverages do not create or imply any limitation
of liability. The Party which is responsible for obtaining and maintaining
certain insurance coverages shall provide the other Party with certificates of
such insurance coverages promptly following the date that this Agreement has
been executed by both Parties. Each insurance certificate shall provide that the
insurance policy shall not be subject to termination without at least thirty
(30) days prior-written notice to the certificate holder. A Party responsible
for obtaining and maintaining property insurance coverage shall use all
reasonable efforts to ensure that the policy contains a provision or endorsement
which waives the insurance company's right of subrogation against the other
Party and its employees, agents, directors and officers in the event of any loss
or damage from events within the coverage of the insurance policy.
14
9. LIMITATION OF LIABILITY
9.1 DIRECT DAMAGES. If WildCard shall during the term be liable to
Client, any Cardholder, or any other third party as a result of any disputes,
controversies or claims of any kind or nature arising under or in connection
with this Agreement or the relationship created hereby (whether any such
breaches, disputes, controversies or claims are based upon contract, tort
(including negligence) or any other legal theory), all damages from all such
breaches, disputes, controversies or claims are limited to actual, direct and
out-of-pocket damages which are reasonably incurred by Client.
9.2 CONSEQUENTIAL DAMAGES EXCLUSION. Notwithstanding anything to the
contrary in this Agreement, WildCard shall have no liability for, nor will the
measure of damages include, under any theory of liability (whether legal or
equitable), any indirect, special, punitive or consequential damages or amounts
for business interruption, loss of income, profits or savings arising out of or
relating to their performance or non-performance under this Agreement.
9.3 LIMITATION ON DAMAGES.
(a) The cumulative amount of all such damages recoverable against
WildCard for all such breaches, disputes, controversies and claims during the
entire term, will not exceed, in the aggregate, an amount equal to the teal
amount of WildCard's Charges under this Agreement for the three (3) months
immediately preceding the Arbitration Panel's then current final determination
of the amount of damages recoverable against WildCard.
(b) Notwithstanding the foregoing provisions of this Section 9.3,
the liability limitations contained in such subsection shall not apply with
respect to: (i) proven damages caused solely and directly by WildCard's
intentional misconduct constituting a violation of applicable civil or criminal
law or other act of WildCard for which a limitation of liability provision is
unenforceable under applicable law, or (ii) proven damages arising under a
claimed breach of Section 6.
(c) Subject to the exceptions set forth in Section 9.3(b), the
limitations set forth in this Sections 9.1, 9.2 and 9.3(a) shall apply whether
or not the alleged breach or default is a breach of a fundamental condition or
term, or a fundamental breach, or if any limited warranty or limited remedy
fails of its essential purpose.
9.4 WARRANTY EXCLUSION. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS
AGREEMENT, WILDCARD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
TO CLIENT, ANY CARDHOLDER, OR TO ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR
OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES
OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF ANY
SOFTWARE, SERVICES, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.
If this Agreement includes or refers to any economic models, pro formas,
15
or projections of any kind, it is understood that WildCard makes no express or
implied warranty with respect to such economic models, pro formas, or
projections, including without limitation any warranty of feasibility,
profitability or results.
10. EXCUSABLE DELAY
10.1 EXCUSABLE DELAY DEFINED. The term "Excusable Delay" shall mean a
delay in performance or failure to perform which is due to an event beyond the
reasonable control of a Party and shall include, without limitation, (a) acts of
God, weather conditions, explosion, flood, earthquake, or fire; (b) war or
threat of war, sabotaging, riot, revolution, civil disturbance or requisition
within the continental United States; (c) acts, restrictions, regulations,
prohibitions or measures of any kind on the part of any' governmental authority;
(d) import and export regulations or embargos; or (e) strikes, lockouts, or
other industrial actions or trade disputes.
10.2 DELAY OR NON-PERFORMANCE DUE TO EXCUSABLE DELAY. Neither Party
shall be liable to the other Party or be deemed to be in breach of this
Agreement (other than Client's obligation to pay Charges owed WildCard pursuant
to this Agreement) by reason of any Excusable Delay. A Party experiencing an
Excusable Delay in its performance shall immediately notify the other Party by
telephone (to be confirmed in writing within three days after the inception of
the Excusable Delay) and shall describe in reasonable detail the circumstances
causing such Excusable Delay. The Party experiencing Excusable Delay shall be
excused from performance of such obligations so affected by the Excusable Delay
event for the period during which the Excusable Delay event continues and for
such time thereafter as is reasonably necessary to overcome the effects of such
Excusable Delay. Both Parties shall use all reasonable efforts to overcome or
work around the Excusable Delay event as soon as reasonably practicable.
11. DISPUTE RESOLUTION
11.1 GENERAL. Any dispute between the Parties arising under or in
connection with this Agreement or any breach of this Agreement (a "Dispute")
shall be resolved solely in accordance with the procedures in this Section 11.
11.2 EFFORTS TO RESOLVE BY MUTUAL AGREEMENT. Any Dispute arising from
or in connection with this Agreement or the relationship of the Parties under
this Agreement whether based on contract, tort, common law, equity, statute,
regulation, order or otherwise, shall be resolved as follows:
(a) Upon written request of either WildCard, on the one hand, or
Client, on the other hand, the Parties will appoint a designated representative
whose task it will be to meet for the purpose of endeavoring to resolve such
Dispute.
(b) The designated representatives shall meet as often as the
Parties reasonably deem necessary to discuss the problem in an effort to resolve
the Dispute without the necessity of any formal proceeding.
16
(c) Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of:
(i) the designated representatives concluding in good faith
that amicable resolution through continued negotiation
of the matter does not appear likely; or
(ii) the expiration of the thirty (30) day period immediately
following the initial request to negotiate the Dispute;
provided, however, that this Section 11.2 will not be construed to prevent a
Party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors or to seek temporary or preliminary injunctive relief pursuant
to Section 6.7.
11.3 ARBITRATION.
(a) If the Parties are unable to resolve any Dispute as
contemplated by Section 11.2, such Dispute shall be submitted to mandatory and
binding arbitration at the election of either WildCard, on the one hand, and
Client, on the other hand (the "Disputing Party") for disputes up to $100,000.
Except as otherwise provided in this Section 11.3, the arbitration shall be
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association (the >>).
(b) To initiate the arbitration, the Disputing Party shall notify
the other Party in writing (the "Arbitration Demand"), which shall (i) describe
in reasonable detail the nature of the Dispute, (ii) state the amount of the
claim, (iii) specify the requested relief and (iv) name an arbitrator who (A)
has been licensed to practice law in the U.S. for at least ten years, (B) is not
then an employee of Client or WildCard or an employee of an Affiliate of either
Client or WildCard, and (C) is experienced in representing clients in connection
with commercial agreements (the "Basic Qualifications"). Within fifteen (15)
days after the other Party's receipt of the Arbitration Demand, such other Party
shall file, and serve on the Disputing Party, a written statement (i) answering
the claims set forth in the Arbitration Demand and including any affirmative
defenses of such Party; (ii) asserting any counterclaim, which shall (A)
describe in reasonable detail the nature of the Dispute relating to the
counterclaim, (B) state the amount of the counterclaim, and (C), specify the
requested relief; and (iii) naming a second arbitrator satisfying the Basic
Qualifications. Promptly; but in any event within fifteen (15) days thereafter,
the two arbitrators so named will select a third neutral arbitrator from a list
provided by the AAA of potential arbitrators who satisfy the Basic
Qualifications and who have no past or present relationships with the Parties or
their counsel, except as otherwise disclosed in writing to and approved by the
Parties. The arbitration will be heard by a panel of the three arbitrators so
chosen (the "Arbitration Panel"), with the third arbitrator so chosen serving as
the chairperson of the Arbitration Panel. Decisions of a majority of the members
of the Arbitration Panel shall be determinative.
17
(c) The arbitration hearing shall be held in Fort Lauderdale,
Florida or at such other location as the Parties may mutually agree. The
Arbitration Panel is specifically authorized to render partial or full summary
judgment as provided for in the Federal Rules of Civil Procedure. In the event
summary judgment or partial summary judgment is granted, the nonprevailing Party
may not raise as a basis for a motion to vacate an award that the Arbitration
Panel failed or refused to consider evidence bearing on the dismissed claim(s)
or issue(s). The Federal Rules of Evidence shall apply to the arbitration
hearing. The Party bringing a particular claim or asserting an affirmative
defense will have the burden of proof with respect thereto. The arbitration
proceedings and all testimony, filings, documents and information relating to or
presented during the arbitration proceedings shall be deemed to be information
subject to the confidentiality provisions of this Agreement. The Arbitration
Panel will have no power or authority, under the Commercial Arbitration Rules of
the AAA or otherwise, to relieve the Parties from their agreement hereunder to
arbitrate or otherwise to amend or disregard any provision of this Agreement,
including, without limitation, the provisions of this Section 11.3.
(d) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Section 11.3, the arbitrator shall
be replaced by the Party who selected such arbitrator, or if such arbitrator was
selected by the two Party-appointed arbitrators, by such two Party-appointed
arbitrators selecting a new third arbitrator in accordance with Section 11.3(b).
Each such replacement arbitrator shall satisfy the Basic Qualifications. If an
arbitrator is replaced pursuant to this Section 11.3(d) after the arbitration
hearing has commenced, then a rehearing shall take place in accordance with the
provisions of this Section 11.3 and the Commercial Arbitration Rules of the AAA.
(e) At the time of granting or denying a motion for summary
judgment as provided for in (c) and within fifteen (15) days after the closing
of the arbitration hearing, the Arbitration Panel shall prepare and distribute
to the Parties a writing setting forth the Arbitration Panel's finding of facts
and conclusions of law relating to the Dispute, including the reasons for the
giving or denial of any award. The findings and conclusions and the award, if
any, shall be deemed to be information subject to the confidentiality provisions
of this Agreement.
(f) The Arbitration Panel is instructed to schedule promptly all
discovery and other procedural steps and otherwise to assume case management
initiative and control to effect an efficient and expeditious resolution of the
Dispute. The Arbitration Panel is authorized to issue monetary sanctions against
either Party if, upon a showing of good cause, such Party is unreasonably
delaying the proceeding.
(g) Any award rendered by the Arbitration Panel will be final,
conclusive and binding upon the Parties and any judgment hereon may be entered
and enforced in any court of competent jurisdiction.
(h) Each Party will bear a pro rata share of all fees, costs and
expenses of the arbitrators, and notwithstanding any law to the contrary, each
Party will bear all the fees, costs and expenses of its own attorneys, experts
and witnesses; provided, however, that in connection with any judicial
proceeding to compel arbitration pursuant to this Agreement or to confirm,
vacate or enforce any award rendered by the Arbitration Panel, the prevailing
Party in such a
18
proceeding will be entitled to recover reasonable attorneys' fees and expenses
incurred in connection with such proceeding, in addition to any other relief to
which it may be entitled.
11.4 EQUITABLE RELIEF. Nothing in Sections 11.2 or 11.3 shall be
construed to prevent any Party from seeking from a court a temporary restraining
order or other temporary or preliminary relief pending final resolution of a
Dispute pursuant to Section 11.2 or Section 11.3.
12. TERM; TERMINATION
12.1 TERM. The term of this Agreement shall commence on the Effective
Date and shall continue until this Agreement is terminated as provided below.
If, after the first anniversary of the Effective Date, no Program Schedules are
then in effect under this Agreement, a Party may terminate this Agreement,
without cause, upon sixty (60) days prior written notice to the other Party
12.2 TERMINATION FOR CAUSE. In the event of a material breach of this
Agreement by a Party (the "Breaching Party"), the other Party (the
"Non-Breaching Party") may give written notice of such material breach
specifying in reasonable detail the nature of the breach and, if the breach may
be cured, the curative action which needs to be taken by the Breaching Party
(the "Breach Notice"). If the Breaching Party fails to cure the material breach
within thirty (30) days after receipt of the Breach Notice, then the
Non-Breaching Party shall have the right to terminate this Agreement or the
applicable Program Schedule under which such breach has occurred immediately
upon notice; provided, however, that if the Breaching Party has commenced a cure
of the breach within such 30 day period after receipt and thereafter diligently
and in good faith pursues the completion of such cure, the Non-Breaching Party
shall not have the right to terminate this Agreement unless the breach is not
fully cured as of sixty (60) days after receipt of the Breach Notice. In
addition to the foregoing termination rights, WildCard shall have the right, at
its election, to terminate this Agreement and all Program Schedules immediately
by written notice, or alternatively to suspend further performance of Services
without terminating this Agreement, if (a) Client fails to pay any Charges
within ten (10) days, (b) if required by the Associations or the Issuing Bank,
or (c) if Client fails to fulfill its obligations to fund the Proceeds Account
as required herein. In particular, Client acknowledges that the Issuing Bank may
require the termination of this Agreement and any or all Program Schedules
hereunder in the following circumstances:
(a) Failure of Client to observe or perform, in any material respect,
Client's obligations under this Agreement that continues for a period of.(i)
thirty (30) days after the Issuing Bank provides WildCard written specifying the
failure in the case of a failure not involving the payment of money, or (ii) ten
(10) days after the Issuing Bank provides WildCard written notice specifying the
failure in the case of a failure to pay any amount then due under this
Agreement;
(b) In the event any financial statement, representation, warranty,
statement or certificate furnished to it by Client in connection with or arising
out of this Agreement is materially and intentionally untrue as of the date made
or delivered.
19
(c) Client (i) voluntarily commencing any proceeding or filing any
petition seeking relief under Title 11 of the United States Code or any other
Federal, state or foreign bankruptcy, insolvency, liquidation or similar law,
(ii) applying for or consenting to the appointment of a receiver, trustee,
custodian, sequestrator or similar official for such Party or for a substantial
part of its property or assets, (iii) making a general assignment for the
benefit of creditors, or (iv) taking corporate action for the purpose of
effecting any of the foregoing; or
(d) The commencement of an involuntary proceeding or the filing of an
involuntary proceeding or the filing of an involuntary petition in a court of
competent jurisdiction seeking (i) relief in respect of Client, or of a
substantial part of its property or assets under Title 11 of the United States
Code or any other Federal, state or foreign bankruptcy, insolvency, receivership
or similar law, (ii) the appointment of a receiv6r, trustee, custodian,
sequestrator or similar office for the Client or for a substantial part of its
property or assets, or (iii) the winding up or liquidation, of the Client, if
such proceeding or petition shall continue un-dismissed for sixty (60) days or
an order or decree approving or ordering any of the foregoing shall continue
unstayed and in effect for sixty (60) days.
(e) Upon any change to or enactment of any law or regulation which
would have a material adverse effect upon the Transaction Card Program.
12.3 INSOLVENCY. Except as otherwise provided by law, either Party may
terminate this Agreement by written notice to the other Party if one of the
Parties (a) commences a voluntary proceeding under any Federal or state
bankruptcy, insolvency or reorganization law, or (b) has such a proceeding filed
against it and fails to have such proceeding stayed or vacated within thirty
(30) days, or (c) upon the end of any such stay, fails to have such involuntary
proceeding vacated within ten (10) business days thereafter, or (d) admits the
material allegations of any petition in bankruptcy filed against it, or (e) is
adjudged bankrupt, or (f) makes a general assignment for the benefit of its
creditors, or if a receiver is appointed for all or a substantial portion of
such Party's assets and is not discharged within ten (10) business days after
the appointment of the receiver. Any termination of this Agreement pursuant to
this Section 12.3 shall be considered to be by reason of anticipatory breach of
contract, and such termination shall be without prejudice to any rights the
terminating Party may have by reason of such anticipatory breach.
12.4 TERMINATION FOR CERTAIN LEGAL CHANGES. If either Party reasonably
concludes that this Agreement cannot be performed without violating applicable
Governmental Requirements, or if the application of such Governmental
Requirements impose material, additional and reasonably unavoidable costs to be
incurred by WildCard, the Parties will negotiate in good faith to modify this
Agreement to the extent necessary to ensure that the Parties will be in full
compliance with all applicable Governmental Requirements. If such modifications
require material change in Services or WildCard's cost of Services, the Parties
will negotiate in good faith to make any required change in the Charges
specified in this Agreement. If the Parties cannot agree to any required
changes, either Party may, by giving written notice to the other Party,
terminate this Agreement as of a date specified in such notice. In addition, if
any governmental authority or third party initiates any action asserting that
actions by Parties under
20
this Agreement violates any Governmental Requirements, either Party may, by
giving written notice, terminate this Agreement as of a date specified in such
notice.
13. GENERAL
13.1 INDEPENDENT CONTRACTOR RELATIONSHIP. WildCard is serving as an
independent contractor to Client under this Agreement. Nothing in this Agreement
shall be deemed or construed to create the relationship of partnership or joint
venture between the Parties, it being understood that neither the method of
computing compensation nor any other provision contained in this Agreement shall
be deemed to create any relationship between the Parties other than the
relationship of independent parties contracting for services. Neither Party has,
and shall not hold itself out as having, any authority to' enter into any
contract or create any obligation or liability on behalf of, in the name of, or
binding upon the other Party.
13.2 NOTICES. Any notices to be given hereunder to any other Party,
including any notice of a change of address, shall be in writing and shall be
deemed validly given if (a) delivered personally or (b) sent by overnight or
second day express delivery service or (c) sent by registered or certified mail,
postage prepaid, return receipt requested or (d) sent by confirmed facsimile, as
follows:
If to Client:
-------------------------
-------------------------
-------------------------
Attn:
--------------------
Fax:
--------------------
If to WildCard:
WildCard Systems, Inc.
0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Fax: 000 000-0000
All such notices shall be deemed given on the date of actual receipt by the
addressee if delivered personally, on the date of deposit with the express
delivery service or the postal authorities if sent in either such manner, on the
date of the facsimile confirmation if sent in such manner, and on the date of
actual receipt by the addressee if delivered in any other manner.
13.3 SCHEDULES AND ATTACHMENTS. Immediately following the signature
page is a list of Schedules which have been attached to this Agreement before
execution and are hereby incorporated by reference. Following execution of this
Agreement, certain additional Schedules and attachments may be expressly agreed
upon by the Parties pursuant to the provisions of this
21
Agreement whereupon such Schedules or attachments shall become part of this
Agreement and incorporated by reference. References in this Agreement to a
"Schedule" means a schedule to this Agreement and all attachments thereto unless
otherwise provided.
13.4 RESOLUTION OF CONFLICT BETWEEN DOCUMENTS. In the event of any
conflict between the terms of this Agreement and any Schedule, this Agreement
shall control the Parties' rights and obligations except where this Agreement
has been expressly amended in such Schedule. In the event of any conflict
between the terms of any Schedule and an attachment to such Schedule, the
Schedule shall control the Parties' rights and obligations except where the
Schedule has been expressly amended in such attachment.
13.5 ASSIGNMENT. Each Party shall have the right to assign this
Agreement to an Affiliate of such Party as well as to any successor to a
substantial part of the business or assets of such Party; provided that any such
assignment shall not relieve the assigning Party of its obligations under this
Agreement. WildCard shall have the right to utilize the services of
subcontractors in performing the Services, provided that WildCard shall retain
responsibility under this Agreement for all subcontracted Services. The term
"Affiliate" means an entity controlling, controlled by, or under common control
with the specified Party, with control meaning (a) owning directly or indirectly
more than 50% of the outstanding voting equity interests of an entity or (b)
having the right directly or indirectly to appoint a majority of members of the
board or other body which directs the management and policies of an entity.
13.6 AMENDMENT OR WAIVER. No amendment or modification of this
Agreement shall be valid unless it is in writing and signed by both Parties. No
waiver of any provision of this Agreement shall be valid unless it is in writing
and signed by the Party who is asserted to have made the waiver; any waiver of a
breach or observance of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
13.7 HEADINGS; CAPTIONS. The headings and captions of this Agreement
are included for convenience only and shall not be considered in construction of
the provisions hereof.
13.8 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida without regard to its conflicts of laws principles. Subject to
the dispute resolution procedures in this Agreement, all legal proceedings
relating to the subject matter of this Agreement shall be maintained in the
federal courts sitting in the State of Florida (or in the state courts sitting
in the State of Florida if federal court jurisdiction is not available) and each
Party consents that jurisdiction and venue for any such legal proceedings shall
lie exclusively with such courts.
13.9 SURVIVAL. The provisions of Sections 3.9, 3.10, 3.11, 4.2, 4.3,
4.4, 5, 6, 7, 9, 11, 13.1, 13.2, 13.8 and 13.12 shall survive any expiration or
termination of this Agreement.
13.10 SEVERABILITY. If any provision of this Agreement shall be
determined by any court of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
remainder of this Agreement, which shall be construed as if such invalid or
22
unenforceable provision had never been a part of this Agreement but in a manner
so as to carry out as nearly as possible the Parties' original intent.
13.11 BINDING EFFECT. This Agreement shall be binding upon and shall
benefit the Parties and their respective successors and permitted assigns.
13.12 NO THIRD PARTY BENEFICIARIES. There are no third party
beneficiaries of this Agreement.
13.13 COUNTERPARTS. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
13.14 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties regarding the subject matter hereof and supersedes any
letters of intent, memorandums of understanding, confidentiality agreements, and
other agreements and communications, oral or written, between the Parties
regarding such subject matter.
IN WITNESS WHEREOF, the Parties hereto have caused this Services
Agreement to be duly executed and delivered by their respective officers thereto
duly authorized, all as of the day and year first above written.
WILDCARD SYSTEMS, INC. CORPORATE SPORTS INCENTIVES,
INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------- -------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxx
----------- ------------
Title: COO Title: CEO
--- ---
Date: 4/1/2003 Date: 4/1/2003
-------- --------
23
INDEX TO SCHEDULES
TO
SERVICES AGREEMENT
Schedule A Program Schedule
Schedule B Insurance Coverages
Schedule C Service Standards
PROGRAM SCHEDULE A
TO
SERVICES AGREEMENT
This Program Schedule (the "Program Schedule") is entered into this lst day of
April, 2003, by and between WILDCARD SYSTEMS, INC., a Florida corporation
("WildCard") and CORPORATE SPORTS INCENTIVES, INC., a New Hampshire Corporation
("Client"), in accordance with the terms of the Services Agreement among the
parties dated April 1, 2003 (the "Agreement").
1.0 OVERVIEW SUMMARY
The Golf Ticket, Ski Ticket and Spa Gift are prepaid cards
(collectively known as "UGT") that operates through the Discover
network and is restricted to certain golf courses, ski resorts or spas
identified by Client. The UGT will be sold at a variety of retail or
e-tail establishments as a stand-alone gift card, distributed by Client
to various entities that may distribute the Cards or packaged with
other products.
Typically, merchants that sell the UGT Card will "activate" the Card
their POS systems that have been modified to route these transactions
or messages to WildCard in some mutually agreed upon fashion. In some
instances Cards will be "activated" via the IVR in which the purchaser
may also provide certain personal data to an automated system or Live
Agent as directed by Client. Also, Client may deploy other means for
electronic activation when Cards are distributed to various entities
for their distribution.
An important aspect of this Program is that the Cardholder or other
purchaser of a Card, has acquired an "experience" and not a Card with a
monetary denomination. Cards will be designed for either a single
authorization or one-reload , subject to certain business rules and
then any remaining balance remove. Any value associated with these
Cards is not to shared with anyone other than the Client and Discover.
2.0 WI1DCARD SERVICES DESCRIPTION
2.1 WildCard will provide the ordinary and customary transaction
processing services (ex. account creation, facilitating card
fulfilment, authorization and settlement, etc.) and other
services associated with Cards as agreed to by the parties in
accordance With this Program Schedule.
2.2 Cards will only be authorized for purchases at a network of
merchants. The precise method for enabling this, either by MCC
or Merchant ID codes, will be mutually agreed upon by the
parties.
2.3 Cards will only be permitted for one or two approved
authorizations (as defined by the Client) - any additional
attempts will be declined.
2.4 The value associated with each Card will be determined by the
Client.
2.5 The dollar value associated with a Card shall only be
disclosed to the Client and never to any other party including
the Cardholder or in any fashion by WildCard.
2.6 WildCard shall provide timely detailed reporting and account
information on a prescribed basis regarding any debits or
credits WildCard makes to the Settlement Account.
2.7 WildCard shall submit Client's image graphics and the
promotional material for the program to Discover for review
and approval upon WildCard's receipt of such materials from
Client.
2.8 WildCard will provide movement of funds between WildCard and
Discover on each Bank business day for settlement in
accordance with the funding requirements established by
WildCard and Discover and agreed upon by Client.
2.9 If directed by Client, WildCard will automatically chargeback
any permissible settled but unauthorized transactions, in
accordance with Discover's operating regulations and the
parameters established by Client, in order to minimize the
opportunity for negative balances or overdraft.
3.0 WildCard will attempt to secure a Discover Issuer and Discover
approval, but makes no warranties as to Discover's willingness
nor an Issuer's willingness to approve and support the
Program.
3.0 KEY ASSUMPTIONS
This description of Services and WildCard's pricing to perform the
Services are based on the following key assumptions. Deviation from
these assumptions may require an adjustment to price, the solution
architectural description, the proposed implementation plan, the
service standards, and the description of Services.
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Program Name UGT Card
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Program Anticipated Live Date June 2003
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Initial Card Stock Order
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Card/Account Branding Novus/Discover on the back of Cards
--------------------------------------------------------------------------------
Card/Account Type - Some are Non-Reloadable, Others are
Reloadble
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Card/Virtual Account Acceptance Only Authorized as Select Merchants
--------------------------------------------------------------------------------
Card Fulfillment TBD - Oberthur will Manufacture
Cards
--------------------------------------------------------------------------------
PIN Notification Method. No PIN
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Card Account Design Physical, Custom Cards
--------------------------------------------------------------------------------
Card Accounts Issued During Year One 250,000
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Card Accounts Issued During Year Two 500,000
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Card Accounts Issued During Year Three 1,000,000
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Card Account Ordering Method Written Request to WildCard
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Value Load Frequency One or Two Times as Configured
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Value Load Source EFT from Client
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Value Load Method Pre-Determined by Client
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Card/Account Activation Method Electronically from Merchant's POS
devices or through the IVR
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Primary Customer Service Method Client with Talon
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Secondary Customer Service Method WildCard Systems
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Tertiary Customer Service Method N/A
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Single or Multiple Purse Multiple
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Custom or Generic IVR Options Custom IVR
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4.0 CLIENT OBLIGATIONS
4.1 Client shall be responsible for "good funds" associated with all Cards,
Good funds means that WildCard will honor, subject to other provision
of this Agreement, instructions to activate and/or load value to Cards.
WildCard shall have not liability should Client later discover that
funds associated with the transaction are not good (ex. Cards are
purchased using counterfeit currency, a bad check, fraudulently used
credit cards, etc.).
4.2 Client shall provide graphics, promotional material to WildCard Systems
in sufficient time to allow for review and approval by Discover prior
to Program start.
4.3 Client shall pay, without demand or setoff, the Fees.
4.4 Client shall disclose all applicable terms and conditions to its
customers. Such terms and conditions shall be subject to WildCard's and
Discover's prior written approval.
4.5 Client will be responsible to fund any overdraft or negative balances
from the Cards if WildCard has failed to win a chargeback from a
Merchant that has presented settled but unauthorized transactions or a
Cardholder dispute is not resolved to the satisfaction of the
Cardholder and an overdraft remains.
4.6 WildCard will provide Client with reports as requested in accordance
with the Fee Schedule. The reports will be available to Client on their
reporting URL provided by WildCard.
4.7 Client will be responsible for providing all funds associated with
"active Cards" associated with this program. Client will initiate a
funds transfer, equal to the difference between dollars on deposit and
the total dollar amount associated with Cards into the WildCard
settlement account each business day.
4.8 Once a transaction has been authorized and settled to a Card, WildCard
will close the account and any difference will be available to Client,
less the WildCard revenue share stipulated in the Agreement.
4.9 Client will be responsible for negative balances. If an account remains
on the negative balance report for 35 days, the account will be
adjusted to zero balance, closed and the adjusted amount will be taken
from the WildCard settlement account. Client will transfer total dollar
amount for necessary adjustments to the WildCard settlement account.
4.10 Client is responsible for any and all losses associated with fraudulent
purchase, distribution of use of Cards.
4.11 No Statements will be provided - Cards are anonymous.
4.12 Client has elected to provided live agent customer support for
Cardholders. Discover requires a minimum of 14-hours per day of
Cardholder customer support.
5.0 TERM
5.1 SCHEDULED START UP DATE. The Scheduled Start Up Date for
Services under this Program Schedule is______________________,
2003.
5.2 ORIGINAL TERM. The term of this Program Schedule shall begin
on the date the start up activities have been successfully
completed and shall extend for three (3) processing years,
unless extended or earlier terminated in accordance with this
agreement. The first processing year shall commence on the
scheduled start-up date that is to be determined and continue
through the last day of the twelve (12) month period
commencing on the expiration of the preceding processing year
("Processing Year")
5.3 RENEWAL TERM(S). This Program Schedule shall automatically
extend for additional periods of one Processing Year each (a
"Renewal Term") following the conclusion of the Original Term
and each Renewal Term, if any, thereafter, unless terminated
prior to such extension as provided in this Section. If either
party does not want this Program Schedule to-automatically
extend at the conclusion of the Original Term (or any Renewal
Term, whichever is applicable), then such party shall give the
other party written notice to that effect not less than ninety
(90) days before the expiration of the existing term (whether
the Original Term or a Renewal Term. The Charges and Revenue
Share applicable during the Renewal Term shall be those set
forth in Section 6.0 of this Program Schedule increased to
account for a price index change, described in Section 8.0 of
this Program Schedule.
6.0 CHARGES AND REVENUE SHARE
6.1 START-UP FEE. The start-up fee for this Program is to be
determined based on the outcome of the Scope Phase and
approved by the Client unless a Standard Implementation is
possible and this fee is identified in Exhibit 1.
6.2 FEES AND CHARGES. Exhibit 1 to this Program Schedule, as well
as others Sections of 6.0 contained herein, reflects the Fees
for Services that shall apply for Services provided to Client
under this Program Schedule. Any additional Fees or Charges
will be defined in separate Exhibits, Schedules, Engagement
Authorizations, Work Orders, etc. as approved and accepted by
the Client.
6.3 MINIMUM MONTHLY SERVICE FEES. Client agrees to Minimum Monthly
Service Fees as defined in Exhibit 1 to this Program Schedule
and reflected below.
Start Up - Month 6 $0
Month 7 - End of Contract $2,500 per month
6.4 LIQUIDATED DAMAGES. The Charges under this Program Schedule
were determined by mutual agreement based upon certain assumed
volumes of Services and the length of the Original Term of
this Agreement. Bank acknowledges that without the certainty
of revenue from the Minimum Monthly Services Fees provided in
Section 6.3 of this Program Schedule, WildCard would have been
unwilling to provide processing services at the prices set
forth in this Program Schedule. The Parties agree it would be
difficult or impossible to ascertain WildCard's actual damages
for a termination or other breach of the Agreement by Bank
resulting in a termination of this Program Schedule before the
end of the Original Term. The Parties further agree that an
amount equal to the sum of the present values of the payment
in each full Processing Year which remains during the Original
Term of this Program Schedule in an amount equal to the lessor
of (a) eighty percent (80%) of the Charges which were paid by
Bank to WildCard for the Services provided under this Program
Schedule during the Processing Year which immediately precedes
the Processing Year in which termination occurs, or (b) the
Minimum Monthly Services Fees (the "Liquidated Damages") is a
reasonable estimation of the actual damages which WildCard
would suffer if WildCard were to fail to receive the
processing business under this Program Schedule forlhe full
Original Term,, If the lessor amount is calculated to be less
than $25,000, Client shall pay $25,000 as Liquidated Damages
and if the lessor amount is calculated to be greater than
$150,000, Client shall pay $150,000 as Liquidated Damages but
in no event shall the payment exceed the sum of the remaining
Minimum Monthly Service Fees. In determining the present value
of the amount, an interest rate equal to the three (3) month
Treasury Xxxx Rate, as quoted in THE WALL STREET JOURNAL for
the date on which termination occurs, or if not available on
the date of termination, as soon thereafter as the next
edition of THE WALL STREET JOURNAL is published, shall be
assumed and the payments shall be assumed to be made on the
first day of each year of the Original Term of this
Program Schedule. Each Party acknowledges and agrees, after
taking into account the terms of the Agreement, this Program
Schedule, and all relevant circumstances at the date hereof,
that the Liquidated Damages payable under this Section 6.4
represents a reasonable and genuine pre-estimate of the damages
which would be suffered by WildCard in the event of early
termination of this Program Schedule and does not constitute a
penalty. Despite the foregoing, nothing in the Agreement shall
limit WildCard's right to recover from Bank (a) any amounts
advanced by WildCard on behalf of Bank in the performance of
the Services, (b) any amounts for which Bank is liable under
the Agreement, or (c) any payment under any provision for
indemnification under the Agreement.
6.5 DISCOVER OR PAYMENT NETWORK FEES. WildCard shall pass-through
and xxxx to Client any and all fees incurred by WildCard for
supporting Client's program from Discover or any other Payment
Network. Those fees as follows: 1St Year Program Fee $7,000
($4,000 per year thereafter) $0.135 per Card for Account
Number License Fees and in Quantities of 10,000 $0.055 per
Transaction for Discover/Novus Network and Data Services Fees
These fees may change from time-to-time and WildCard will
notify Client of any changes.
6.6 REVENUE SHARE WITH CLIENT. WildCard shall rebate to Client 25%
of the net disbursements to WildCard from Discover, less any
Bank Sponsorship fees if applicable. WildCard will remit this
within 15-days after receipt of the funds from Discover.
Discover in its sole discretion establishes the rate at which
disbursements, if any, are provided to WildCard.
6.7 REVENUE SHARE WITH WILDCARD. Each quarter, Client will compute
the sum of the differential and unspent balances between the
amounts loaded on Cards and the actual cost of services from
Merchants (settled transactions) for expired and used cards.
Then, Client will subtract from this amount any value
associated with re-issued cards as well as fees paid to
WildCard. This shall be defined as "net" differential, of
which WildCard shall receive 10% of this amount payable within
45-days of the end of each quarter. Client will use existing
reports and invoices from WildCard to determine these amounts,
and provide WildCard with details of how this was computed.
7.0 REIMBURSEMENTS AND ASSESSMENTS
a. If required, the communications data circuit,
including the reoccurring service charge, service
termination fees and required modem(s) (data sets) at
Client's location(s) and WildCard, terminal(s) and
any other directly associated expenses, shall be at
Client's expense. The data circuit cost will be no
greater than that associated with a point-to-point
digital data circuit(s) based on the tariffs of
WildCard's primary carrier. One time
costs related to the installation of the circuit, as
specified by such tariffs, will also be paid by
Client. The actual circuit speed and ensuing cost
will be determined by Client's communications
requirements.
b. Client shall pay all courier expenses associated with
the transportation of reports and documents from
Client to WildCard and from WildCard to Client.
c. WildCard agrees to act as an agent on behalf of
Client and Client shall reimburse WildCard for the
purchase on Client's behalf of the postage required
for materials mailed by WildCard on behalf of Client.
The amount reimbursed by. Client to WildCard for
postage while this Agreement is in effect will be the
then current first class postage rate for all
mailings mailed by WildCard on behalf of Client.
8.0 PRICING APPLICABLE TO RENEWAL TERMS. During each Renewal Term, WildCard
may increase the Charges which were in effect for the immediately
preceding Processing Year (the "Old Year") by an amount not to exceed a
percentage of the Charges which were in effect for the Old Year. The
percentage to be utilized for each such price increase shall be the
percentage change in the Consumer Price Index ("CPI") during a period
described below; provided, however, that in no event shall such
increase be greater than five percent (5%) nor less than two percent
(2%). For purposes of this paragraph, the CPI shall be the index
compiled by the United States Department of Labor's Bureau of Labor
Statistics, Consumer Price Index for All Urban Consumers (CPI-U) having
a base of 100 in 1982-84, using that portion of the index which appears
under the caption "Other Goods and Services." The percentage change in
the CPI shall be calculated, and notification given to Client ninety
(90) days in advance of the effective date of said increase, by
comparing the CPI using a twelve (12) month period ending three (3)
months prior to notification to Merchant and expressing the increase in
said CPI through the twelve (12) month period as a percentage.
IN WITNESS WHEREOF, pursuant and in accordance with the Services Agreement
between the parties, the parties have executed this Program Schedule as of APRIL
1, 2003.
CLIENT
By: /s/ Xxxxxxx X. Xxxx
-------------------
Title: CEO
---
WILDCARD SYSTEMS , INC.
By: /s/ Xxxx Xxxxxx
---------------
Title: COO
---
EXHIBIT 1
TO PROGRAM SCHEDULE A
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WILCARD SYSTEMS SERVICES AND FEES
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PRIMARY SERVICES
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BILLING CODE SERVICE ITEM FEE
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Initial Client and First Program Set-up $12,500 Scope Review and $12,500 for
Standard Implementation
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Additional Standard Program Set-Ups $7,500 per Standard Program Set-U
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Minimum Monthly Service Fees Months 1 - 6 Waived
Months 7 + $2,500 per month
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Account Creation, Thermal Printing or MONTHLY QUANTITY ORDERED
Embossing and Magnetic Stripe Encoding 10,000 - 25,000 $0.41 per card
25,001 - 50,000 $0.39 per card
50,001 - 150,000 $0.35 per card
150,001 - 500,000 $0.29 per card
500,001 - 1 Mil $0.24 per card
1 mil + $0.20 per card
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Card Activation & Record Maintenance $0.27 per activation
Electronic $0.40 per minute plus $0.27
IVR $1.00 per minute plus $0.27
Live Agent
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POS Transactions $0.063 per transaction
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Cardholder Support' $0.40 per minute
IVR Customer Support $1.00 per minute
Live Agent Customer Support
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Shipping and/or Postage Postage, mail-forwarding, shipping or
related charges will be passed-through and
billed at cost
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Plastic Cards, POS Packaging, Card As quoted based on quantities, designs,
Carriers, Envelopes, Statements, etc. etc.
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Plastic Card Run Set-U $10.00 per card run order
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"My Account" Service and Gift Card Site $17,500 Web-site configuration
Configuration and Setup $500 per month hosting fee
Web Site Hosting
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Standard Report Package $250 / month for 8 Standard Reports
Standard Report $35 for each additional Standard Report
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Monetary Account Adjustments Other $0.220 per monetary adjustment
than POS/ATM Transactions or Initial
Value Load in CardWiz(TM) or Other
Electronic Method
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Electronic Access to our Systems through A2A Fee waived
(OLTP) or Batch File Transfers (excludes
WildCard generating reports)
' As indicated in the definition for Minimum Monthly Service Fees, the Fees
paid for these Services apply toward the Minimum Monthly Service Fees.
Confidential and Proprietary Page 1 February 2003
for Corporate Sports Incentives
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WILDCARD SYSTEMS SERVICES AND FEES
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MISCELLANEOUS AND/OR OPTIONAL SERVICES AND FEES
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BILLING CODE SERVICE ITEM FEE
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CardWiz(TM)- Web-based Middleware for $5,000 set-up
Program Administration $15 per user, per month
Configuration and Setup
User Licenses
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CardWiz(TM)Technical Support 1 free call per 10 CardWiz(TM) users per
month, and then $10 per call thereafter
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Accounts on File $0.05 per card, per month - but only assessed
beginning in the 16th month and forward if
Client has not instructed WildCard to remove
an account from the System.
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Addition of Ultragraph onto Card $0.20 per side/card and $250 set-up fee
per image
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Thermal Printing or Embossing Account $0.20 for additional thermal printing of an
Number or Proxy on Other Side of Card account number or proxy
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Affixing Activation Label to Card $0.12 per activation label
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Automatable Card Package Inserts $0.07 per insert
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Manual Card Package Insert $0.20 per insert
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Rubber band bundlin (25 per) $0.95 per bundle
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Rubber band bundlin (50 per) $1.95 per bundle
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Shrink wrap bundling (25 per) $3.25 per bundle
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Shrink wrap bundling (50 per) $5.95 per bundle
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Client Dedicated Toll-Free Numbers for One dedicated Client number maintained
Customer Service at no charge, each addition number is
$250 per set-a and $30 per month
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Check Issuance to Remove Value $5.25 per check
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Lost/Stolen Card Processing $15 per card/account reported lost or
stolen
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Reissue Plastic Card with Same Account $2.50 per card/account reissued plus Full
Number Service
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Return Mail/Statement/Card Xxxxxxx $4.50 per item returned
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Chargebacks $12.50 per charge-back processed
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IVR Custom Configuration $150 per hour ($600 min)
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Talon(TM)Software License Fee for $995 per agent user, the first 2-users
Remote Agent Support licenses provided at no charge
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Talon Annual Software Maintenance $199 per user, per year in years 2 and
beyond
Confidential and Proprietary Page 2 February 2003
for Corporate Sports Incentives
WILDCARD SYSTMES SERVICES AND FEES
PREMIUM, AD-HOC REPORTS AND DATE STORAGE
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BILLING CODE SERVICE ITEM FEE (1)
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G2 Web Query SET-UP: $7,500
USER SUBSCRIPTIONS:
1-5 Users $1,662 per license
6-10 Users $1,466 per license
11+Usets $1,222 per license
ANNUAL MAINTENANCE PER USER:
1-5 Users $665 per license per year
6-10 Users $587 per license per year
11+ Users $489 per license per year
ADDITIONAL CUBES PER YEAR:
$50 per report per year
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Report Storage Option 1- Current and $300/GB per month for online storage
Prior Quarter On-Line Availability (whether zipped or not)
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Report Storage Option 2 - Current and $300/GB per monthfor online storage
Prior Quarter On-Line Availability and (whether zipped or not) - $300 per
Quarterly Creation of Storage Media DVD/CD burned and mailed
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Report Storage Option 3 - Perpetual, On- $300/GB per month online storage
Line Storage and Availability (whether zipped or not)
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Report Development - Custom $250 per hour ($500 min) and monthly
fee as quoted
Confidential and Proprietary Page 5 February 2003
for Corporate Sports Incentives
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WILDCARD SYSTMES SERVICES AND FEES
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RISK/FRAUD MANAGEMENT SERVICES
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BILLING CODE SERVICE ITEM FEE
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Client Configuration for Risk $2,500 set-up and $100 per hour for
Management Services changes after initial setup
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Fraud Services Minimum Monthly $1,250 per month
Charges
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Accounts on file for Fraud Servicing $0.055 per account, per month
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Falcon and/or e-Falcon Transaction $0.006 per transaction
Scoring
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WildCard Systems Transaction Analysis $0.004 per transaction
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Risk Wise Review $0.350 per inquiry
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Actioned Account - Fraud Services $3.50 per actioned account
Intervention
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Auto-Statused Accounts $0.150 per account statused
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Fraud Services Investigations $45 per hour
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Warning Bulletin Notification $5.00 per card
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International "Hot Card" Listing $5.00 per card
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Cardholder Profile Matching $0.10 per inquiry
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Octopus Review Included in Accounts on File Fee
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Bank Account Verification $5.00 per account verification
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Negative Balance Review with Under $2.25 per item.
Floor Limit Activity
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Auto-Email Notification $0.05 per account auto E-mailed.
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eRACER Direct Client Access A) $25,000 initial set up fee
B) $2,500 fee to add additional programs
after the first
C) $150 fee to additional users after the
initial set up
D) Annual Fee per User:
> 1 - 5 users $1,595 per user
> 6 - 10 users $1,450 per user
> 11 or more users $1,195_5 per user
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Positive File Insertion $1.50 per account
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Confidential and Proprietary Page 3 February 2003
for Corporate Sports Incentives
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WIDLCARD SYSTEMS SERVICES AND FEES
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PREMIUM, AD-HOC REPORTS AND DATA STORAGE
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM FEE (1)
------------------------------------------------------------------------------------------------------------------------------
Premium Reports Number of Accounts on File
------------------------------------------------------------------------------------------------------------------------------
Name of Premium Report and Frequency 0 to 100,001 500,001 Over
of Distribution 100,000 to to 1,000,000
500,000 1,000.000
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Cardholder Balance Detail - Daily $120 $160 $200 $250
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Cardholder Balance Summary - Daily $80 $100 $125 $150
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Expanded Daily Activity Detail - Daily $45 $60 $75 $90
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Daily Authorizations - Daily $60 $80 $100 $120
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All Other Premium Daily Reports $45 $60 $75 $90
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Any Premium Weekly Reports $40 $50 $60 $70
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Any Premium Monthly Report $30 $40 $50 $60
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(1) FEES ARE PER REPORT, PER MONTH
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G2 Impromptu Web Reports Set-Up: $7,500
User Subscriptions:
1 - 5 Users $1,466 per license
6 - 10 Users $1,320 per license
11 + Users $1,075 per license
Annual Maintenance Per User:
1 - 5 Users $587 per license per year
6 - 10 Users $528 per license per year
11 + Users $430 per license per year
Additional Cubes Per Year:
$70 per report per year
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G2 Web PowerPlay Set-Up: $7,500
User Subscriptions:
1 - 5 Users $1,760 per license
6 - 10 Users $1,662 per license
11 + Users $1,515 per license
Annual Maintenance Per User:
1 - 5 Users $704 per license per year
6 - 10 Users $665 per license per year
11 + Users $606 per license per year
Additional Cubes Per Year:
$70 per report per year
Confidential and Proprietary Page 4 February 2003
for Corporate Sports Incentives
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WILCARD SYSTEMS SERVICE DEFINITIONS
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PRIMARY SERVICES
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BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
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Initial Client and First Program Set-up The process of establishing Client information
and first standard program parameters on the
system in as defined b WildCard's system
feature set.
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Additional Standard Program Set-Up The process of
establishing each additional standard program
on the system as defined by WildCard's system
feature set.
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Minimum Monthly Service Fees o Client shall pay each
month the greater of the sum of actual fees
for any serviced marked with a superscript
number one (1) or the amount listed as the
Minimum Monthly Service Fees.
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Account Creation, Thermal Printing or Includes WildCard generating an account number
Embossing and Magnetic Stripe Encoding approved by a payment network and facilitating
the thermal printing or embossing of the
account number on the Card as well as encoding
the magnetic-stripe.
Does not include the cost of plastic cards,
card carriers, envelopes, postage/shipping
charges, etc. which will be billed to Client
in accordance with the Agreement.
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Card Activation & Record Maintenance Includes changing the status of a card from
Electronic "ready to activate" to "active" via an
electronic method supported by WildCard.
IVR Includes changing the status of a card from
"ready to activate" to "active" via the
WildCard IVR.
Live Agent Includes changing the status of a card
from "ready to activate" to "active" via a
live agent.
Confidential and Proprietary Page 6 February 2003
for Corporate Sports Incentives
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WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
PRIMARY SERVICES
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
POS Transactions Each POS transaction and back-end process
involving a non-PIN required event such as
authorization request, settlement, credit,
adjustment, return, refund, etc. associated
with any account that originates from a
merchant (physical or virtual) or bank and is
transmitted to WildCard for processing. Each
transaction type as described above is a
separate transaction.
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Cardholder Support
IVR Customer Support The processing of an IVR call from our
standard options of IVR services.
Live Agent Customer Support The handling of a cardholder inquiry by a Live
Agent and the handling of any email inquiries.
------------------------------------------------------------------------------------------------------------------------------
Shipping and/or Postage Postage or shipping fees to deliver any
material for any purpose as required.
------------------------------------------------------------------------------------------------------------------------------
Plastic Cards, POS Packaging, Card WildCard's coordination of the Discover, Visa,
Carriers, Envelopes, Statements, etc. MasterCard or other payment network and if
applicable the Issuing Bank approval process,
as well as the actual production of, and
staging in the fulfillment center of plastic
cards, card carriers, envelopes, activation
labels, statements, cardholder disclosures and
other items as requested by the Client.
------------------------------------------------------------------------------------------------------------------------------
Plastic Card Run Set-Up Each set-up event to facilitate the
personalization, encoding, embossing, and/or
package fulfillment of a single file transfer
of plastic cards with identical package ID's.
Specifically, this fee applies to each time a
file transfer for plastic card fulfillment is
processed with different card designs, thermal
printing, deliverable timeframes, or package
components.
Confidential and Proprietary Page 7 February 2003
for Corporate Sports Incentives
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WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
PRIMARY SERVICES
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
"My Account" Services and Gift Card Site
Configuration and Setup The selection of options or variables, and
implementation of those decisions, associated
with WildCard's standard web site that enables
the Client to offer certain cardholder service
functions through the internet with the look
and feel designated by the Client.
Web Site Hosting Includes hosting WildCard applications,
configured for the client, on our servers in a
manner mutually agreed upon by the parties.
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Standard Report Package The delivery of WildCard's standard reports to
a URL for Client access.
------------------------------------------------------------------------------------------------------------------------------
Monetary Account Adjustments Other than Each individual credit or debit to an account,
POS/ATM Transactions or Initial Value other than the actual credit or debit
Load in CardWiz(TM) or Other Electronic associated with a POS/ATM Transaction or value
Method load of a payroll disbursement. Although there
are several examples, two examples include the
assessment of a cardholder fee or courtesy
adjustment.
------------------------------------------------------------------------------------------------------------------------------
Electronic Access to our Systems through Each electronic, OLTP transaction and/or
A2A (OLTP) or Batch File Transfers application-to-application (A2A) interaction
(excludes WildCard generating reports) (as provided in our OLTP documentation), or
batch file transaction with the WildCard
system by a Client or customer using published
specifications from WildCard. The Client or
customer is responsible for any hardware,
software, data line connectivity or other
services required to support this on both the
Client or customer site(s) as well as at
WildCard.
------------------------------------------------------------------------------------------------------------------------------
Confidential and Proprietary Page 8 February 2003
for Corporate Sports Incentives
------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
MISCELLANEOUS AND/OR OPTIONAL SERVICES AND FEES
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
CardWiz(TM) - Web-based Middleware for
Program Administration
Configuration and Setup The selection of options or variables
associated with WildCard's standard web
application for program administration
enabling the Client to offer certain
Transaction Card service functions through a
Web-application developed by WildCard.
User Licenses Fee assessment (per individual User ID) for
access to CardWiz(TM) via the Internet in
order to perform the designated functions.
------------------------------------------------------------------------------------------------------------------------------
CardWiz(TM) Technical Support The provision of technical support to
CardWiz(TM) Users through the Technical
Support Hotline.
------------------------------------------------------------------------------------------------------------------------------
Accounts on File Fee charged during any month in which a
unique, primary account number (PAN) and each
secondary or additional account/card number
established on the WildCard database and will
continue until Client asks to the account to
be removed. Service includes maintaining
account information for authorization,
settlement and customer service. This fee
applies until the Cardholder Account is
purged, deleted or otherwise removed from our
system. Accounts will remain on file until
instructed to remove them by the Client in
writing.
------------------------------------------------------------------------------------------------------------------------------
Addition of Ultragraph onto Card Thermal hot stamp of an additional approved
logo or image will be added to a produced
plastic design at the time of embossing. Each
Ultragraph is limited to one color on one side
based off of a set number of offered color
foils. Each additional color or printing on
another side will count as another Ultragraph.
Confidential and Proprietary Page 9 February 2003
for Corporate Sports Incentives
------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTMES SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
MISCELLANEOUS AND/OR OPTIONAL SERVICES AND FEES
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM Description of Service
------------------------------------------------------------------------------------------------------------------------------
Thermal Printing or Embossing Account During the Account Creation and Full Service
Number or Proxy on the Other Side of Card Packaging process, in which an account number
or proxy number is thermal printed on
one-side, this services is the additional
thermal printing or embossing of an account
number or a proxy number on the other side of
a card.
------------------------------------------------------------------------------------------------------------------------------
Affixing Activation Label to Card Affixing an activation label to a plastic card
prior to packaging and mailing. Service does
not include the cost of producing the
activation label.
------------------------------------------------------------------------------------------------------------------------------
Automatable Card Package Inserts Placing items that are within the provided
automatable specification parameters into the
cardholder package with the plastic card and
card carrier beyond what is included in
Account Creation and Full Service Packaging
------------------------------------------------------------------------------------------------------------------------------
Manual Card Package Insert An insert that is not to the specified size
for automation. This insert is manually
stuffed.
------------------------------------------------------------------------------------------------------------------------------
Rubber band bundling (25 per) Bundled plastics in groups of 25 bound via
rubber band.
------------------------------------------------------------------------------------------------------------------------------
Rubber band bundling (50 per) Bundled plastics in groups of 50 bound via
rubber band
------------------------------------------------------------------------------------------------------------------------------
Shrink wrap bundling (25 per) Bundled plastics shrink wrapped in groups of
25.
------------------------------------------------------------------------------------------------------------------------------
Shrink wrap bundling (50 per) Bundled plastics shrink wrapped in groups of
50.
------------------------------------------------------------------------------------------------------------------------------
Client Dedicated Toll-Free Numbers for The set-up and monthly maintenance of unique
Customer Service toll-free numbers for a Client or Client's
program(s).
------------------------------------------------------------------------------------------------------------------------------
Check Issuance to Remove Value All transactions involving the unloading - of
value, where the disbursement of funds to the
cardholder is via a paper check issued by
WildCard on the behalf of, or as directed by
the client. A Monetary Adjustment to an
Account shall apply as well.
Confidential and Proprietary Page 10 February 2003
for Corporate Sports Incentives
-----------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
-----------------------------------------------------------------------------------------------------------------------------
MISCELLANEOUS AND/OR OPTIONAL SERVICES AND FEES
-----------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
-----------------------------------------------------------------------------------------------------------------------------
Lost/Stolen Card Processing Process which includes marking a card
lost/stolen, researching potential fraudulent
activity, identifying chargeback opportunities
and handling the order for a replacement card.
Account Creation and Full Service Packaging
will be charged for the replacement card.
-----------------------------------------------------------------------------------------------------------------------------
Reissue Plastic Card with Same Account The process of reissuing a plastic card with
Number the same account number already in use at the
request of the Client or cardholder. Account
Creation, Card Fulfillment, Activation and PIN
Selection will be charged for the replacement
card.
-----------------------------------------------------------------------------------------------------------------------------
Return Mail/Statement/Card Handling This service includes the handling of returned
mail, statements, cards or other any package
not able to be delivered to a cardholder by
WildCard.
-----------------------------------------------------------------------------------------------------------------------------
Chargebacks Each individual chargeback, including
representments, handled on a customer's behalf
by the WildCard customer service staff.
Service will be provided based on the
rules/regulations of the governing card
association and does not include any Visa,
MasterCard, Discover or other third party fees
which will be passed-through and billed at
cost.
-----------------------------------------------------------------------------------------------------------------------------
IVR Custom Configuration Hourly rate for project management, quality
assurance, and programming support for
customized IVR development.
-----------------------------------------------------------------------------------------------------------------------------
Talon(TM)Software License Fee for Remote The initial installation and licensing fee per
Agent Support User of the Talon(TM)Software. This
application provides remote access and
functionality for cardholder support functions
to customer service agents through the
Internet, a frame-relay, or other method of
connection capable of a secure connection
using TCP/IP.
-----------------------------------------------------------------------------------------------------------------------------
Talon Annual Software Maintenance A service and fee related to the periodic
maintenance, upgrades, or enhancements to the
Talon(TM) application that is charged to each
user on the anniversary of the license.
Confidential and Proprietary Page 11 February 2003
for Corporate Sports Incentives
-------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
-------------------------------------------------------------------------------------------------------------------------------
RISK/FRAUD MANAGEMENT SERVICES
-------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
-------------------------------------------------------------------------------------------------------------------------------
Client Configuration for Risk Management Process to review and establish client-
Services specific parameters for Falcon, e-Falcon and
Risk Wise, including velocity controls on
loading, usage, as well as BIN restriction and
other WildCard-specific options.
-------------------------------------------------------------------------------------------------------------------------------
Fraud Services Minimum Monthly Charges Minimum monthly fees for Fraud Services
Transactions associated with Falcon, e-Falcon
and Risk Wise services.
-------------------------------------------------------------------------------------------------------------------------------
Accounts on file for Fraud Servicing Fee charged during any month in which a
distinct primary account number (PAN), any
card account number, or individual cardholder
record is maintained on the WildCard platform
for the purpose of Fraud Services.
-------------------------------------------------------------------------------------------------------------------------------
Falcon and/or e-Falcon Transaction Scoring Includes the analysis and scoring of each
individual transaction by Falcon each time a
card is used at POS or ATM as well as for each
funding event analyzed and scored by e-Falcon.
-------------------------------------------------------------------------------------------------------------------------------
WildCard Systems Transaction Analysis Includes WildCard's assessment of each
individual transaction as defined by the
Client, based on parameter options offered by
WildCard associated with restricting a load by
BIN, determining if the funding source is
another account on the WildCard Systems
platform, evaluating the velocity of
transactions, authorizing transactions based
on min/max transaction amount settings and
other parameters offered by WildCard. The fee
is assessed for each transaction, and not for
each parameter reviewed.
-------------------------------------------------------------------------------------------------------------------------------
Risk Wise Review Includes every review of an individual
applicant, cardholder or any other individual
associated with the cardholder (ex. gift
giver), that Client establishes for Risk Wise
review. This is based on each validation
attempt for each individual person that is
submitted to Equifax for scoring.
-------------------------------------------------------------------------------------------------------------------------------
Confidential and Proprietary Page 12 February 2003
for Corporate Sports Incentives
--------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICES DEFINITIONS
--------------------------------------------------------------------------------------------------------------------------------
RISK/FRAUD MANAGEMENT SERVICES
--------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
--------------------------------------------------------------------------------------------------------------------------------
Actioned Account - Fraud Services An Actioned Account is one that requires
Intervention review and/or intervention by WildCard fraud
personnel based on the scoring profile
established by Client or other WildCard risk
management intervention criteria established
by the Client.
--------------------------------------------------------------------------------------------------------------------------------
Auto-Statused Accounts Automatic status change of an account based on
client-defined criteria in Falcon, e-Falcon,
Risk Wise or WildCard parameters including
email notification.
--------------------------------------------------------------------------------------------------------------------------------
Fraud Services Investigations Gathering data, analyzing trends, researching
information or any other action undertaken by
WildCard personnel as directed by the Client
in support of Fraud Services.
--------------------------------------------------------------------------------------------------------------------------------
Warning Bulletin Notification Each placement of customer account on the
appropriate card association warning bulletin.
Service excludes association fees, which will
be passed-through and billed to Client at
cost.
--------------------------------------------------------------------------------------------------------------------------------
International "Hot Card" Listing Each placement of customer account in the
appropriate region(s) of the international
"hot card" system. Service excludes
association fees, which will be passed-through
and billed to Client at cost.
--------------------------------------------------------------------------------------------------------------------------------
Cardholder Profile Matching Detection of multiple or excessive enrollments
by a card buyer or a card user. The matching
model creates profiles for each individual
based on funding source, first and last name
of the buyer and the cardholder, address,
city/country codes, and telephone number. The
model scores individuals meeting
client-defined criteria for excessive funding
sources, multiple card purchases by the buyer
and by the cardholder. The model utilizes
exact and partial matches to generate the
scores and takes actions based on the scoring
pattern. Actions include embossing hold and
outsort for analyst review.
Confidential and Proprietary Page 13 February 2003
for Corporate Sports Incentives
--------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
--------------------------------------------------------------------------------------------------------------------------------
RISK/FRAUD MANAGEMENT SERVICES
--------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
--------------------------------------------------------------------------------------------------------------------------------
Octopus Review The use of WildCard's Octopus product to
determine if links exist between funding cards
and known fraudulent funding cards, addresses
or phone numbers.
--------------------------------------------------------------------------------------------------------------------------------
Bank Account Verification The verification of bank account information
provided by the cardholder for the purposes of
loading and unloading funds via the ACH.
Includes contacting the bank associated with
the DDA account to verify information provided
by the cardholder to the extent the bank will
provide such verification.
--------------------------------------------------------------------------------------------------------------------------------
Negative Balance Review with Under Floor Review and assessment by WildCard analysts of
Limit Activity individual accounts with negative balances and
under the floor limit activity. Accounts will
be outsorted and reviewed based upon
parameters established by the Client. The fee
is assessed for each account that meets the
specified criteria on each day.
--------------------------------------------------------------------------------------------------------------------------------
Auto-Email Notification Generating an email notification to the
cardholder at the time an account is
auto-statused. Email will be sent to
cardholder provided email address. Client may
select either generic notification message or
provide custom notification message language.
--------------------------------------------------------------------------------------------------------------------------------
eRACER Direct Client Access Providing access to eRACER for Client
personnel using a web interface. Includes set
up of initial program, establishing user ID's
and putting in place IP address filters to
allow use only by specifically designated
personnel and workstations. Does not include
fees for individual fraud tools which are
priced separately.
--------------------------------------------------------------------------------------------------------------------------------
Positive File Insertion Entering specific card numbers in a file which
will preclude statusing the specific account
as fraud. Done at Client's written request for
cards which may appear to have fraudulent
activity but which Client determines are valid
sources for value loads.
Confidential and Proprietary Page 14 February 2003
for Corporate Sports Incentives
------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
PREMIUM, AD-HOC REPORTS, DATA STORAGE AND CUSTOM REPORT
DEVELOPMENT
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
Premium Reports Any daily, weekly, monthly or quarterly report
listed in the WildCard Reporting Package
document as a Premium Report. Premium Reports
are delivered to a secure URL for retrieval by
the client.
------------------------------------------------------------------------------------------------------------------------------
NAME OF PREMIUM REPORT AND DESCRIPTION OF REPORT
FREQUENCY OF DISTRIBUTION
------------------------------------------------------------------------------------------------------------------------------
Cardholder Balance Detail - Daily Listing of remaining open balances on all
cards at the end of each day along with the
current day's activity by card. The grand
total of all balances cross foots to the
Balance Summary report each day.
------------------------------------------------------------------------------------------------------------------------------
Cardholder Balance Summary- Daily Listing of remaining open balances on all
cards at the end of each day. The grand total
of all balances cross foots to the Balance
Summary report each day.
------------------------------------------------------------------------------------------------------------------------------
Expanded Daily Activity Detail - Daily Listing of individual transactions posted to
each cardholder account along with the source,
user ID and comments for each transaction.
------------------------------------------------------------------------------------------------------------------------------
Daily Authorizations - Daily Listing of all authorizations posted to any
cardholder account including declines.
------------------------------------------------------------------------------------------------------------------------------
Days Before Expiration - Daily Listing of cards that will expire along with
the remaining balance in 30 day increments, up
to 90 days prior to expiration.
------------------------------------------------------------------------------------------------------------------------------
Value Load Detail - Daily Separation of value loads between web site
loads, batch loads and CardWiz loads.
------------------------------------------------------------------------------------------------------------------------------
Account Creation - Daily Listing of all accounts created for a specific
day.
------------------------------------------------------------------------------------------------------------------------------
Account Activation - Daily Listing of all account activated for a
specific day.
------------------------------------------------------------------------------------------------------------------------------
ACH Rejects - Daily Listing of all transactions not posted to a
cardholder account specifically received via a
unique ACH value load file. Applies only to
specific customers and is not available for
all value load sources.
Confidential and Proprietary Page 15 February 2003
for Corporate Sports Incentives
------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
PREMIUM, AD-HOC REPORTS, DATA STORAGE AND CUSTOM REPORT
DEVELOPMENT
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
Closed Accounts W/Balance Equal to Listing of all closed accounts that have an
($10) and $1 - Daily ending balance between -$10 and $1. A subset
of the Daily Cardholder balance Summary
report.
------------------------------------------------------------------------------------------------------------------------------
Cardholder Maintenance Error - Daily Listing of all monetary and non- monetary
rejects on a particular day from a batch file.
Includes a reason for the reject.
------------------------------------------------------------------------------------------------------------------------------
Priority 1 Exception - Daily Listing of non-active accounts having activity
each day.
------------------------------------------------------------------------------------------------------------------------------
Statused Accounts with Credit Balance - Listing of non-active accounts that have a
Daily positive remaining balance.
------------------------------------------------------------------------------------------------------------------------------
Debit Balance - Daily Listing of all cards having a negative
balance. Similar to the Negative balance
report except this report contains a few
different fields.
------------------------------------------------------------------------------------------------------------------------------
Card Loads on Cash-Outs - Daily Listing of all CardWiz loads and cash out
transactions.
------------------------------------------------------------------------------------------------------------------------------
Lost/Stolen - Weekly Listing of all lost or stolen accounts that
occurred the previous week. Report runs each
Monday.
------------------------------------------------------------------------------------------------------------------------------
Suspended Accounts w/Activity - Weekly Listing of all suspended account that had any
activity for the previous week. Report runs
each Monday.
------------------------------------------------------------------------------------------------------------------------------
Non-Activated and Suspended Accounts - Listing of all accounts that are Weekly
suspended or have not been activated as of
each Monday.
------------------------------------------------------------------------------------------------------------------------------
Non-Activated and Re-Issued Accounts - Listing of re-issued accounts that have not
Weekly yet been activated as of each Monday.
------------------------------------------------------------------------------------------------------------------------------
Returned Plastics - Monthly Listing of all cards that were returned via US
Mail.
------------------------------------------------------------------------------------------------------------------------------
Lost/Stolen - Monthly Monthly version of the lost/stolen report that
is generated each week or day.
------------------------------------------------------------------------------------------------------------------------------
Authorizations - Monthly Monthly summary of the authorizations that
occurred for the month. Generated on a
calendar month basis.
------------------------------------------------------------------------------------------------------------------------------
Cardholder Portfolio Statistics - Monthly Monthly version of the Daily Portfolio
Statistics report. The only difference is in
the accounts added - the daily report shows
account added for the day while the monthly
version shows accounts added for the entire
month.
Confidential and Proprietary Page 16 February 2003
for Corporate Sports Incentives
------------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
------------------------------------------------------------------------------------------------------------------------------
PREMIUM, AD-HOC REPORTS, DATA STORAGE AND CUSTOMER REPORT
DEVELOPMENT
------------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
------------------------------------------------------------------------------------------------------------------------------
BIN/1CA - Monthly Used specifically for Internet based programs
to determine the BIN's used to purchase stored
value cards.
------------------------------------------------------------------------------------------------------------------------------
Card Designs - Monthly Breakdown of cards issued for the month b card
design.
------------------------------------------------------------------------------------------------------------------------------
Mail Status - Monthly Listing of how cards were sent to cardholders
(US Mail/Express Mail).
------------------------------------------------------------------------------------------------------------------------------
Source Code - Monthly Marketing report that shows the sources . of
various promotion codes that can be
implemented with a WildCard program.
------------------------------------------------------------------------------------------------------------------------------
G2 Impromptu Web Reports Reporting tool that permits authorized Users
to organize and present a static set of data
using variable date ranges.
------------------------------------------------------------------------------------------------------------------------------
G2 Web PowerPlay Reports generated from pre-defined data
elements that allow users to "drill- down"
from summary to detail information. Reports
access weekly data.
------------------------------------------------------------------------------------------------------------------------------
G2 Web Query On-line queries utilizing pre-defined data
elements that allow users to "drill-up" from
detail to summary information. Queries access
previous day's data.
------------------------------------------------------------------------------------------------------------------------------
Report Storage Option 1- Current and WCS will ZIP all prior months' reports and
Prior Quarter On-Line Availability maintain the data on the URL for retrieval by
the client. At the conclusion of each calendar
quarter, WCS will purge all data from the
quarter before the quarter that just ended,
thus enabling the current quarter and prior
quarter of historical access to data through
the URL at any given time. Client is solely
responsible for downloading and warehousing
data prior to being urged.
------------------------------------------------------------------------------------------------------------------------------
Report Storage Option 2 - Current and WCS will ZIP all prior months reports and
Prior Quarter On-Line Availability and maintain the data on the URL for retrieval by
Quarterly Creation of Storage Media the client At the conclusion of each calendar
quarter, WCS will extract the data from the
quarter before the quarter that just ended
from the system, place it on a DVD/CD, mail
the DVD to the Client within 3-weeks after the
quarter ends, and then purge the data.
Confidential and Proprietary Page 17 February 2003
for Corporate Sports Incentives
-----------------------------------------------------------------------------------------------------------------------------
WILDCARD SYSTEMS SERVICE DEFINITIONS
-----------------------------------------------------------------------------------------------------------------------------
PREMIUM, AD-HOC REPORTS, DATA STORAGE AND CUSTOM REPORT
DEVELOPMENT
-----------------------------------------------------------------------------------------------------------------------------
BILLING CODE SERVICE ITEM DESCRIPTION OF SERVICE
-----------------------------------------------------------------------------------------------------------------------------
Report Storage Option 3 - Perpetual, On- WCS will ZIP all prior months reports and
Line Storage and Availability maintain the data on the URL for retrieval by
the client until instructed in writing to
purge the data or take some other action as
mutually agreed.
-----------------------------------------------------------------------------------------------------------------------------
Report Development- Custom Hourly rate for project management, quality
assurance, and programming support for
customized reporting needs.
Confidential and Proprietary Page 18 February 2003
for Corporate Sports Incentives
SCHEDULE B
TO
SERVICES AGREEMENT
INSURANCE COVERAGES
1. WildCard Insurance Coverage Requirements. WildCard agrees to keep in
full force and effect and maintain at its sole cost and expense the
following policies of insurance during the term of this Agreement:
(1) Workers' Compensation and Employer's Liability
Insurance:
(i) Statutory Worker's Compensation
including occupational disease in accordance
with law.
(ii) Employer's Liability Insurance with
minimum limits of $500,000 per employee by
accident/$500,000 per employee by disease.
(2) Commercial General Liability Insurance
(including contractual liability insurance) providing coverage
for bodily injury and property damage with a combined single
limit of not less than one million dollars ($1,000,000) per
occurrence.
(3) Professional Liability/Errors and Omissions
Insurance covering acts, errors and omissions arising out of
WildCard's operations or Services in an amount not less than
three million dollars ($3,000,000) per occurrence.
(4) Employee Dishonesty and Computer Fraud Insurance
covering losses arising out of or in connection with any
fraudulent or dishonest acts committed by WildCard personnel,
acting alone or with others, in an amount not less than one
million dollars ($1,000,000) per occurrence.
2. CLIENT INSURANCE COVERAGE REQUIREMENTS. Client agrees to obtain and
maintain each of the following insurance coverages during the term of
this Agreement, at Client's sole expense:
(1) Workers' Compensation and Employer's Liability
Insurance:
(i) Statutory Worker's Compensation
including occupational disease in accordance with
law.
(ii) Employer's Liability Insurance with
minimum limits of $500,000 per employee by
accident/$500,000 per employee by disease.
(2) Commercial General Liability Insurance (including contractual
liability insurance) providing coverage for bodily injury and property damage
with a combined single limit of not less than one million dollars ($1,000,000)
per occurrence.
(3) Professional Liability/Errors and Omissions Insurance covering
acts, errors and omissions arising out of Client's operations in an amount not
less than three million dollars ($3,000,000) per occurrence.
(4) Employee Dishonesty and Computer Fraud Insurance covering losses
arising out of or in connection with any fraudulent or dishonest acts committed
by Client personnel; acting alone or with others, in an amount not less than one
million dollars ($1,000,000) per occurrence.
SCHEDULE C
TO
SERVICES AGREEMENT
SERVICE STANDARDS
The service level standards and performance guidelines described herein are
applicable to the WildCard System. The performance of other entities outside the
WildCard System (e. g., Bank, the Associations, and various Internet service
providers) will not be included in the determination of WildCard's adherence to
the Service Levels defined herein.
BELOW ARE THE MINIMUM SERVICE LEVEL STANDARDS AND PERFORMANCE GUIDELINES THAT
ARE REQUIRED FOR THE TRANSACTION CARD PROGRAM:
SYSTEM AVAILABILITY: This section defines the service level agreement for each
major system supported by WildCard and the percentage of time it will be
available to the end-user community (e.g., on-line availability or "up time")
over the course of each program month. These sets of measurements exclude
normally scheduled outages (e.g., maintenance windows) as they are defined in
ATTACHMENT A, SYSTEMS AVAILABILITY.
o AUTHORIZATIONS: WildCard will provide 99.50% authorization response
processing levels for stored value card authorization requests received
from the Associations.
o INTERNET SERVICES: WildCard will provide 99.25% system-wide availability to
Internet based applications offered to Client customers.
o ACCOUNT SERVICES: WildCard will meet the following service level standards
for the account services supported by WildCard.
o VRU: WildCard will provide 99.50% system-wide availability to the
Interactive Voice Response system (e.g., IVR).
o CALL CENTER: WildCard will provide a 24x7 call center manned 100% of
the time, with 99.9% system-wide availability to the Call Center.
o REPORTING SERVICES: WildCard will provide 99.25% system-wide
availability to all Internet based reports (e.g., on-line report
files). All report files will be transmitted within 24 hours of
Account Receivable batch cycle.
DISASTER RECOVERY/BUSINESS CONTINUITY: This section defines the service level
agreement for the disaster and business recovery services supported by WildCard.
DISASTER RECOVERY EXERCISE: On an annual basis, WildCard will ensure that the
business resumption plan for this product offering is successfully executed
within a predetermined
recovery time frame. In doing so, WildCard will exercise the plan by recovering
100% or more of the applications and support facilities deemed critical.
SYSTEM SERVICES: This section defines the service level agreement for the system
services supported by WildCard. Details for this set of measurements are defined
in ATTACHMENT B, SYSTEMS SERVICES.
1. SYSTEMS PROBLEM REPORTING: WildCard will provide a support group which will
be available 24 hours a day, 7 days a week, to take incoming calls for
assistance requests and to address system issues. The support group will
attempt to resolve issues reported on the call. If they are unable to do
so, they will contact the appropriate level of WildCard support staff to
assist in the resolution. Every attempt will be made to resolve any systems
services problems within the first call; however, depending on the nature
of the problem, resolution may not occur within the first call due to
factors outside of WildCard's control.
2. PLANNED OUTAGES: At times, there will be a need to address issues with
various systems used by Client and a planned outage outside the negotiated
maintenance window(s) will be required. When this occurs, a Client Down
Time form will be submitted. This form will contain approvals on the time,
date, and reason for the outage from the Client management as well as
WildCard management.
In the cases where a potential outage or planned outage occurs due to a
request by the Client to implement a change outside the maintenance window
or when the required WildCard testing and quality assurance process are not
followed, a Service Level Waiver will need to be submitted. Upon approval,
WildCard will be exempt from adherence to the Service Level Agreement for
this period of time.
ATTACHMENT A: SYSTEMS AVAILABILITY
1. AUTHORIZATIONS
SYSTEM: WILDCARD AUTHORIZATION SYSTEM
(SIGMA) Connections: the Associations end-point authorization
interface
(SIGMA) Hardware Platform: Intel-based processor system, fiber
channel disk arrays
(SIGMA) Response Time: 90% of transactions will be responded to
in 1 second or less, as calculated from
the time the transaction arrives at
WildCard to the time WildCard sends the
response back. 99% of transactions will
have a response time of 5 seconds or
less.
(SIGMA) Operating System: Windows 2000 SP2, SQL2000 Enterprise
Edition, cluster configuration.
(SIGMA) Service Levels: 365 days a year, 24 hours a day, with
the following exceptions:
o 15 minutes between 3:00 and 05:00 EST
Monday through Sunday
o additional normal weekly scheduled
maintenance window which occurs each
Sunday mornings between 02:00 and 06:00
EST (Although this is the scheduled
maintenance window, this maintenance is
usually completed within 35 minutes of
starting)
2. INTERNET SERVICES
SYSTEM: WFDCARD WEB SERVICES
(SIGMA) Connections: Internet-based, multiple Tl s
(SIGMA) Hardware Platform: Intel based processor systems, load
balancing switches, Cisco routers and
switches.
(SIGMA) Response Time: Response time is calculated from the
time the request reaches WildCard to the
time when WildCard sends the response.
With the exception of statement viewing,
90% of all Internet requests will be
responded to in 5 seconds or less as
calculated from the time the transaction
arrives at WildCard. Statement request
response time will vary due to the
unknown quantity of data that will need
to be transmitted
(SIGMA) Operating System: Windows 2000 SP 2 Enterprise Edition, US
5.0 MTS
(SIGMA) Service Levels: 365 days a year, 24 hours a day, with
the following exceptions:
o 15 minutes between 3:00 and 05:00 EST
Monday through Sunday
o additional optional weekly scheduled
maintenance window which occurs each
Sunday mornings between 02:00 and 06:00
EST (Although this is the scheduled
maintenance window, this maintenance is
usually completed within 35 minutes of
starting)
3. VRU - VOICE RESPONSE UNIT
SYSTEM: IVR
(SIGMA) Connections: Multiple Tls, owned and maintained by
WildCard or Client
(SIGMA) Hardware Platform: Dialogic T1 boards, Larscom CSUs
(SIGMA) Response Time: Answer ring to greeting: under 1 second;
Coordinated voice and data: under 2
seconds
(SIGMA) Operating System: NT 4.0 SP 5 Enterprise Edition
(SIGMA) Service Levels: 365 days a year, 24 hours a day, with
the following exceptions:
o 15 minutes between 3:00 and 05:00 EST
Monday through Sunday
o additional optional weekly scheduled
maintenance window which occurs Sunday
mornings between 02:00 and 06:00 EST
(Although this is the scheduled
maintenance window, this maintenance is
usually completed within 35 minutes of
starting
ATTACHMENT B: SYSTEMS SERVICES
1. INCIDENT RESOLUTION: WildCard will assign, work, and report on all
incidents based upon the business impact. Attention/updates to an incident
will be governed by the severity assigned to that incident. Incidents will
be reported to Client daily. As such, severities are defined as follows:
--------------------------------------------------------------------------------------------------------
SEVERITY DESCRIPTION RESOLUTION
--------------------------------------------------------------------------------------------------------
Severity I Requires immediate attention Acknowledgment in 60 minutes or
and resolution. Emergency; less and continued attention until
directly impacts the operation resolved.
of the business. Status updates: After initial
contact advising of connection made
with member of responsible area,
hourly until identified estimated
time can be e given.
--------------------------------------------------------------------------------------------------------
Severity 2 Legal or regulatory or Acknowledgment in 60 minutes or
immediate direct customer less and resolution or identified
impact that is clearly not an resolution in 24 hours.
isolated instance. Status updates: After initial
contact advising of connection made
with member of responsible area,
hourly until identified estimated
time can be e given.
--------------------------------------------------------------------------------------------------------
Severity 3 Impacts critical business Acknowledgment in I hour or less
functions; may have and resolution or identified
significant bottom line impact. resolution in 48 hours.
Status updates: 3 hours until
identified estimated time can be
given.
-------------------- -------------------------------------- --------------------------------------------
Severity 4 Isolated cardholder impact or Acknowledgment in 1 hour and
impedes important business resolution or identified resolution
functions. in weeks (subject to Regulation E
time frames and can be negotiated
with user).
STATUS UPDATES: Weekly until
identified estimated time can be
given.
Severity 1 & 2 can only exceed required resolution time frames with an approved
exception. Exceptions can only be authorized by specific managers and will be
noted in the appropriate tracking mechanism under a specific field for that
purpose. All exceptions must be continuously updated until resolved.
2. DATA CENTER: WildCard provides the capability to process, store and access
information for production processes, analysis, and reporting.
SERVICE LEVEL STANDARDS for the Data Center include:
>Staffing 365 days a year, 24 hours a day.
>99.25% availability of critical on-line systems
>The following are business unit requirements:
o:o Scheduling changes to nightly production batch processing must be submitted
to the scheduling department by 3:30 p.m. EST, Monday through Friday.
o:o Three (3) day notice for permanent changes to new or existing tables.
o:o Changes to schedules outside of the normal cutoff time require management
approval and are noted as exception changes.
3. NETWORKED SYSTEMS: WildCard provides all support for LAN connections,
internal voice communications, and Internet infrastructures. Client
provides all support for telecommunications lines, and Client routers
installed on the WildCard premises.
SERVICE LEVEL STANDARDS for the Networked Systems include:
>Any critical hardware replacement will have a 48-business hour
turnaround.
>Configurations for servers or complex systems will have a 24 business
hours turnaround time.
Utility servers will have a 99.25% uptime. Disk space will be
monitored to prevent shortages. Servers are maintained 7 days a
week, 24 hours a day. There will be planned downtime for
maintenance which will be broadcast ahead of time. These planned
outages will not be included in the calculation for the 99.25%
uptime.
