SERVICE AGREEMENT
DATED OCTOBER 14, 1999
BETWEEN
FIRST DATA RESOURCES INC.
AND
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
TABLE OF CONTENTS
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PAGE
ARTICLE 1 DEFINITIONS AND INTERPRETATION.....................................1
ARTICLE 2 SERVICES...........................................................1
ARTICLE 3 EXCLUSIVITY, ACQUIRED PORTFOLIOS AND MERGER OR
CHANGE OF CONTROL..................................................6
ARTICLE 4 PAYMENT FOR SERVICES...............................................8
ARTICLE 5 DISPUTE RESOLUTION AND INDEMNIFICATION............................10
ARTICLE 6 LIMITATION OF LIABILITY...........................................11
ARTICLE 7 DISCLAIMER OF WARRANTIES..........................................12
ARTICLE 8 TERM OF AGREEMENT.................................................12
ARTICLE 9 TERMINATION.......................................................12
ARTICLE 10 CONFIDENTIAL NATURE OF DATA.......................................15
ARTICLE 11 REPRESENTATIONS...................................................17
ARTICLE 12 INTERCHANGE SETTLEMENT............................................17
ARTICLE 13 MISCELLANEOUS.....................................................17
EXHIBITS
--------
EXHIBIT A SERVICES/PRICING
EXHIBIT B AFFILIATE AGREEMENT
EXHIBIT C DEFINITIONS
EXHIBIT D ARBITRATION
EXHIBIT E INDEMNIFICATION
EXHIBIT F INTERCHANGE SETTLEMENT
EXHIBIT G PERFORMANCE GUIDELINES
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SERVICE AGREEMENT
This Service Agreement dated as of October 14, 1999, is between First Data
Resources Inc. ("FDR") and Fidelity Federal Bank, a Federal Savings Bank
("Customer"). References to "Customer" throughout shall include Customer's
Transaction Card Affiliates.
RECITALS
WHEREAS, FDR currently provides to Customer and Customer currently receives
from and pays FDR for, data processing and other related services in connection
with Customer's Accounts as a bank member of Card Management Corporation ("CMC")
pursuant to a Service Agreement between CMC and FDR dated January 22, 1996, as
amended (the "CMC Agreement"); and
WHEREAS, Customer and FDR mutually desire to discontinue
receiving/providing data processing and related services for Customer's Accounts
pursuant to the CMC Agreement as of November 1, 1999, and to commence to
receive/provide such services pursuant to a direct servicing agreement between
Customer and FDR; and
WHEREAS, FDR and Customer wish to enter into such a direct servicing
agreement for the provision of data processing and related services by FDR in
connection with Customer's Accounts;
NOW THEREFORE, FDR and Customer agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONARTICLE 1 DEFINITIONS AND INTERPRETATION
----------------------------------------------------------------------
1.1 DEFINITIONS. Unless the context otherwise requires, capitalized terms
used herein shall have the meanings specified in Exhibit C.
1.2 INTERPRETATION. Each definition in this Agreement includes the singular
and the plural and the word "including" means "including but not limited to".
References to any statute or regulation means such statute or regulation as
amended at the time and includes any successor statute or regulation. The
section headings in this Agreement are solely for convenience and shall not be
considered in its interpretation. The Exhibits referred to throughout this
Agreement are attached hereto and are incorporated herein. Whenever this
Agreement confers discretion or sole discretion on a party, such discretion
shall be exercised reasonably and in good faith.
ARTICLE 2
SERVICES
--------
2.1 SERVICES. FDR shall make available to and perform for Customer those
services described in Exhibit A which are applicable to Customer's Accounts or
as specifically provided in Exhibit A (the "Services"). Exhibit A and any
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document or service referred to in Exhibit A shall be subject to periodic
revision by FDR to reflect changes (i) to the FDR System or the services
provided by FDR and offered generally to FDR customers and (ii) in the specific
Services provided to Customer.
2.2 COMMUNICATION LINKS. FDR periodically shall install, provide or cause
to be installed or provided the means for communicating data from its facilities
or equipment to the facilities or equipment of Customer, and third parties
designated by Customer, as FDR determines is desirable to perform this
Agreement. The method of transmission and the media employed will be determined
by FDR taking into consideration relevant factors such as traffic type, inbound
and outbound message sizes, traffic loading distribution, and the equipment or
devices which are or may be used.
2.3 ENHANCEMENTS. Customer may periodically request customizations,
enhancements, additions or modifications (each an "Enhancement") to the FDR
System. FDR shall evaluate all such requests and, if terms and conditions can be
agreed to (which shall include payment by Customer of FDR's development
charges), FDR shall develop and implement each such Enhancement on terms and
conditions agreed to by the parties. Timing of any Enhancement is subject to
scheduling and prioritization by FDR of FDR's available resources. FDR may
withhold its consent to an Enhancement which, in FDR's sole discretion, would
materially and adversely affect FDR's operations. Any Enhancement shall remain
solely the property of FDR and Customer shall acquire no right, claim or
interest in the FDR System.
2.4 TRANSFER.
(a) Not later than October 31, 1999, FDR shall perform a Client
Billing Redirect of the Cardholder Accounts of Customer within the FDR System
from the current system/principal bank levels related to CMC processing to
system/principal bank levels designated solely for Customer (the "Transfer").
(b) In connection with the Transfer, Customer shall pay FDR the
Transfer Fee as set forth in Exhibit A.
(c) FDR will, at Customer's expense, provide training to Customer's
personnel in connection with the Transfer.
2.5 COMPLIANCE WITH LAW.
(a) FDR and Customer acknowledge that Customer is subject to a variety
of federal, state and local laws, regulations and judicial and administrative
decisions and interpretations applicable to its Transaction Card business,
including without limitation those pertaining to equal credit opportunity, truth
in lending, fair credit billing, fair credit reporting, fair debt collection
practices and general consumer protection (the "Legal Requirements"). The
parties shall cooperate with each other in resolving issues relating to
compliance with the Legal Requirements in accordance with the provisions of this
Section 2.5.
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(b) Customer is solely responsible for (i) monitoring and interpreting
the Legal Requirements, (ii) determining the particular actions, disclosures,
formulas, calculations and procedures required for compliance with the Legal
Requirements (whether to be performed by FDR or by Customer) and (iii)
maintaining an ongoing program for compliance with the Legal Requirements. In
addition, Customer is solely responsible for reviewing and selecting the
parameter settings and programming features and options within the FDR System
that will apply to Customer's Transaction Card programs, and for determining
that its selection of such settings, features and options is consistent with the
Legal Requirements and with the terms and conditions of Customer's Accounts and
disclosures to its Cardholders. In making such determinations, Customer may rely
on the written description of such settings, features and options in the User
Manuals, customer bulletins and other system documentation provided by FDR to
Customer.
(c) Customer will notify FDR if Customer believes that pending changes
in applicable Legal Requirements will require changes in FDR's delivery of the
Services. The notice will specify in reasonable detail Customer's basis for its
position, together with the specific requirements Customer deems necessary for
it to be in compliance with the Legal Requirements. Upon such notice, FDR will
use commercially reasonable efforts to develop enhancements to the FDR System or
to the Services to accommodate the response desired by Customer, considering
whether (i) each specified Legal Requirement is generally applicable to a
significant portion of FDR's client base, (ii) the enhancement requested by
Customer is consistent with that requested by the majority of FDR's customers
subject to the same Legal Requirement, and (iii) the enhancement will require
substantial rearchitecture of the FDR System. FDR will have a reasonable time in
which to design, code, test and implement any system enhancement, considering
the FDR System, its importance or urgency relative to other requested
enhancements and other issues related to resource allocation and technical
feasibility. If FDR is unable to design, code, test and implement such an
enhancement by the effective date of a change in Legal Requirements, FDR will
use its best efforts to assist Customer in developing a temporary work-around
solution pending implementation of the enhancement. Enhancements developed and
implemented by FDR pursuant to this section will be at the shared expense of
Customer and any other customers requesting such enhancements. Work-arounds will
be at Customer's expense.
(d) FDR is solely responsible for compliance with all laws,
regulations and judicial and administrative decisions applicable to FDR as a
third party provider of data processing services. FDR will not be responsible
for any violation by Customer of a Legal Requirement to the extent such
violation occurs as a result of performance by FDR of the Services in accordance
with the instructions of Customer or written procedures provided by or approved
by Customer.
(e) Subject to the terms of Article 10, FDR and Customer shall
cooperate with each other in providing information or records in connection with
examinations, requests or proceedings of each other's regulatory authorities.
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2.6 DEPENDENCE ON PERFORMANCE BY OTHERS. The obligation of FDR to timely
perform the Services is expressly subject to the timely performance by Customer,
and third party vendors Customer engages, of their obligations and
responsibilities, but only to the extent that failure to so perform directly
affects FDR's ability to timely perform hereunder or the cost to FDR of
performing hereunder.
2.7 YEAR 2000 COMPLIANT.
(a) For purposes of this Agreement, "Year 2000 Compliant" means:
(i) date data (including the leap year date) will process without
error or interruption due solely to the change in century, in
any level of computer hardware or software FDR provides,
including, but not limited to, microcode, firmware, system and
application programs, files and databases; and
(ii) there will be no loss of any functionality of the FDR System
due solely to the change in century, with respect to the
introduction, processing or output of date records.
(b) FDR represents and warrants that:
(i) The FDR System is Year 2000 Compliant as of the date of this
Agreement; provided, however, that FDR will be in a process
of testing the FDR System in regard to Year 2000 Compliance
throughout calendar year 1999 and any temporary and
immaterial loss of functionality occurring during the
ordinary course of this testing and fixing process shall not
be considered a failure of FDR to be Year 2000 Compliant.
(ii) The FDR System will continue to be interoperable, in the same
manner as it is prior to January 1, 2000, with software and
hardware which may deliver records to, receive records from
or interact with the FDR System in the course of processing
data, provided that such other software and hardware is Year
2000 Compliant as defined herein and complies with the
interface and format standards specified by FDR.
(c) Customer agrees to cooperate fully, and to ensure that its vendors
cooperate fully, with FDR to ensure the interoperability of the FDR System with
hardware and software of the Customer and its vendors. FDR shall have the right,
at its discretion, to reject any data file which it in good faith believes will
interfere with the ability of the FDR System to be Year 2000 Compliant.
(d) Customer agrees to provide adequate resources necessary to
properly test Year 2000 Compliance after the transfer to a direct processing
relationship with FDR.
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2.8 OTHER SERVICES. In addition to the Services to be provided to Customer,
Customer agrees to rely upon FDR as its primary source for all other existing
and future processing requirements of Customer and its Affiliates with respect
to Customer credit card products unless a third party is capable of performing
or providing such services, products or resources with at least substantially
comparable quality, functionality and features compared to FDR and upon such
terms and conditions and at such prices that are, in the aggregate, materially
more favorable to Customer or its Affiliate. The terms of any arrangements under
which other services or other products are provided pursuant to this Section 2.8
are subject to the mutual agreement of the parties.
2.9 EXECUTION BY AFFILIATES. If any of Customer's Issuer Affiliates or
Customer's Merchant Affiliates elect to receive any of the Services, each such
Customer's Issuer Affiliate and Customer's Merchant Affiliate shall be required
to execute an Affiliate Agreement in substantially the form of Exhibit B hereto.
In no event shall FDR be required to perform any of the Services for any such
Customer's Issuer Affiliate or Customer's Merchant Affiliates prior to the
execution of an Affiliate Agreement by such Customer's Issuer Affiliate and
Customer's Merchant Affiliate.
2.10 PERFORMANCE GUIDELINES.
(a) FDR's Performance. During the Term of this Agreement, FDR shall at
all times maintain the necessary communication lines, computer
capacity and staff necessary to perform the Services in accordance
with the performance guidelines set forth in Exhibit G (the
"Performance Guidelines").
(b) Remedies for Failed Performance.
(i) If, during any calendar month, FDR fails six (6) or more of
the Performance Guidelines, then such failure shall be considered
a "Failed Month" for purposes of this Section 2.10(b).
(ii) If FDR has three (3) or more consecutive Failed Months,
Customer may, at its option and upon prior written notice to FDR,
initiate a cure period during which FDR shall use all reasonable
efforts to cure the failed Performance Guidelines (the "Cure
Period"), which Cure Period shall remain in effect for three (3)
calendar months from the date of such notice.
(iii) If, during the Cure Period, FDR has a Failed Month, then
Customer may, at its option, elect to terminate this Agreement
upon providing FDR written notice of such intention to terminate.
Such termination shall become effective on a date specified by
Customer, which date shall not be later than twelve (12) calendar
months after Customer's delivery to FDR of written notice of its
intention to so terminate, provided that FDR will be given a
minimum of one hundred eighty (180) days to perform the
Deconversion.
(iv) In the event FDR does not have a Failed Month during the Cure
Period, then Customer may not initiate another Cure Period unless
and until FDR has another three (3) consecutive Failed Months, as
set forth above.
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(v) Anything in this Section 2.10 to the contrary notwithstanding,
in no event shall the provisions of this Section 2.10 be effective
until a date ninety (90) days following the date of the Transfer.
2.11 (c) SOLE REMEDY. Customer hereby agrees that due to the difficulty of
determining and calculating its damages upon FDR's failure to perform in
accordance with the Performance Guidelines, the remedy of termination set forth
in Section 2.10(b)(iii) upon such FDR failure is its sole and exclusive remedy
and that Customer hereby elects to waive any and all other remedies to which
Customer may be entitled under this Agreement, at law or in equity, based upon
FDR's failure to perform in accordance with the Performance Guidelines;
provided, however, that nothing in this paragraph shall be construed to mean
Customer is waiving any remedy to which it may be entitled under this Agreement
(including but not limited to those set forth in Exhibit E of this Agreement
(Indemnification)) if the basis for its cause of action against FDR is based
upon anything other than solely upon nonperformance in accordance with the
Performance Guidelines.
2.12 INSURANCE. During the Term, FDR shall maintain such insurance coverage
as is customary in the industry.
ARTICLE 3
EXCLUSIVITY, ACQUIRED PORTFOLIOS AND MERGER OR CHANGE OF CONTROL
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3.1 SOLE AND EXCLUSIVE PROVIDER. During the Term, FDR shall be the sole and
exclusive provider to Customer of all Services and Customer shall neither
perform or provide any Services for itself nor engage any third party to perform
or provide any such Services to Customer. Notwithstanding the foregoing, the
parties hereby agree that those Cardholder Accounts of Customer related to
Customer's FAMCO real estate secured credit card portfolio shall not be bound by
the obligations set forth in this Section 3.1 until such time, if any, that such
Cardholder Accounts are converted onto the FDR System.
3.2 ACQUIRED FDR PORTFOLIOS. If Customer or any of its Affiliates
("Purchaser") Acquires any Customer Accounts for which FDR is then providing
services similar to the Services (an "FDR Portfolio"), FDR shall continue to
perform the services pursuant to the pre-existing service agreement (the
"Existing FDR Agreement") which shall remain in effect through the expiration of
its then-current term. On the expiration of the Existing FDR Agreement and
transfer of the FDR Portfolio to Customer on the FDR System, the FDR Portfolio
shall be processed in accordance with the terms of this Agreement. FDR shall not
include the volumes from the FDR Portfolio in any volume based price schedules
set forth in Exhibit A until such time as the Existing FDR Agreement expires and
there is a transfer of the FDR Portfolio to Customer on the FDR System. Such
transfer of the FDR Portfolio shall occur on a mutually agreed upon date. In
connection with such transfer, Customer shall bear the costs and expenses of
such transfer, at the then-standard hourly rates of FDR plus related material
charges.
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3.3 ACQUIRED NON-FDR PORTFOLIOS.
(a) If Purchaser Acquires any Customer Accounts that require services
substantially similar to the Services but for which FDR is not then providing
such services (a "Non-FDR Portfolio"), Customer shall use its reasonable best
efforts to convert such Non-FDR Portfolio to the FDR System within six (6)
months after the closing of the Acquisition or, if Customer is bound by the
terms of an existing agreement to obtain processing services for such portfolio
(an "Existing Non-FDR Agreement"), upon the expiration of the then-remaining
term of the Existing Non-FDR Agreement, whichever is later. If Purchaser is
bound by an Existing Non-FDR Agreement, then, unless otherwise agreed by the
parties, the Non-FDR Portfolio shall continue to be processed pursuant to such
Existing Non-FDR Agreement through its expiration date. In connection with any
such conversion, FDR shall have a reasonable period of time to perform due
diligence and propose a conversion plan. Unless the parties mutually agree
otherwise, Customer shall pay all charges for conversion of each Non-FDR
Portfolio including (A) FDR's standard conversion charges (at then-current
hourly rates plus related material charges), and (B) any charges (at
then-current hourly rates plus related materials charges) associated with any
customization of the FDR System specified in the conversion plan applicable to
each such Non-FDR Portfolio. Any such customization shall remain solely the
property of FDR, and Customer shall acquire no right, claim, or interest in the
FDR System or any customization thereof during or after the Term.
(b) If Purchaser and FDR agree that the remaining term of an Existing
Non-FDR Agreement will not provide adequate time to prepare for an orderly
conversion to the FDR System, Purchaser may extend the term of such Existing
Non-FDR Agreement after it Acquires the Non-FDR Portfolio; provided, however,
that no such extension may cause the term of such Existing Non-FDR Agreement to
extend to a date which is more than six (6) months after Customer's acquisition
of the Non-FDR Portfolio. In addition, Customer shall deliver any written notice
which is required to prevent an automatic extension or renewal of such Existing
Non-FDR Agreement.
(c) Customer shall notify FDR, in writing, within thirty (30) days
after the execution of any binding agreement to Acquire a Non-FDR Portfolio if
Customer or any of its Affiliates intends to obtain processing services pursuant
to an Existing Non-FDR Agreement and shall use its best efforts to provide FDR
with a copy of the provisions of such Existing Non-FDR Agreement dealing with
the term, renewal and termination thereof upon the execution by FDR of any
appropriate confidentiality agreement that may be required, unless prohibited by
the terms of such Existing Non-FDR Agreement.
3.4 DISPOSITION OF PORTFOLIOS. Except as provided in Sections 3.6 and 13.1
of this Agreement, upon the sale or other disposition by Customer of all or any
portion of Customer's Accounts (the "Former Accounts"), FDR will no longer be
obligated to provide Services for the Former Accounts for Customer pursuant to
this Agreement (except that FDR will perform Deconversion services pursuant to
the provisions of Section 4.8) and Customer and FDR agree that there shall be no
reduction in the Year 1 Minimum Processing Fee or the Minimum Processing Fees
set forth in Section 4.4.
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3.5 EXCLUSION OF CERTAIN ACQUIRED ACCOUNTS. Section 3.3 shall not apply to,
and FDR shall have no obligation to convert to the FDR System, any portfolio of
Cardholder Accounts of less than 50,000 Cardholder Accounts at the time of
Acquisition.
3.6 MERGER OR CHANGE OF CONTROL. If Customer is merged into an Entity that,
prior to such merger, was not an Affiliate of Customer, and such Entity is the
survivor of such merger (the "Surviving Entity"), then (i) the provisions of
this Agreement shall continue to apply to all Customer Accounts which were
subject to this Agreement prior to such merger, but shall not apply to any
Customer Accounts of the Surviving Entity or any of its Affiliates which were
not subject to this Agreement prior to such merger (including portfolios
acquired subsequent to the merger) and (ii) the Surviving Entity, as Customer's
successor-in-interest, shall continue to be bound by Customer's obligations
hereunder. If there is a Change of Control of Customer, then the provisions of
this Agreement shall continue to apply to all Customer Accounts of Customer and
its Affiliates immediately prior to such Change of Control, but shall not apply
to any Customer Accounts of the Entity or Entities that Acquire Control of
Customer which were not subject to this Agreement prior to such Change of
Control.
ARTICLE 4
PAYMENT FOR SERVICES
--------------------
4.1 PROCESSING FEES. Customer shall pay FDR the Processing Fees set forth
in Exhibit A to this Agreement. For each Processing Year after Processing Year
1, FDR may increase each line item of Processing Fees set forth in Exhibit A to
this Agreement which were in effect for the immediately preceding Processing
Year by an amount not to exceed a percentage of the Processing Fees which were
in effect for the immediately preceding Processing Year. The amount of the
increase for any such Processing Year shall not exceed the greater of (a) three
percent (3%) or (b) the percentage change in the CPI during a period described
below; provided, however, that in no event shall any such increase be less than
0%. The percentage change in the CPI shall be calculated, and notification given
to Customer 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 Customer and expressing the increase in said CPI
through the twelve (12) month period as a percentage.
4.2 SPECIAL FEES. Customer shall pay to FDR the Special Fees for amounts
paid to third-party providers, computed in accordance with Exhibit A to this
Agreement. If, at any time while this Agreement is in effect, the charges are
increased or decreased to FDR for items which are included in the Special Fees
or FDR obtains communication or other services included in the Special Fees by
another method, resulting in an increase or a decrease in the charges to FDR for
such items, then FDR shall increase or decrease (as appropriate) by an equal
amount the Special Fees Customer is then paying FDR for such items under this
Agreement. Such price change by FDR shall be effective on the effective date of
the increase to FDR.
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4.3 NEW PRODUCTS. If FDR commences to offer any new services or products
generally to its customers and Customer elects to use any such service or
product, or if Customer elects to use services or products which Customer had
not previously elected to use, then FDR shall provide such service or product at
FDR's then current fees and charges for such service or product or such other
price as FDR and Customer may mutually agree.
4.4 MINIMUM FEES. In Processing Year 1, Customer will require and shall pay
FDR for processing services sufficient to generate aggregate Processing Fees at
least equal to one million five hundred thousand dollars ($1,500,000.00) (the
"Year 1 Minimum Processing Fee"). In each Processing Year after Processing Year
1, Customer will require and shall pay FDR for processing services sufficient to
generate aggregate Processing Fees at least equal to eighty percent (80%) of the
Processing Fees paid during the immediately preceding Processing Year, but in no
event less than one million dollars ($1,000,000.00) (the "Minimum Processing
Fees"). FDR shall calculate the total Processing Fees paid by Customer in
respect of Services performed during each Processing Year (the "Total Annual
Processing Fees") within ninety (90) days after the end of each Processing Year
and will, after ten (10) days written notice to Customer, draw upon Customer's
account pursuant to Section 4.5 of this Agreement for the amount, if any, by
which the Year 1 Minimum Processing Fees or the Minimum Processing Fees, as
applicable, for the Processing Year exceed the Total Annual Processing Fees for
the Processing Year. For the avoidance of doubt and based on economic
assumptions material to each party underlying this transaction, Customer and FDR
expressly agree that Customer shall pay FDR Processing Fees each Processing Year
in an amount at least equal to the Year 1 Minimum Processing Fee or the Minimum
Processing Fees, as applicable, until this Agreement is terminated by Customer
solely pursuant to the provisions of Section 9.2 of this Agreement or until FDR
terminates this Agreement and invokes compensatory payments pursuant to Section
9.4 of this Agreement.
4.5 METHOD OF PAYMENT. To facilitate the payment of Processing Fees,
Special Fees, compensatory payments pursuant to Section 9.4 of this Agreement
and any other fee, tax, interest payment, charge or amount due or payable to FDR
under this Agreement, Customer shall provide FDR with access to a bank account
of Customer's funds not requiring signature, including notifying FDR of the
demand deposit account number and transit routing number for the account. FDR
may draw upon the bank account to pay fees, taxes, interest payments, charges,
or any other amount due or payable to FDR under the terms of this Agreement. The
detailed records of the amounts drawn on the account of Customer will be
provided by FDR to Customer on a monthly basis. FDR shall be under no obligation
to effect the Transfer until the account has been established as provided
herein.
4.6 INTEREST. If FDR is unable to obtain payment of Processing Fees,
Special Fees, compensatory payments pursuant to Section 9.4 of this Agreement or
any other fee, tax, interest payment, charge or amount due or payable to FDR
under this Agreement at the time provided for payment under this Agreement, the
unpaid amount of any Processing Fees, Special Fees, compensatory payments
pursuant to Section 9.4 of this Agreement or other fee, tax, interest payment,
charge or amount shall bear interest at the rate equal to the lesser of (a) the
sum of the then current Prime Lending Rate (as quoted by the Wall Street
Journal) plus two percent (2%) per annum, or (b) the maximum rate permitted by
applicable law, from the date on which payment should have been available until
the date on which FDR receives the payment.
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4.7 TAXES.
(a) Customer shall pay all taxes and similar charges, however
designated, which are imposed by any governmental authority by reason of FDR's
fulfillment of its obligations hereunder except for income taxes payable by FDR
on amounts earned by FDR or property taxes payable by FDR on property owned by
FDR. Without limiting the foregoing, Customer shall promptly pay FDR for any
amounts actually paid or required to be collected or paid by FDR.
(b) Customer authorizes FDR to calculate the total amount of sales
taxes due from Customer hereunder. Customer shall supply FDR with all
information necessary for FDR to compute and remit the taxes (including any tax
exempt certificate, claim letter, or similar documentation). FDR shall remit the
sales taxes to the appropriate taxing authority on behalf of Customer based on
the information available to FDR. If FDR underpays or overpays such sales taxes,
Customer shall be responsible for promptly paying any shortfalls (including any
penalties or interest) and for collecting any refunds from the appropriate
taxing authority; provided, however, if such underpayment is solely the result
of the negligence of FDR, FDR shall be responsible for any penalties associated
with such underpayment.
4.8 DECONVERSION. Upon (i) expiration or termination of this Agreement,
(ii) transfer by Customer of any accounts from the FDR System to a third party,
(iii) abandonment or deletion by Customer (or by FDR, MasterCard or VISA on
behalf of Customer) of any BIN or ICA of Customer relating to accounts from the
FDR System, or (iv) manual removal by Customer of any accounts from the FDR
System, Customer shall pay FDR, at FDR's then current rates, for each activity
completed by FDR in order to accomplish the Deconversion of affected accounts,
including systematic stripping and removal of all such account information from
the FDR System. Upon Customer notification pursuant to Exhibit F and assuming
payment in full by Customer of all amounts due and undisputed under this
Agreement, FDR will perform the activities necessary to accomplish Deconversion.
ARTICLE 5
DISPUTE RESOLUTION AND INDEMNIFICATION
--------------------------------------
5.1 INFORMAL DISPUTE RESOLUTION. Any controversy or claim between FDR and
Customer arising from or in connection with this Agreement whether based on
contract, tort, common law, equity, statute, regulation, order or otherwise
("Dispute"), shall be resolved as follows:
(a) upon written request of either FDR or Customer, the parties shall
each appoint a representative to meet and attempt 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; and
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(c) arbitration pursuant to Exhibit D for the resolution of a Dispute
may not be commenced until the earlier of:
(i) the date that the designated representatives conclude in good
faith that amicable resolution through continued negotiation
of the matter does not appear likely; or
(ii) thirty (30) days after the date that either party requested
negotiation of the Dispute pursuant to Section 5.1(a) of this
Agreement.
(d) Notwithstanding the foregoing, this Section 5.1 shall not be
construed to prevent a party from instituting formal proceedings at any time 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 10.7.
(e) Any oral or written communications made by either party to the
other pursuant to this Section 5.1 shall be deemed privileged settlement
communications inadmissible as evidence in any litigation or arbitration between
the parties.
5.2 ARBITRATION. If Customer and FDR are unable to resolve any Dispute in
the manner set forth in Section 5.1, such Dispute shall be submitted to
arbitration in the manner set forth in Exhibit D.
5.3 INDEMNIFICATION. The indemnification rights and obligations of Customer
and FDR under this Agreement are contained in Exhibit E.
ARTICLE 6
LIMITATION OF LIABILITY
-----------------------
6.1 LIMITATION ON LIABILITY. FDR's cumulative liability for any loss or
damage, direct or indirect, for any cause whatsoever (including, but not limited
to those arising out of or related to this Agreement) with respect to claims
(whether third party claims, indemnity claims or otherwise) relating to events
in any one Processing Year shall not under any circumstances exceed the lesser
of (a) the Minimum Processing Fees for such Processing Year and, in the case of
Processing Year 1, the Year 1 Minimum Processing Fee or (b) the amount of the
Processing Fees paid to FDR pursuant to this Agreement for Services performed in
the immediately preceding Processing Year, and, in the case of Processing Year
1, the Year 1 Minimum Processing Fee.
6.2 NO SPECIAL DAMAGES. IN NO EVENT SHALL FDR BE LIABLE UNDER ANY THEORY
FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES.
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ARTICLE 7
DISCLAIMER OF WARRANTIES
------------------------
FDR SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY, ARISING OUT OF OR RELATED TO THIS
AGREEMENT. THIS AGREEMENT IS A SERVICE AGREEMENT AND THE PROVISIONS OF THE
UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO IT.
ARTICLE 8
TERM OF AGREEMENT
-----------------
8.1 TERM. This Agreement is effective from the date hereof and shall extend
for three (3) Processing Years (the "Original Term"). Processing Year 1 of the
Term shall commence on the first day of November, 1999 and continue through the
last day of October, 2000 . For purposes of this Agreement, a "Processing Year"
means each twelve (12) month period commencing on the first day of November and
ending on the last day of October.
8.2 RENEWAL. After the Original Term, this Agreement shall automatically be
renewed for consecutive periods of one (1) Processing Year (each a "Renewal
Term"), unless either party gives the other party written notice at least nine
(9) months prior to the termination date of the Original Term or the
then-current Renewal Term that the Agreement will not be renewed.
ARTICLE 9
TERMINATION
-----------
9.1 TERMINATION BY FDR. FDR may terminate this Agreement:
(a) if Customer fails to establish the account required by Section 4.5
of this Agreement within twenty-four (24) hours after written notice of its
failure to establish the account or immediately without notice if Customer
thereafter fails to maintain the account;
(b) if FDR is unable to receive payment from Customer of any amounts
due and undisputed under this Agreement because sufficient funds are not
available in the account established pursuant to Section 4.5 of this Agreement
and Customer, within forty eight (48) hours after written notice, fails to
provide and maintain sufficient funds in the account to permit FDR to receive
full payment of such amounts from the account or immediately without notice if
FDR has the right more than three times in any twelve month period to give
notice under this paragraph whether or not the notice is given;
12
(c) immediately without notice upon the termination of Customer's
membership in VISA or MasterCard, or if FDR has the right to give notice to
MasterCard or VISA as provided under "Failure to Transfer" in Exhibit F to this
Agreement whether or not the notice is given;
(d) if Customer fails to pay any Daily Amount when required as
provided in Exhibit F to this Agreement and does not cure the failure within
four (4) hours after written notice of the failure or immediately without notice
if FDR has the right more than three times in any twelve month period to give
notice under this paragraph whether or not the notice is given;
(e) if Customer fails to pay any amount due under this Agreement which
does not give rise to the right to terminate under any other provision of this
Section 9.1 within twenty (20) days after written notice to Customer of its
failure to pay the amount;
(f) upon twenty-four (24) hours notice by FDR if FDR has terminated
Interchange Settlement of transactions on behalf of Customer as described under
"Violation of Rules" in Exhibit F to this Agreement for more than ten (10)
consecutive days or for more than twenty (20) days in any Processing Year; or
(g) if any Insolvency Event occurs with respect to Customer.
The rights of FDR to terminate under this Section 9.1 are cumulative and the
existence of the right under any provision or subsection is not exclusive of the
right under any other provision or subsection.
9.2 TERMINATION BY CUSTOMER. Customer may terminate this Agreement:
(a) if any Insolvency Event occurs with respect to FDR;
(b) pursuant to the provisions of Section 2.10 if FDR fails to perform
in accordance with the Performance Guidelines; or
(c) upon written notice to FDR if FDR fails to perform or observe any
of the terms, covenants or conditions of this Agreement, which when in the
context of this Agreement taken as a whole are material and FDR fails to cure
such breach within thirty (30) days following its receipt of the written notice
of such breach.
In the event of a termination of this Agreement by Customer pursuant to item
(a), (b) or (c) above, Customer shall not be responsible for payment to FDR of
any compensatory payment set forth in Section 9.4(a) below. In addition to the
foregoing , Customer may terminate this Agreement for its convenience at any
time upon at least one hundred eight (180) days' prior written notice to FDR,
provided that Customer pays to FDR all amounts described in Section 9.4 of this
Agreement, including, but not limited to, the compensatory payment described
therein.
13
9.3 EFFECT OF TERMINATION. Except as provided in Section 4.8, upon
termination, FDR shall have no further obligation to provide services to
Customer and all outstanding unpaid amounts due and owing to FDR shall become
immediately due and payable. Termination shall not affect the following:
(a) the obligation of Customer to pay for services rendered or any
other obligation or liability owing or which becomes owing under this Agreement
whether the obligations arise prior to or after the date of termination
including the obligations to make the payments provided in Article 4 of this
Agreement, Section 9.4 of this Agreement and as described under "Trailing
Activity" in Exhibit F to this Agreement;
(b) the obligations set forth in this Agreement in connection with any
third party software pursuant to Exhibit A; or
(c) the obligations of Customer regarding deletion, transfer of
abandonment of BINs and ICAs pursuant to Section 4.8 and Exhibit F; or
(d) the provisions of Articles 5, 6, 7, and 10 and Exhibits D and E.
9.4 PAYMENTS UPON TERMINATION.
(a) If FDR elects to terminate this Agreement for cause (for purposes
of this Section 9.4(a), "for cause" shall mean pursuant to the terms of Section
9.1) or if Customer elects to terminate this Agreement for its convenience
pursuant to the provisions of Section 9.2, Customer and FDR agree that, based on
economic assumptions material to each party, Customer shall make a compensatory
payment to FDR. Such compensatory payment shall be made by Customer upon
termination by FDR, and prior to Deconversion, and shall equal the sum of:
(i) the Year 1 Minimum Processing Fee or Minimum Processing Fees,
as applicable, as set forth in Section 4.4 of this Agreement,
for the Processing Year in which the termination occurs (after
crediting Customer for any Processing Fees paid for Services
provided in such Processing Year); and
(ii) the sum of the present values of a payment in each full
Processing Year (other than the year of termination) which
remains during the Term of this Agreement in an amount equal
to thirty five percent (35%) of the Year 1 Minimum Processing
Fees or Minimum Processing Fees, as applicable, for the
Processing Year in which termination occurs.
(b) In determining the present value of the amount set forth in (a)
(ii) above, an interest rate equal to the three (3) month Treasury Xxxx Rate, as
quoted by 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 Processing Year.
14
(c) FDR and Customer agree that the compensatory payment set forth in
Section 9.4(a) is a reasonable estimation, as of the date of this Agreement, of
the actual damages which FDR would suffer if FDR were to fail to receive the
processing business for the full Term.
(d) Despite the foregoing, nothing in this Section 9.4 shall limit
either party's right to recover from the other party any amounts for which such
other party is otherwise liable under this Agreement, except that upon payment
of amounts due under Section 9.4(a), Customer shall not be responsible for
Minimum Processing Fee shortfalls after the year of termination.
ARTICLE 10
CONFIDENTIAL NATURE OF DATA
---------------------------
10.1 CUSTOMER'S PROPRIETARY INFORMATION. Upon Customer's request, FDR shall
return to Customer (upon the expiration or termination of all of FDR's
obligations under this Agreement and payment by Customer of all amounts due to
FDR hereunder) all or any requested portion of the proprietary and confidential
data of Customer disclosed to FDR including the Cardholder Master Files, Agency
Bank Master Files, Cardholder Revolving Transaction Files and CIS Memo Files
(collectively, "Customer's Proprietary Information").
10.2 FDR'S PROPRIETARY INFORMATION. Customer acknowledges that all product
and system developments, Enhancements, improvements and modifications disclosed,
provided or used by FDR shall remain solely and exclusively the property of FDR.
Customer shall not obtain any proprietary rights in any proprietary or
confidential information which has been or is disclosed to Customer by FDR,
including without limitation, any data or information that is a trade secret or
competitively sensitive material, User Manuals, screen displays and formats,
FDR's computer software and documentation, software performance results, flow
charts and other specifications (whether or not electronically stored), data and
data formats (collectively, "FDR's Proprietary Information") whether any of the
materials are developed or purchased specifically for performance of this
Agreement or otherwise. Customer shall, and shall cause its Affiliates to,
return to FDR all of FDR's Proprietary Information upon the expiration or
termination of this Agreement.
10.3 CONFIDENTIALITY OF AGREEMENT. Except as required by law, Customer
shall keep confidential and not disclose, and shall cause its Affiliates and
their respective directors, officers, employees, representatives, agents and
independent contractors to keep confidential and not disclose, any of the terms
and conditions of this Agreement to any third party without the prior written
consent of FDR.
10.4 CONFIDENTIALITY. FDR and Customer shall maintain Customer's
Proprietary Information and FDR's Proprietary Information, respectively, in
strict confidence. Without limiting the generality of the foregoing, FDR and
Customer each agree:
15
(a) not to disclose or permit any other person or Entity access to
Customer's Proprietary Information or FDR's Proprietary Information, as
appropriate, except that the disclosure or access shall be permitted to an
employee, officer, director, agent, representative, external or internal
auditors or independent contractor of the party requiring access to the same in
the course of his or her employment or services;
(b) to ensure that its employees, officers, directors, agents,
representatives and independent contractors are advised of the confidential
nature of Customer's Proprietary Information and FDR's Proprietary Information,
as appropriate, and are precluded from taking any action prohibited under this
Article 10, provided that in any event Customer and FDR shall each be liable for
any breach of this Article 10 by their respective employees, officers,
directors, agents, representatives and independent contractors;
(c) not to alter or remove any identification, copyright or
proprietary rights notice which indicates the ownership of any part of
Customer's Proprietary Information or FDR's Proprietary Information, as
appropriate;
(d) to notify the other promptly and in writing of the
circumstances surrounding any possession, use or knowledge of Customer's
Proprietary Information or FDR's Proprietary Information, as appropriate, at any
location or by any Entity other than those authorized by this Agreement; and
(e) not to use Customer's Proprietary Information or FDR's Proprietary
Information (as applicable) for any purpose other than for the fulfillment of
its obligations under this Agreement.
10.5 RELEASE OF INFORMATION. Despite the foregoing, Customer agrees that
Customer's Proprietary Information may be made available to VISA, MasterCard or
to supervisory or regulatory authorities of Customer upon the written request of
any of the foregoing; provided, however, that FDR will provide Customer with
notice and an opportunity to object in the case of any non-routine requests from
such Entities.
10.6 EXCLUSIONS. Nothing in this Article 10 shall restrict either party
with respect to information or data identical or similar to that contained in
Customer's Proprietary Information or FDR's Proprietary Information, as
appropriate, but which: (a) the receiving party can demonstrate was rightfully
possessed by it before it received the information from the disclosing party;
(b) was in the public domain prior to the date of this Agreement or subsequently
becomes publicly available through no fault of the receiving party or any Entity
acting on its behalf; (c) was previously received by the receiving party from a
third party or is subsequently furnished rightfully to the receiving party by a
third party (no Affiliate of FDR or Customer shall be considered to be a third
party) not known to be under restrictions on use or disclosure; (d) is
independently developed by such party; (e) is required to be disclosed by law,
regulation or court order, provided that the disclosing party will exercise
reasonable efforts to notify the other party prior to disclosure; or (f) is
required to be disclosed to comply with or to enforce the terms of this
Agreement.
16
10.7 REMEDY. If either party breaches this Article 10, the non-breaching
party will suffer irreparable harm and the total amount of monetary damages for
any injury to such party will be impossible to calculate and therefore an
inadequate remedy. Accordingly, the non-breaching party may (a) seek temporary
and permanent injunctive relief against the breaching party or (b) exercise any
other rights and seek any other remedies to which the non-breaching party may be
entitled to at law, in equity and under this Agreement for any violation of this
Article 10. The provisions of this Article 10 shall survive the expiration or
termination of this Agreement.
ARTICLE 11
REPRESENTATIONS
---------------
11.1 FDR'S REPRESENTATION. FDR represents and warrants that the execution
and delivery of this Agreement and the consummation of the transaction herein
contemplated does not conflict in any material respect with or constitute a
material breach or material default under the terms and conditions of any
documents, agreements or other writings to which it is a party.
11.2 CUSTOMER'S REPRESENTATION. Customer represents and warrants that the
execution and delivery of this Agreement and the consummation of the transaction
herein contemplated does not conflict in any material respect with or constitute
a material breach or material default under the terms and conditions of any
documents, agreements or other writings to which it is a party.
ARTICLE 12
INTERCHANGE SETTLEMENT
----------------------
FDR and Customer agree that they will handle and settle Interchange Settlement
pursuant to the terms and conditions governing Interchange Settlement as set
forth in Exhibit F.
ARTICLE 13
MISCELLANEOUS
-------------
13.1 ASSIGNMENT. Except as otherwise provided herein, the rights and
obligations of Customer are personal and not assignable, either voluntarily or
by operation of law, without the prior written consent of FDR, which consent
shall not be unreasonably withheld. In the event of a sale by Customer of all or
substantially all of Customer's Cardholder Accounts, FDR shall consent to the
assignment of Customer's rights and responsibilities hereunder to the purchaser
of Customer's Cardholder Accounts, unless FDR has reasonable objections to the
financial condition or reputation of the purchaser. Upon such assignment,
Customer shall be deemed relieved from all responsibilities and obligations
hereunder to the extent that such responsibilities and obligations are assumed
in writing by the purchaser. Subject to the foregoing, all provisions contained
in this Agreement shall extend to and be binding upon the parties hereto or
their respective successors and permitted assigns.
17
13.2 BUSINESS CONTINUITY PLAN. FDR has created a business continuity plan
(the "Business Continuity Plan") and will provide Customer with a written
summary of same upon written request. FDR reserves the right to change such
Business Continuity Plan and, upon request, will explain all changes. No change
shall degrade the quality of the Business Continuity Plan in a manner which has
a material, adverse impact on the Services. FDR will make revisions to its
Business Continuity Plan as necessary to meet or exceed regulatory agency
contingency planning criteria. FDR's Business Continuity Plan includes a
schedule for recovering critical business functions.
13.3 STATE LAW. Except as provided in Exhibit D, this Agreement shall be
governed by the laws of the State of Delaware as to all matters including
validity, construction, effect, performance and remedies without giving effect
to the principles of choice of law thereof. For purposes of any suit, action or
proceeding in connection with any claim arising out of this Agreement, Customer
agrees that any process to be served in connection therewith shall, if
delivered, sent or mailed in accordance with Section 13.4, constitute good,
proper and sufficient service thereof.
13.4 NOTICE. All notices which either party may be required or desire to
give to the other party shall be in writing and shall be given by personal
service, telecopy, registered mail or certified mail (or its equivalent), or
overnight courier to the other party at its respective address or telecopy
telephone number set forth below. Mailed notices and notices by overnight
courier shall be deemed to be given upon actual receipt by the party to be
notified. Notices delivered by telecopy shall be confirmed in writing by
overnight courier and shall be deemed to be given upon actual receipt by the
party to be notified.
If to FDR: With a copy to:
First Data Resources Inc. First Data Resources Inc.
00000 Xxxxxx Xxxxx. 00000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Attn: President Attn: General Counsel
Telecopy Number: 000-000-0000 Telecopy Number: 000-000-0000
If to Customer: With a copy to:
Fidelity Federal Bank Bank Plus Credit Services
0000 Xxxxxxxx Xxxxxxxxx 00000 X.X. Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxx 00000
Attn: Chief Executive Officer Attn: Chief Operating Officer
A party may change its address or addresses set forth above by giving the other
party notice of the change in accordance with the provisions of this section.
18
13.5 WAIVER. The failure of either party at any time to require performance
by the other party of any provision of this Agreement shall not affect in any
way the full right to require the performance at any subsequent time. The waiver
by either party of a breach of any provision of this Agreement shall not be
taken or held to be a waiver of the provision itself.
13.6 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be
deemed to create a partnership, joint venture or similar relationship between
the parties. The parties' relationship shall be that of independent parties
contracting for services; provided that, for purposes of Interchange Settlement
only, the parties relationship shall be that of principal and agent as set forth
in Exhibit F. Neither party shall hold itself out as having the authority to
bind the other except as specifically provided in connection with Interchange
Settlement. All personnel and other agents employed by either party in
connection with this Agreement are such party's or its agent's employees and not
employees or agents of the other party.
13.7 THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for
the benefit of FDR and Customer and shall not confer any rights upon any Entity
not a party to this Agreement.
13.8 SUBCONTRACTORS. FDR may subcontract all or any part of the Services,
but, notwithstanding any such subcontract, FDR shall remain primarily
responsible for performance of the Services.
13.9 FORCE MAJEURE AND RESTRICTED PERFORMANCE. If performance by either
party hereto of any service or obligation under this Agreement, including
Transfer or Deconversion, is prevented, restricted, delayed or interfered with
by reason of labor disputes, strikes, acts of God, floods, lightning, severe
weather, shortages of materials, rationing, utility or communication failures,
failure of MasterCard or VISA, failure or delay in receiving electronic data,
earthquakes, war, revolution, civil commotion, acts of public enemies, blockade,
embargo, or any law, order, proclamation, regulation, ordinance, demand or
requirement having legal effect of any government or any judicial authority or
representative of any such government, or any other act, omission or cause
whatsoever, whether similar or dissimilar to those referred to in this clause,
which are not reasonably foreseeable by, and are beyond the reasonable control
of, the offending party, then the offending party shall be excused from the
performance of its obligation so affected to the extent of the prevention,
restriction, delay or interference. As a condition to continuing to perform
embossing services for card issuing members of VISA, FDR was required to enter
into VISA Card Personalization Agreements (the "VISA Agreements"). Under certain
circumstances VISA is permitted, pursuant to the VISA Agreements, to temporarily
or permanently prevent or restrict FDR's right to perform embossing services for
card issuing members of VISA. Customer and Customer's Transaction Card
Affiliates hereby agree that if, as a result of VISA exercising its rights under
the VISA Agreements, FDR is prevented or restricted by VISA from performing
embossing services for Customer or Customer's Transaction Card Affiliates, then
FDR shall be excused from the performance of such embossing services to the
extent of such prevention or restriction by VISA.
13.10 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable for any reason, the invalidity shall not affect the validity of
the remaining provisions of this Agreement, and the parties shall substitute for
the invalid provisions a valid provision which most closely approximates the
intent and economic effect of the invalid provision.
19
13.11 AUDIT. From time to time during the Term of this Agreement, FDR will
allow a third party, selected by FDR, to perform an audit of the electronic data
processing environment maintained by FDR to provide the services contemplated
under this Agreement. FDR shall provide Customer and its primary federal
regulatory agency with a copy of the results of the audit and/or with a copy of
the SAS 70 audit report if requested in writing. FDR shall submit to an
examination by the United States Office of Thrift Supervision ("OTS"), at
reasonable times and upon reasonable notice, in order to evaluate and monitor
the soundness of FDR so as to limit Customer's risk. OTS will have the authority
and responsibility provided pursuant to the Examination Parity and Year 2000
Readiness for Financial Institutions Act, 12 U.S.C. 1464(d)(7) relating to
services performed under this Agreement. FDR is examined routinely by the
federal agencies of the Federal Financial Institutions Examination Council,
including the Office of Thrift Supervision. Customer may obtain copies of
examination reports by written request to its primary federal regulatory agency.
13.12 RISK OF LOSS. Customer shall be responsible for any and all risk of
loss to any tangible item (a) provided by FDR for Customer (including without
limitation statements and embossed cards) upon the delivery of such items to the
U.S. Postal Service or such other courier as Customer may select, and (b)
provided by Customer to FDR until actual receipt of such items by FDR. It is
expressly understood that the U.S. Postal Service and any courier selected by
Customer are the agents of Customer and not FDR.
13.13 EQUAL EMPLOYMENT OPPORTUNITY. FDR will not discriminate against any
employee or applicant for employment because of race, color, religion, sex,
national origin, disability, age or veteran status as ordered by the Secretary
of Labor pursuant to Section 202 of Executive Order 11246, Section 503 of the
Rehabilitation Act of 1973, and Section 402 of the Vietnam Era Veterans
Readjustment Assistance Act of 1974.
13.14 ENTIRE AGREEMENT. This Agreement, including Exhibits and the executed
Affiliate Agreements, if any, sets forth all of the promises, agreements,
conditions and understandings between the parties respecting the subject matter
hereof and supersedes all negotiations, conversations, discussions,
correspondence, memorandums and agreements between the parties concerning the
subject matter.
13.15 AMENDMENTS. This Agreement may not be amended except by a writing
signed by authorized representatives of both parties to this Agreement.
13.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
20
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed
by their duly authorized officers as of the date first written above.
FIRST DATA RESOURCES INC.
By: /S/ XXXX X. XXXX
------------------------------
Name: XXXX X. XXXX
------------------------------
Title: Executive Vice President
------------------------------
FIDELITY FEDERAL BANK,
a Federal Savings Bank
By: /S/ XXXX XXXXX
------------------------------
Name: XXXX XXXXX
------------------------------
Title: Chief Executive Officer (CEO)
------------------------------
21
EXHIBIT A
SERVICES/PRICING
I. THE FOLLOWING DOCUMENTS SPECIFICALLY DESCRIBE THE SERVICES REFERRED TO
IN SECTION II:
User Manuals:
Adjustments
Application Controls
Applications
Authorizations
Automated Output System GUI
Automated Transaction Processing
Cardholder Account Maintenance
Cardholder Billing
Cardholder Communication
Cardholder New Accounts
Cardholder Non-Monetary Transactions
Cardholder Plastics
Cardholder Select
Cardholder System Features
Chargeback Message Codes
Chargebacks
Client-Defined Screens
Collections
Collections Productivity Information
Commercial Cards
Commercial View
Correspondence Management
Credit
Customer Inquiry Management System
Customer Inquiry System
Electronic Ticket Capture
Electronic Ticket Capture "PLUS"
Enterprise Presentation
Falcon Fraud Detection System
First Conference
Fraud Control Options
Issuer Marketing Products
Letter Fundamentals
Merchant Letters
Merchant New Accounts
Merchant Non-Monetary Entry
Merchant Processing
Monetary Entry
Off-Line Debit Card
Online Product Control File Parameters
PIN Management
Plastics Related Formats
Point-of-Sale Products
Exh. A - 1
Product Control File
Product Control File Utilities
Recovery 1
Recovery 1 Controls
Reference Manual
Reports Management System
Retail Processing
Retrievals
Rewards
Security
Settlement
Strategy Management
System Administration
System Overview
Customer bulletins issued by FDR
II. GENERAL SERVICES
A. FDR will provide Customer with an on-line terminal facility (not the
terminals themselves), on-line access to Transaction Card processing software,
adequate computer time and other mechanical Transaction Card services as more
specifically described in the documents referred to in Section I.
B. Reports will be made available to Customer in accordance with FDR's
Reports Management System (RMS).
C. Specific Services are defined in Section IV.
III. ANCILLARY SERVICES
A. InfoSight Services In order to allow Customer and Customer's
Transaction Card Affiliates (hereinafter collectively referred to as "Customer")
with the InfoSight Services set forth in this Agreement, FDR shall permit
Customer to access Customer's data base pursuant to the use of certain software
which FDR licensed from Oracle Corporation ("Oracle") pursuant to a Software
License and Services Agreement dated November 20, 1992 (the "InfoSight
Software").
(1) Customer represents and warrants to FDR that it will permit the
InfoSight Services to be utilized or accessed in its internal
business only by its own personnel. Customer shall not copy the
InfoSight Software, nor shall Customer reverse assemble or
reverse compile the InfoSight Software program, nor transfer,
sublicense, rent, lease or assign the InfoSight Software.
(2) The provisions set forth in this section only grant Customer
the right to use the InfoSight Software and do not grant any
rights of ownership to Customer. Customer shall not publish any
results of any benchmark tests run on the InfoSight Software.
(3) If FDR's right to license the use of the InfoSight Software to
Customer is terminated because the InfoSight Software infringes
upon the copyright, patent, or other proprietary rights of any
party or for any other reason, FDR shall have the right to
terminate the provision of the InfoSight Services upon thirty
(30) days notice to Customer, or such shorter period of notice
as coincides with the termination of FDR's right to license the
use of the InfoSight Software, and FDR shall have no further
liability to Customer with respect to the terminated services.
Exh. A - 2
(4) Within thirty (30) days after the termination of this
Agreement, or the earlier termination of Customer's license to
use the InfoSight Software, Customer shall deliver to FDR all
copies of the documentation, together with all separate
informational materials provided with respect to the InfoSight
Services or the InfoSight Software, in Customer's possession,
custody or control or, at Customer's discretion, shall destroy
the same, as directed by FDR. In addition, an officer of
Customer shall certify in writing to FDR that, to the best of
its knowledge, use of the InfoSight Software has been
discontinued and all items have been returned or destroyed as
required in this section.
(5) Customer agrees to indemnify and hold harmless Oracle, its
subsidiaries, Affiliates, officers, directors, employees and
agents from and against any and all claims, demands, liability,
loss, cost, damage or expense, including attorneys' fees and
costs of settlement, resulting from or arising out of (i) the
failure of Customer to observe any covenant or condition set
forth in this section, (ii) the violation by Customer of any
applicable statute, law or regulation associated with the
InfoSight Software, or (iii) Customer's use of the InfoSight
Services in a manner not provided for in this section.
(6) Customer acknowledges that the InfoSight Software product is
subject to restrictions and controls imposed under the U.S.
Export Administration Act. Customer certifies that neither the
InfoSight Software nor any direct product thereof is being or
will be acquired, shipped, transferred or reexported, directly
or indirectly, into any country prohibited under the Act.
(7) EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER FDR NOR ORACLE
MAKES ANY WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES TO BE
PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ORACLE
DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE INFOSIGHT
SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE
OPERATION OF THE INFOSIGHT SOFTWARE WILL BE ERROR FREE, OR THAT
DEFECTS IN THE SOFTWARE WILL BE CORRECTED. IN NO EVENT WILL
CUSTOMER HAVE ANY CAUSE OF ACTION AGAINST ORACLE, NOR WILL
ORACLE BE LIABLE TO CUSTOMER FOR ANY LOSSES, DAMAGES OR ANY
ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR
SAVINGS), INCIDENTAL DAMAGES OR PUNITIVE DAMAGES INCURRED OR
SUFFERED BY CUSTOMER EVEN IF ORACLE IS INFORMED OF THEIR
POSSIBILITY.
B. FDR LINKUP SERVICES FDR agrees to provide to Customer and Customer's
Transaction Card Affiliates (hereinafter collectively referred to as "Customer")
electronic mail services consisting of a system whereby Customer may create,
edit, transmit, store and retrieve data, in the form of textual messages and
binary files, utilizing Customer's telephone communication lines to FDR and
certain data storage facilities residing on Customer's computer equipment
("Mailboxes"). FDR shall assign to Customer a number of Mailboxes, which may be
increased or decreased by Customer at any time following at least thirty (30)
days written notice to FDR, provided that Customer shall be required to maintain
at least one (1) Mailbox at all times. In order for Customer to obtain FDR
LinkUp Services as described in this section, FDR shall distribute to Customer
cc:Mail Software and related documentation (collectively, the "cc:Mail
Software").
(1) Customer represents and warrants to FDR that it will permit the
FDR LinkUp Services to be utilized or accessed in its internal
business only by its own personnel. Each copy of the cc:Mail
Software provided to Customer may be used by Customer on a
single computer only, and in no event may Customer install any
cc:Mail product given to Customer by FDR on a network server.
Customer shall not copy the cc:Mail Software except that
Customer may make archival copies of the cc:Mail Software for
the sole purpose of having a backup copy. Customer agrees that
it will not reverse assemble or reverse compile the cc:Mail
Software program, nor transfer, sublicense, rent, lease or
assign the cc:Mail Software. The cc:Mail Software is owned by
cc:Mail, Inc., a division of Lotus Development Corporation
("Lotus") and is protected by United States copyright laws and
international treaty provisions.
Exh. A - 3
(2) Customer shall be responsible, at its expense, for all computer
equipment at Customer's locations necessary to use the cc:Mail
Software. All communication charges associated with accessing
the FDR computers and equipment used to provide FDR LinkUp
Services shall be paid by Customer.
(3) If FDR's right to distribute the cc:Mail Software is terminated
because the software infringes upon the copyright, patent, or
other proprietary rights of any party or for any other reason,
FDR shall have the right to terminate the provision of FDR
LinkUp Services upon thirty (30) days notice to Customer, or
such shorter period of notice as coincides with the termination
of FDR's right to distribute the software, and FDR shall have
no further liability to Customer with respect to the terminated
services.
(4) Within thirty (30) days after the termination of this
Agreement, or the earlier termination of Customer's right to
use the cc:Mail Software, Customer shall deliver to FDR all
copies of the relevant software and associated documentation,
together with all separate informational materials provided
with respect to the services or the software, in their
possession, custody or control or shall destroy the same, as
directed by FDR. In addition, an officer of Customer shall
certify in writing to FDR that use of the relevant software has
been discontinued and all items have been returned or destroyed
as required in this section.
(5) Customer agrees to indemnify and hold harmless Lotus, its
subsidiaries, affiliates, officers, directors, employees and
agents from and against any and all claims, demands, liability,
loss, cost, damage or expense, including attorneys' fees and
costs of settlement, resulting from or arising out of (i) the
failure of Customer to observe any covenant or condition set
forth in this Section, (ii) the violation by Customer of any
applicable statute, law or regulation, or (iii) Customer's use
of the FDR LinkUp Services.
(6) Customer acknowledges that the cc:Mail Software product is
subject to restrictions and controls imposed under the U.S.
Export Administration Act. Customer certifies that neither the
cc:Mail Software nor any direct product thereof is being or
will be acquired, shipped, transferred or reexported, directly
or indirectly, into any country prohibited under the Act.
RESTRICTED RIGHTS LEGEND. Use, duplication or disclosure by the
U.S. Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 52.227-7013. cc:Mail, Inc.,
0000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000.
(7) EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER FDR NOR LOTUS
MAKES ANY WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES TO BE
PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LOTUS
DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CC:MAIL
SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE
OPERATION OF THE SOFTWARE WILL BE ERROR FREE, OR THAT DEFECTS
IN THE SOFTWARE WILL BE CORRECTED. IN NO EVENT WILL CUSTOMER
HAVE ANY CAUSE OF ACTION AGAINST LOTUS, NOR WILL LOTUS BE
LIABLE TO CUSTOMER FOR ANY LOSSES, DAMAGES OR ANY ECONOMIC
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS),
INCIDENTAL DAMAGES OR PUNITIVE DAMAGES INCURRED OR SUFFERED BY
CUSTOMER EVEN IF LOTUS IS INFORMED OF THEIR POSSIBILITY.
Exh. A - 4
C. Equasion APS Services FDR shall make available to and perform for
Customer and Customer's Transaction Card Affiliates (hereinafter collectively
referred to as "Customer") Application Processing Services and On-Line Credit
Bureau Report Request Services using the Equasion7 Automated Credit Application
Processing System/Bureau Link7 ("Equasion APS") in accordance with the
description of services set forth in Section I of this Exhibit A. Customer shall
indemnify and hold harmless FDR and its employees from and against all claims,
damages, losses and expenses to the extent that the same arise out of FDR's
performance of Application Processing Services and On-Line Credit Bureau Report
Request Services under this Agreement, to the extent that such claim, damage,
loss or expense is caused by any error, omission or negligence of Customer,
employees of Customer or of any other persons or Entities who are directly or
indirectly associated with Customer or who directly or indirectly participate
with Customer in connection with its operations of a Transaction Card program as
Affiliates, Agent Banks or otherwise. Customer shall have no obligation to
indemnify FDR against any liability, loss or damage FDR might suffer arising
solely out of FDR's negligent performance of Application Processing Services and
On-Line Credit Bureau Report Request Services called for by this Agreement. FDR
will use due diligence in processing the application materials received from
Customer, and the performance by FDR of the Application Processing Services and
the On-Line Credit Bureau Report Request Services called for in this Agreement
shall be consistent with industry standards. Customer acknowledges that the
supplier of Equasion APS to FDR is a third party beneficiary to this Agreement.
Equasion is a registered trademark of First Data Resources Inc. Bureau Link is a
registered trademark of American Management Systems, Incorporated.
D. Recovery 1 Services In order for Customer and Customer's
Transaction Card Affiliates (hereinafter collectively referred to as "Customer")
to obtain Recovery 1 Services as described in this Exhibit A, FDR shall permit
Customer to access FDR's data base and to use the Recovery 1 Shared Services
System software and all human readable user documentation including additions,
updates, revisions, corrections and modifications to the foregoing delivered to
Customer from time to time (collectively, the "Recovery 1 Software") in
accordance with the terms and conditions contained herein.
(1) Customer represents and warrants to FDR that the Recovery 1
Software will be accessed and utilized only in conjunction with
their respective internal businesses and only by its own
personnel. Customer shall not copy, decompile, reverse compile
or reverse assemble the Recovery 1 Software nor transfer,
sublicense, rent, lease or assign the same. The provisions set
forth in this section only grant to Customer a right to use the
Recovery 1 Software and in no way grant or convey any rights of
ownership.
(2) If FDR's right to license the use of the Recovery 1 Software to
Customer is terminated because the Recovery 1 Software
infringes upon the copyright, patent or other proprietary
rights of any party or for any other reason, FDR shall have the
right to terminate the provision of Recovery 1 Services and
Customer's license to the Recovery 1 Software upon thirty (30)
days' written notice and FDR shall have no further liability to
Customer with respect to such Services or Software.
(3) Within thirty (30) days after the termination of this
Agreement, or the earlier termination of Customer's license to
use the Recovery 1 Software, Customer shall deliver to FDR all
copies of the documentation, together with all separate
informational materials provided with respect to the Recovery 1
Services or the Recovery 1 Software, in Customer's possession,
custody or control or, at Customer's discretion, shall destroy
the same, as directed by FDR. In addition, an officer of
Customer shall certify in writing to FDR that, to the best of
its knowledge, use of the Recovery 1 Software has been
discontinued and all items have been returned or destroyed as
required in this section.
Exh. A - 5
(4) Customer agrees to indemnify and hold harmless FDR, its
subsidiaries, Affiliates, officers, directors, employees and
agents from and against any and all claims, demands, liability,
loss, cost, damage or expense, including attorneys' fees and
costs of settlement, to the extent that the same arise our of
or result from (i) the failure of Customer to observe any
covenant or condition set forth in this section, (ii) the
violation by Customer of any applicable statute, law or
regulation associated with the Recovery 1 Software, or (iii)
Customer's use of the Recovery 1 Services or the Recovery 1
Software in a manner not provided for in this section.
(5) Customer acknowledges that the Recovery 1 Software product is
subject to restrictions and controls imposed under the U.S.
Export Administration Act. Customer certifies that neither the
Recovery 1 Software nor any direct product thereof is being or
will be acquired, shipped, transferred or reexported, directly
or indirectly, into any country prohibited under the Act.
(6) EXCEPT AS OTHERWISE PROVIDED HEREIN, FDR MAKES NO WARRANTIES,
WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PRODUCTS OR SERVICES TO BE PROVIDED UNDER THIS SECTION,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. FDR DOES NOT WARRANT THAT
THE FUNCTIONS CONTAINED IN THE RECOVERY 1 SOFTWARE WILL MEET
CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE RECOVERY 1
SOFTWARE WILL BE ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE
WILL BE CORRECTED. IN NO EVENT WILL CUSTOMER HAVE ANY CAUSE OF
ACTION AGAINST FDR, NOR WILL FDR BE LIABLE TO CUSTOMER FOR ANY
LOSSES, DAMAGES OR ANY ECONOMIC CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS OR SAVINGS), INCIDENTAL DAMAGES OR
PUNITIVE DAMAGES INCURRED OR SUFFERED BY CUSTOMER IN CONNECTION
WITH THE RECOVERY 1 SERVICES OR SOFTWARE EVEN IF FDR IS
INFORMED OF THEIR POSSIBILITY.
E. Personal Ticket Capture (PTC) Services In order for Customer and
Customer's Transaction Card Affiliates (hereinafter collectively referred to as
"Customer") to obtain Personal Ticket Capture (PTC) Services as described in
this section, FDR shall provide Customer with a license to use certain software
which is necessary to receive such services (the "PTC Software").
(1) The license set forth above shall govern the use of the PTC
Software by Customer including but not limited to any
warranties available to Customer with respect to the PTC
Software.
(2) Customer shall be responsible, at its expense, for all computer
equipment at Customer's locations necessary to use the PTC
Software. All communication charges associated with accessing
the FDR computers and equipment used to provide applicable
services shall be paid by Customer.
(3) If FDR's right to license the PTC Software is terminated
because the PTC Software infringes upon the copyright, patent,
or other proprietary rights of any party or for any other
reason, FDR shall have the right to terminate the provision of
the PTC Services upon thirty (30) days notice to Customer, or
such shorter period of notice as coincides with the termination
of FDR's right to license, and FDR shall have no further
liability to Customer with respect to the terminated services.
(4) Within thirty (30) days after the termination of this
Agreement, or the earlier termination of Customer's license to
use the PTC Software, Customer shall deliver to FDR all copies
of the PTC Software and associated documentation, together with
all separate informational materials provided with respect to
the PTC Services or the PTC Software, in its possession,
custody or control or shall destroy the same, as directed by
FDR. In addition, an officer of Customer shall certify in
writing to FDR that use of the PTC Software has been
discontinued and all items have been returned or destroyed as
required in this section.
Exh. A - 6
F. ACQUIRING DEBIT SERVICES
(1) In addition to the above services, FDR agrees to provide
Customer and Customer's Transaction Card Affiliates
(hereinafter collectively referred to as "Customer") with
Dial-Up Point-of-Sale ("POS") authorization services and
Electronic Ticket Capture ("ETC") services (collectively, the
"Acquiring Debit Services") in connection with the proprietary
debit card networks listed below, which list may be added to or
deleted from in FDR's sole discretion: Money Access Service,
Inc.; New York Cash Exchange; Yankee 24 (a/k/a New England
Network, Inc.); Explore (a/k/a Star System, Inc.); Maestro;
Interlink; Honor; Most; Pulse; Accel; Cash Station; Magic Line;
Tyme; Bankmate; and Kets (collectively, the 'Network'). In the
event that additional debit card networks are added, the terms
and conditions contained herein shall apply automatically
hereto. FDR currently provides the Acquiring Debit Services in
part through a Gateway Access Agreement with Electronic Data
Systems, Inc. ("EDS") and reserves the right to utilize other
access networks or to access directly the Network for purposes
of providing the Acquiring Debit Services. EDS and any
alternative network provider shall be referred to collectively
herein as the "Provider."
(2) All Acquiring Debit Services shall be provided in accordance
with the description of services set forth in Section I of this
Exhibit A of this Agreement. Prices for the Acquiring Debit
Services shall be the same as those charged to Customer in
connection with Customer's credit card operations, except as
set forth in this Exhibit A. In no event shall FDR be
responsible for, and Customer shall indemnify and hold harmless
FDR from and against, any claims, damages, losses, or expenses
to the extent that the same result from any failure,
negligence, or intentional act or omission on the part of the
Provider, the Network, or any part thereof in connection with
the Acquiring Debit Services, including but not limited to any
system downtime or improper authorization of a transaction. In
no event shall FDR be responsible for money damages hereunder
arising from or related to the Acquiring Debit Services which
exceed: (a) the amount of cash, merchandise, and/or services
erroneously dispensed by Customer, FDR, or a Merchant
subscribing to Merchant processing services with Customer
through a point of sale device; and/or (ii) the loss of funds
resulting from amounts erroneously transferred to or from an
account of FDR, Customer, or such a Merchant, in each case
directly caused by FDR's failure to properly service, maintain,
program, or operate the Acquiring Debit Services or any
misconduct or negligence on the part of FDR's officers,
employees, or agents in performing the Acquiring Debit
Services. IN NO EVENT SHALL FDR BE RESPONSIBLE FOR SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHICH CUSTOMER
OR ANY SUCH MERCHANT MAY INCUR OR EXPERIENCE ON ACCOUNT OF
ENTERING INTO OR RELYING UPON THIS AGREEMENT, EVEN IF FDR HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(3) Notwithstanding anything in this Agreement to the contrary,
FDR's obligation to provide Acquiring Debit Services shall
terminate automatically without penalty or obligation of any
type to FDR upon the earlier of: (i) the termination of the
Gateway Access Agreement with EDS; (ii) the termination of
FDR's access to the Network or any part thereof; or (iii) the
termination of Customer's membership in the Network or any part
thereof. Customer agrees to comply with all rules, regulations,
procedures, and obligations of each of the entities comprising
the Network.
G. FRAUD MANAGEMENT/FRAUD DETECTION (FALCON) SERVICES FDR shall provide
Customer and Customer=s Transaction Card Affiliates (hereinafter collectively
referred to as "Customer") with Credit Card Fraud Management/Fraud Detection
Services in conjunction with HNC, Inc., and its FalconTM software (hereinafter
referred to as the "HNC Software"), which services shall consist of those
services set forth in this section.
Exh. A - 7
(1) FDR shall provide Customer with Credit Card Fraud
Management/Fraud Detection Services by utilizing the output of
the Falcon Neural Engine computational model (designed to
detect credit card fraud) which encompasses or contains the
Falcon Credit neural network-based system, as such same
software is licensed to FDR by HNC and is commonly known as the
Falcon Credit Card Fraud Detection Model (hereinafter referred
to as the >Credit Card Output Access=) solely for the purpose
of assisting Customer in detecting possible fraudulent
transaction account activity on the credit card accounts of
Customer and for no other purpose. Except as expressly provided
in this section, no right or license under any patent,
copyright, trade secret, trademark or other intellectual
property of FDR or other person is granted or is to be inferred
from this section. Customer agrees that FDR=s providing of
Credit Card Fraud Management/Fraud Detection Services does not
confer upon Customer any license in or to the Credit Card
Computational Model.
(2) The parties acknowledge that the HNC Software, from which the
Credit Card Output Access is generated, is licensed to FDR
pursuant to a license agreement (the "HNC License Agreement").
FDR shall use commercially reasonable efforts to extend or
renew the initial or any renewal terms, as the case may be, of
the HNC License Agreement and if the HNC License Agreement
expires or is terminated, FDR shall promptly notify Customer of
such termination or expiration. FDR shall use commercially
reasonable efforts to substitute for HNC one or more software
vendors from whom FDR shall license, on commercially reasonable
terms, one or more software packages that will generate output
access that provides, in all material respects, the utility and
performance provided by the Credit Card Output Access generated
by the HNC Software.
(3) FDR and Customer shall mutually establish a fraud detection
strategy designed to fulfill Customer's fraud detection
requirements. Customer's fraud detection strategy shall be
summarized and memorialized in an authorization report which
shall set forth the variables and computational parameters
which reflect such fraud detection strategy (the "Strategy
Approval Form"). Customer will provide a single point of
contact, at least 60 days prior to beginning of service, to
establish start-up requirements. Customer shall notify FDR in
writing of the contact's identity. Customer's contact person
will be authorized to build and approve the fraud detection
strategy, to determine the fraud score criteria, to approve
product control file changes and to approve the Strategy
Approval Form. FDR shall assist Customer in the establishment
of the processing parameters designed to effectively implement
Customer's fraud detection strategy. Customer shall be solely
responsible for approving the processing parameters set forth
in the Strategy Approval Form, and shall verify that such
parameters effectively satisfy the requirements of Customer's
fraud detection strategy. FDR shall construct, or cause to be
constructed, a computational process which reasonably conforms
to Customer's Strategy Approval Form. In no event, however,
shall FDR be liable to any person for any damages caused by
either the HNC Software, any deficiency in the construction of
the processing parameters or any deficiency in the content of
the approved Strategy Approval Form. Furthermore, Customer
shall be responsible for the accuracy of all Customer data and
fraud control data provided to FDR. If Customer desires to
alter its fraud detection strategy, Customer shall notify FDR
in writing at least 30 days before such changes are to become
effective. Customer shall submit to FDR a modified Strategy
Approval Form setting forth the processing parameter changes
desired.
(4) Together with HNC, FDR will provide Customer with the following
Credit Card Call Processing Services:
(a) FDR will utilize its Fraud Detection WorkCenter, using the
HNC Software, to monitor authorizations queued as a result
of the fraud detection criteria and/or fraud score.
Exh. A - 8
(b) FDR will initiate outbound telephone calls to the
Cardholders of Customer who have had authorization activity
on their account and appear in a Fraud Detection WorkCenter
Queue Group. At Customer=s option, FDR shall either (i) use
a predictive dialer (herein defined as a mechanism by which
outbound calls to the Cardholder Accounts to be worked
hereunder are automatically dialed by the system based upon
the telephone number indicated by the Cardholder master
files of Customer resident at FDR) to place calls or (ii)
manually review accounts for fraud activity (based upon
Customer-defined criteria) in order to call only selected
accounts.
(c) FDR will make up to four attempts to reach the Cardholder
within a 48-hour period. All attempts will be made within
the hours of 8:00 a.m. and 9:00 p.m. (Central Time Zone).
(d) FDR will attempt all home and business telephone numbers as
provided by Customer's Cardholder masterfile.
(e) If FDR is unable to contact the Cardholder, a message for
the Cardholder to contact FDR at a to-be-provided 800 number
will be delivered to the Cardholder's home message machine
and/or to responsible adults.
(f) When the FDR call results in contact with the Cardholder,
and the Cardholder validates the authorization activity, FDR
will record an on-line account memo (to the Customer Inquiry
System) indicating the results of the call.
(g) When the FDR call results in contact with the Cardholder and
the Cardholder is unable to validate the activity, FDR will
initiate a Lost/Stolen Report and place a block on the
account. (Standard fees apply for the Lost/Stolen Report.)
FDR will record an on-line account memo (to the Customer
Inquiry System) indicating the results of the call.
(h) If FDR encounters activity which appears uncharacteristic or
unusual for a Cardholder Account and FDR is unable to
contact successfully the Cardholder, then FDR may place a
block on the Cardholder Account to prevent further
authorization approvals until either the Cardholder or
Customer successfully verifies the activity. On a daily
basis, FDR will fax to Customer a list of accounts which
have been blocked because of uncharacteristic or unusual
account activity. The account will remain blocked until
Customer instructs FDR in writing via fax to remove such
block.
(i) Upon the request of Customer, FDR may at its option, provide
additional services, including the following: telephone
number look-ups, inbound call processing after the 48-hour
period, fraud control services, customized reporting, etc.
These services would be provided at an additional cost to
Customer.
(j) At least annually, HNC shall analyze two separate month-end
reports within the 12-month period being analyzed produced
by the HNC Software that measure the effectiveness of
Customer's existing algorithms, provided that Customer has
over 200,000 Gross Active Credit Card Accounts. HNC shall
then provide Customer with a written analysis of the reports
interpreting the performance of the existing algorithms and
strategies and written recommendations for changes or
updates to such algorithms or strategies to improve their
performance, provided that Customer promptly provides HNC
with the two necessary month-end reports.
Exh. A - 9
(k) At Customer's request, HNC shall provide Customer with up to
five hours per month, for the first six months following the
date of commencement of Fraud Management/Fraud Detection
Services (the "Falcon Start Date"), and three hours per
month thereafter, of strategy design assistance over the
telephone at no additional charge, provided that Customer
has over 200,000 Gross Active Credit Card Accounts as of the
Falcon Start Date. This service will include recommendations
on fraud strategy design and results interpretation. If such
service exceeds the hours permitted for that particular
month, HNC will be entitled to charge Customer for such
services. HNC and Customer shall independently negotiate the
terms and costs of such additional assistance. Customer will
be entitled to on-site strategy design assistance at an
additional charge; provided, however, that Customer will
receive credit against such additional charge for any unused
telephone strategy design assistance it was eligible to
receive from HNC in that month under this paragraph at the
same rate charged for additional telephone strategy design
assistance.
(l) Upon request by Customer, HNC or FDR may, at its option,
provide the following to Customer: custom system
installation, additional training, and fraud user interface
licensing. HNC shall provide the following to Customer upon
request: fraud strategy consulting and custom fraud models.
Customer will contract directly with HNC for these services,
which will be provided at an additional cost to Customer.
(m) HNC has established a Fraud Control Consortium whereby users
of Credit Card Output Access contribute data for use by HNC
to study fraud patterns, which enables HNC to improve fraud
detection methods. If Customer chooses to join such
Consortium, Customer shall provide data to the Fraud Control
Consortium as required and requested by HNC within 30 days
after the Falcon Start Date and on a calendar quarterly
basis thereafter. If Customer does not wish to join the
Fraud Control Consortium, HNC, upon request of Customer
shall construct a custom fraud model for Customer, as an
additional service, at a cost agreed upon among FDR,
Customer and HNC. Customer acknowledges that FDR will employ
the HNC Software using the Fraud Control Consortium
algorithms to produce Credit Card Output Access for Customer
only if Customer contributes data to the Fraud Control
Consortium.
(5) Notwithstanding any other provisions of this Agreement, either
party may terminate the Credit Card Fraud Management/Fraud
Detection Services hereunder upon 30 days written notice to the
other party.
Exh. A - 10
IV. PROCESSING FEE DEFINITIONS/PRICES:
Item
Number Item Definition Price Per Item
------------- ---------------------- ------------------------------------------------------------------------ --------------------
0130 ACCD Each selected Cardholder Account of Customer which is transmitted to .0140/account
Downloaded Customer, or any other third party acting on Customer's behalf, for
Account collection purposes in connection with Customer's Automated
Customer Calling Device (ACCD).
2825 Account A match of certain values from two separate Cardholder Accounts .0014/Cardholder
Relationship within Customer's Transaction Card portfolio, indicating a relationship Account on File
between the accounts. per month
7260 Account-Level Each account of a Cardholder of Customer using Account-Level .0046/account on
Processing (ALP) - Processing that remains on Customer's masterfile on the last processing ALP
Cardholder Pricing day of the calendar month as defined on the CD-121 Ledger Activity
Account on File Report or the equivalent report. ALP Services-Cardholder Pricing
allow Customer the ability to set, change and monitor pricing parameters
(including but not limited to annual percentage rate, penalty fees,
minimum payment calculations and annual charges) on a Cardholder Account
automatically at the level of the individual Account based upon decision
tables built by Customer.
2788/ Additional Each variety of Transaction Card, other than MasterCard International, Bundled
2789/ Merchant Card Inc. ("MasterCard") and VISA U.S.A. Inc. ("VISA"), for which a
2790/ Types on File Merchant Account on File accepts transactions and/or authorizations
2791/ (Multicard) from Cardholders, including but not limited to American Express
2792/ Travel Related Services Company, Inc. ("Amex"), Discover Card, Inc.
2794/ ("Discover"), JCB International Credit Card Company, Ltd. ("JCB"),
2796/ and Citicorp Diner's Club Inc. ("Diner's Club").
2797/
2798/
2902/
5701
n/a Address The confirmation or denial of the accompanying address during an n/a
Verification electronic authorization inquiry.
2806 Address Each electronic request for an Address Verification by a Merchant of .0104/inquiry
Verification - Customer.
Acquiring
0281 Address Each instance in which the Cardholder records of Customer located at .0104/inquiry
Verification - FDR are accessed for Address Verification.
Issuing
3519 Address Each voice inquiry request received by FDR from a Merchant 1.7500/request
Verification - requesting a confirmation of the address of a Cardholder.
Voice
n/a Adaptive Control An account control system for the management of Cardholder Accounts, n/a
Services which includes (i) behavior scorecards that rank accounts according
to risk, (ii) software that implements various account management
strategies by using the behavior scores of accounts to determine
various actions to be taken on such accounts, (iii) software that
reports the results of alternative strategies to provide input to
measure the relative effectiveness of such alternative strategies;
and (iv) human statistical analysis of reports resulting in feedback
on the performance of alternative strategies and the development of
new alternative strategies (such account control system hereinafter
is referred to as the "Product"). The Product software is integrated
into FDR's credit account system software which is used to provide the
Services. The Adaptive Control Services and prices set forth in this
Exhibit A are provided for reference only. Customer and FDR hereby
agree that, prior to the commencement of any such services by FDR on
behalf of Customer, Customer and FDR shall be required to execute a
separate contract, which shall include all terms snd conditions for
the provision of such services.
Exh. A -11
8500 Adaptive Control The number of instances (transactions) in which a Cardholder Account /transaction
Basic Monthly on File (as defined herein) of Customer is processed through the
Service Behavior Scoring System, which may or may not include any of the
applicable adaptive control decision areas (specifically, credit line
management, reissue management, delinquent collections or overlimit
collections), for the applicable calendar month, subject to certain
agent-level bank exclusions. The Behavior Scoring System is an account
control system which aids in the management of credit accounts.
Components of the account control system include (i) behavior
scorecards that rank accounts according to risk, (ii) software that
implements various account management strategies by using the
behavior scores of accounts to determine various actions to be taken
on such accounts, (iii) software that reports the results of
alternative strategies to provide input to measure the relative
effectiveness of such alternative strategies; and (iv) human
statistical analysis of reports resulting in feedback on the
performance of alternative strategies and the development of new
alternative strategies.
Monthly Volume of Transactions Price Per Transaction
0 - 69,999 $.0570**
70,000 - 199,999 .0458
200,000 - 399,999 .0414
400,000 - 599,999 .0393
600,000 - 799,999 .0381
800,000 - 999,999 .0370
1,000,000 - 1,499,999 .0332
1.500,000 - 1,999,999 .0309
2,000,000 - 2,499,999 .0286
2,500,000 - 2,999,999 .0275
3,000,000 - 3,999,999 .0262
4,000,000 - 4,999,999 .0257
5,000,000 - over .0252
Customer and FDR hereby agree that the Adaptive Control Basic Monthly
Service pricing is referenced herein only for convenience, and that
such service shall only be available to Customer pursuant to a separate
Adaptive Control Service Agreement to be mutually agreed upon by
Customer, FDR and Fair, Xxxxx and Company, Inc. prior to the commencement
of such services.
8501 Adaptive Control Each of Customer's Cardholder Accounts on File (as defined herein) /account per month
Authorizations identified to use the adaptive control portion of the Behavior
Scoring System for controlling authorizations, excluding 'B', 'L',
'U' and 'Z' statused accounts. The Behavior Scoring System is an
account control system which aids in the management of credit accounts.
Components of the account control system include (i) behavior scorecards
that rank accounts according to risk, (ii) software that implements
various account management strategies by using the behavior scores of
accounts to determine various actions to be taken on such accounts,
(iii) software that reports the results of alternative strategies to
provide input to measure the relative effectiveness of such alternative
strategies; and (iv) human statistical analysis of reports resulting in
feedback on the performance of alternative strategies and the development
of new alternative strategies.
Exh. A -12
Monthly Volume of Accounts Price Per Account
0 - 69,999 $.0114**
70,000 - 199,999 .0092
200,000 - 399,999 .0083
400,000 - 599,999 .0079
600,000 - 799,999 .0076
800,000 - 999,999 .0074
1,000,000 - 1,499,999 .0066
1.500,000 - 1,999,999 .0062
2,000,000 - 2,499,999 .0057
2,500,000 - 2,999,999 .0055
3,000,000 - 3,999,999 .0052
4,000,000 - 4,999,999 .0051
5,000,000 - over .0050
Customer and FDR hereby agree that the Adaptive Control
Authorization Service pricing is referenced herein only
for convenience, and that such service shall only be
available to Customer pursuant to a separate Adaptive Control
Service Agreement to be mutually agreed upon by Customer, FDR
and Fair, Xxxxx and Company, Inc. prior to the commencement
of such services
2812 Airline Itinerary on Up to four (4) legs of detailed airline itinerary displayed on a .0050/statement
Statement Cardholder Statement.
6501 Annual Activity Each Cardholder Account for which annual activity summary detail is .0530/account
Summary Detail stored in an electronic format.
Storage
2731 Application An on-line system supporting the data entry, credit investigation, 1.0200/application
Processing credit analysis, decisioning, documentation and booking of credit
Services (EAPS) applications on the FDR System. Services include automated credit
scoring and credit limit assignment.
2840 APS Relationship Each storage of a record of Customer depository accounts on the FDR .0052/depository
Account Storage System. Upon entry of application data, a search of the deposit file is account
executed with matches reported to allow
identification of an existing consumer
relationship. Resulting matches can be
queued by the system for verification.
6601 ARU Each audio response unit (ARU) authorization service provided to a .2921/inquiry
Authorization - Merchant of Customer by the use of a touch-tone telephone and local
Local Line Inquiry line telecommunication services. Customer shall pay FDR for each
instance during which FDR has electronic contact with a Merchant of
Customer and receives the Merchant number. In addition, if an audio
response unit authorization inquiry results in a voice inquiry,
Merchant request for assistance or a security action, Customer will
pay FDR for the audio response unit authorization and the appropriate
voice and/or security action charge as provided in this Agreement.
If a Merchant of Customer attempts to use its normal line to obtain
an authorization and the Merchant is unable to use such line
and uses another line, Customer shall pay FDR at the rate charged for
the line used by the Merchant. Local lines for authorization services
are available in the cities listed on-line under a TC-400 transaction.
Xxx. X -00
0000 XXX Each audio response unit (ARU) authorization service provided to a .4137/inquiry
Authorization - Merchant of Customer by the use of a touch-tone telephone and
Interstate WATS interstate WATS line telecommunication services. Customer shall pay
Line Inquiry FDR for each instance during which FDR has electronic contact with a
Merchant of Customer and receives the Merchant number. In addition,
if an audio response unit authorization inquiry results in a voice
inquiry, Merchant request for assistance or a security action, Customer
will pay FDR for the audio response unit authorization and the
appropriate voice and/or security action charge as provided in this
Agreement.
If a Merchant of Customer attempts to use its normal line to obtain
an authorization and the Merchant is unable to use such line and
uses another line, Customer shall pay FDR at the rate charged for the
line used by the Merchant.
6602 ARU Each audio response unit (ARU) authorization service provided to a .4868/inquiry
Authorization - Merchant of Customer by the use of a touch-tone telephone and
Intrastate WATS intrastate WATS line telecommunication services. Customer shall pay
Line Inquiry FDR for each instance during which FDR has electronic contact with a
Merchant of Customer and receives the Merchant number. In addition,
if an audio response unit authorization inquiry results in a voice
inquiry, Merchant request for assistance or a security action, Customer
will pay FDR for the audio response unit authorization and the
appropriate voice and/or security action charge as provided in this
Agreement.
If a Merchant of Customer attempts to use its normal line to obtain
an authorization and the Merchant is unable to use such line and
uses another line, Customer shall pay FDR at the rate charged for the
line used by the Merchant.
0204/ Assistance Request Each miscellaneous customer assistance request from a Cardholder or 1.7500/request
0227/ (Voice) Merchant of Customer that is received by FDR's voice authorization
0228 center.
2519 ATM Balance Each inquiry into the account records of a Cardholder of Customer by .0370/inquiry
Inquiry the Cardholder via an automated teller machine ("ATM").
2883 Auto PIN Change Each call made by a Cardholder of Customer requesting a change to .8415/call
the Personal Identification Number (PIN) associated with the
Cardholder's Transaction Card by the use of a touch-tone telephone.
2722 Automated The set-up of each new account for a Cardholder Account of Customer 1.0972/account
Account Transfer - which is reported Lost or Stolen. Account history is moved from one
Account account and rebuilt on a new one.
Transferred
2723 Automated A transferred Cardholder Account of Customer, which has been .5538/account
Account Transfer - evaluated against Customer's reissue criteria and approved by
Plastic Reissued Customer, is issued a new plastic(s).
2724 Automated A transferred Cardholder Account of Customer, which has been 1.0972/account
Account Transfer - evaluated against Customer's reissue criteria and not approved by
Plastic Reissue Customer, is suspended for review by Customer's personnel.
Suspended
2725 Automated The storage of each suspended account of Customer on the FDR .0109/account
Account Transfer - system awaiting review and disposition by Customer.
Suspended
Account Storage
Exh. A -14
2845 Automated ICS The automatic reporting of a fraud account to the Issuer's .2000/transaction
Fraud Report Clearinghouse Service (ICS) by the FDR System each time a
Transaction Cardholder Account is set to fraud via an "SL" or "SN" transaction.
0660 Automatic Action A system generated entry made to a Cardholder Account of Customer .0150/item
Entry which appears on Customer's collection screens indicating a collection-
related activity, including but not limited to external status changes,
account re-ages and charge-offs.
2778/ Automatic Each automatic initiation of a chargeback by the FDR System based 2.7433/chargeback
2779/ Chargeback upon predefined parameters, including but not limited to transactions initiated
2780/ involving expired account plastics, accounts listed in the Combined
2831 Warning Bulletin, and accounts which exceed presentment parameters.
n/a Balance An online system for the production, processing and management of n/a
Consolidation balance transfer checks, including authorization and posting of checks,
creation of a check data file, transmission of the check data file to
a third-party vendor selected by FDR for printing and mailing of checks
and related letters and inserts and product management through production
of online balance consolidation reports and generation of a CIS Memo
entry for each balance consolidation request. The third party vendor
selected by FDR for check print and mail services may be an Affiliate of
FDR. At Customer's option, reconciliation services and an Official Check
product may be provided through a separate agreement between Customer and
Integrated Payment Systems (IPS), an Affiliate of FDR. Reconciliation
services include payment of cashed items, reconciling issueds to paids,
. researching and processing exception items, processing stop payments,
storage and retrieval of paid items. Official Checks are centralized
teller checks that receive next-day availability. If such services are
obtained through contract with IPS, third-party print and mail services
also will be provided through the IPS contract. FDR shall not be
responsible for nonperformance, negligent performance or default by IPS
or its third-party vendor under such separate written agreement, or for
providing such services in the event the agreement with IPS expires or is
terminated.
7340 Balance Each balance transfer check included in a file which is transmitted to a .700/check
Consolidation third party vendor for printing and mailing.
Check Data File
Creation/
Transmission
6611 Batch Each inquiry processed for Merchants of Customer and sent to FDR .0245/inquiry
Authorization via magnetic tape, tape to tape transmission or remote job entry (RJE)
Inquiry transmission from Customer or Customer's Merchant.
0207 Batch Header - Each summarization of Merchant Tickets deposited by Customer's .0325/header
CRT Entry Merchant or by Customer ("Batch Header"), and entered remotely from
Customer's terminal(s) by Customer or a third party acting on Customer's
behalf.
0201/ Batch Header - Each summarization of Merchant Tickets deposited by the Merchant, .1500/header
0202 Manual Entry or by Customer, and entered by FDR via hardcopy received from
Customer.
0208 Batch Header - Each summarization of Merchant Tickets deposited by Customer's .0325/header
Tape Entry Merchant or by Customer ("Batch Header"), and transmitted
electronically to FDR via magnetic tape or tape transmission from
Customer or a third party acting on Customer's behalf.
Exh. A -15
7936 Card Activation - Each update of Customer's Cardholder masterfile information in .1750/account
Account connection with the activation of the Cardholder Account by the
Information Cardholder.
Update
7923 Card Activation - Each automatic initiation of an on-line transaction in conjunction with .4046/transaction
ANI Call-FDR an Automatic Number Identification (ANI) process via an audio
response unit (ARU), changing the status of a Cardholder Account
associated with certain newly issued or reissued plastics
(as determined by Customer), from "inactive" (under certain parameters)
to "active" for transaction authorization purposes.
2868 Card Activation Each initiation of an on-line transaction by the confirmation of .5432/transaction
-ARU Call-FDR Customer requested data captured from Customer's Cardholder, via an
audio response unit (ARU), changing the status of a Cardholder Account
associated with certain newly issued or reissued plastics (as determined
by Customer), from "inactive" (under certain parameters) to "active" for
transaction authorization purposes.
2870 Card Activation - Each entry of an on-line transaction by Customer to change the status .0450/transaction
Customer of a Cardholder Account associated with certain newly issued or
Processed reissued plastics (as determined by Customer), from "inactive" (under
certain parameters) to "active" for transaction authorization purposes.
2869 Card Activation - Each entry of an on-line transaction by FDR, on behalf of Customer, in 1.3315/transaction
Voice Call-FDR conjunction with the confirmation of Customer requested data obtained
from the Customer's Cardholder via a voice call, changing the status
of a Cardholder Account associated with certain newly issued or reissued
plastics (as determined by Customer), from "inactive" (under certain
parameters) to "active" for transaction authorization purposes.
0506 Cardholder Each account of a Cardholder of Customer (including but not limited to .0400/account per
Account on File charged off, authorization only and debit accounts) that remains on month
Customer's master file at FDR on the last processing day of the
calendar month as defined on the CD-121 Ledger Activity Report or the
equivalent report.
0218 Cardholder Annual The fee assessed yearly to a Cardholder in connection with a .0280/account
Charge Cardholder Account of Customer.
6622/ Cardholder Each instance in which the Cardholder records of Customer are .0112/inquiry
6625/ Authorization accessed for an authorization
6628 Inquiry
7020/ Cardholder FDR shall: (i) research Cardholder exception transactions on revoked, 3500/transaction plus
7027 Exception closed and charged-off accounts; (ii) initiate chargebacks in 6% of chargeback
Research accordance with MasterCard and VISA rules and regulations; (iii) funds
recover by FDR handle chargeback representments on reversed chargebacks,
when notified by Customer; and (iv) deliver good faith letters to
Merchant banks where applicable.
2742 Cardholder Customer shall contract with a third party for certain Personal .0500/account
Selected PIN Identification Number (PIN) services in connection with the downloaded
Service authorization of a Cardholder Account. FDR shall download certain
Downloaded Cardholder Accounts of Customer onto a tape to be sent to such a third
Account party.
7262 Cardholder Each transaction generated in connection with a Cardholder Account of .0525/transaction
Selected PIN Customer for which Customer enters an on-line transaction into the
(SMR/SMC) FDR System from a Solicitation Mailer Response (SMR) screen or
Transaction Solicitation Mailer call (SMC) through Customer's ARU system, to
generate a Personal Identification Number (PIN) which has been selected
by the Cardholder in connection with the Cardholder Account.
Exh. A -16
0131/ Cardholder Each periodic summarization of activity (whether printed or otherwise) .1200/statement
0151 Statement associated with a Transaction Card issued by Customer.
n/a CD-ROM Services The storage, on Compact Disc-Read Only Memory ('CD-ROM'), of n/a
statements and reports for purposes of record retention, accessing and
archival purposes. Customer, at its option, may elect to utilize the CD-
ROM Services and/or On-Line Report Services for the same items.
Notwithstanding anything in this Agreement to the contrary, Customer
is responsible for determining the acceptance of the CD-ROM Services
under state and Federal regulations, including but not limited to
obligations to retain information for a specified period of time,
signature verification and the admissibility of documents into evidence.
It is Customer's responsibility to keep records on other media, if such
are required under state and Federal regulations because of the limited
acceptance or admissibility of the CD-ROM Services or the technology
to be used under this Agreement to provide the CD-ROM Services.
Customer shall provide at its expense the minimum personal computer
configuration set forth below:
386/486 Processor with Hard Drive (486 preferred)
8 MB RAM (12 MB preferred)
3.1 Windows
Mouse
14" VGA Color Monitor (SVGA preferred)
CD-ROM Drive (double speed)
Laser Printer
4353 CD-ROM Bundle - An additional copy of a CD-ROM Bundle provided to Customer at $75.00/bundle
Duplicate Customer's request.
4353 CD-ROM Bundle - A CD-ROM Bundle which summarizes previously produced CD-ROM $475.00/bundle
Summary Bundles.
4354 CD-ROM Report Each data page of report information on CD-ROM which is provided .0069/data page
Data Page to Customer or to a party on behalf of Customer.
A CD-ROM Bundle, for purposes of the reports on CD-ROM services,
consists of two (2) copies, one for Customer, and one for
archive.
0000 XX-XXX Each data page of statement information on CD-ROM which is .0069/data page
Statement Data provided to Customer or to a party on behalf of customer.
Page
A CD-ROM Bundle, for purposes of the statements on CD-ROM
services, consists of three (3) copies, one for Customer, one for
archive and one for Customer's customer service representative.
n/a Chargebacks The return of a Ticket and receipt of the amount thereof from an n/a
Issuer n/a to an Acquirer or from an Acquirer to an Issuer as
provided for in the then current MasterCard and VISA rules
and regulations.
6005 Chargeback - A Chargeback where Customer initiates the Chargeback to an Acquirer 2.4899/chargeback
Outgoing in connection with a Ticket transacted by a Cardholder of Customer or
(Customer where Customer returns a Chargeback to an Issuer. The Chargeback is
Entered) processed by Customer.
6004 Chargeback - A Chargeback where Customer initiates the Chargeback to an Acquirer 4.6690/chargeback
Outgoing (FDR in connection with a Ticket transacted by a Cardholder of Customer or
Entered) where Customer returns a Chargeback to an Issuer. The Chargeback is
processed by FDR.
Exh. A -17
5998 Chargeback - A Chargeback where the Issuer initiates a Chargeback to Customer in 1.500/chargeback
Incoming (Direct connection with a Ticket transacted by the Issuer's Cardholder or
Sell) where an Acquirer returns a Chargeback to Customer. A Direct Sell
Chargeback is an Incoming Chargeback which is sent directly to
Customer the same day FDR receives it for processing.
5995 Chargeback - A Chargeback where the Issuer initiates a Chargeback to Customer in 6.500/chargeback
Incoming (Manual connection with a Ticket transacted by the Issuer's Cardholder or
Entry) where an Acquirer returns a Chargeback to Customer. A Manual
Chargeback is one which is processed manually by FDR.
n/a CIMS FDR's Customer Inquiry Management System (CIMS) is an on-line n/a
system which provides the means to log, assign and track Customer
Inquiries. Under CIMS, a Customer Inquiry shall mean a request for
information received from a customer of Customer either by mail,
phone, walk-in or some other medium. A Workcase is the basic work
unit within CIMS; it represents a Customer Inquiry. Workcase Option
with Variables ("WOV") Services shall also be available under CIMS
at Customer's option.
7234 CIMS Log-Only Each Workcase that is entered into CIMS by Customer for internal .0458/workcase
Workcase reporting purposes only; no follow-up is required by Customer's
personnel.
7232 CIMS Regular Each Workcase that, for whatever reason, requires review, task .1256/workcase
Workcase completion and/or follow-up by Customer's personnel in order to
resolve a Customer Inquiry.
The average number of CIMS Regular Workcases for a month is
calculated by adding together the ending number of Regular
Workcases of month 'a' after purge plus the ending number of
Regular Workcases of the subsequent month (month'b') before
purge and then dividing the total number by 2. This calculation
will equal the averagenumber of Regular workcases processed on
the system for month 'b'.
7255 CIMS Regular Each (i) task which is performed in the resolution of a Regular .0198/item
Workcase Action Workcase or (ii) brief communication that contains directive, advisory
or informative matter stored within an Action Workcase that is entered by
Customer's personnel.
7233 CIMS WOV Each optional Workcase that sends variable information to a file for .1256/workcase
Workcase downloading to Customer. Actions may be used to establish the
specific grouping of variables that will be downloaded to Customer.
n/a CIS FDR's Customer Inquiry System (CIS) is an on-line system for storing n/a
and accessing Statement, Detail or Memo information regarding a
Cardholder Account.
2811 CIS Automated Each automatic, on-line completed adjustment or reversal of monetary .0470/adjustment
Adjustment/ detail items such as late fees, overlimit fees, item charges, finance
Approval charges, charge-off transactions and credit adjustments within
Customer Inquiry System.
n/a CIS Detail Each item of information regarding transactions that have posted or n/a
will post to a Cardholder Statement such as charges, payments, credits
and authorizations not aged off the Cardholder's file, Cardholder
payment history, and real-time authorizations.
Exh. A -18
0770 CIS Detail-Other Each CIS Detail other than those specifically defined herein. .0006/detail stored
per month
2413 CIS Detail- Each CIS Detail regarding a Cardholder's payment history. .0005/detail stored
Payment History per month
2737 CIS Detail- Each CIS Detail regarding a CDA transactions which allow research .0005/detail stored
Realtime on declined authorizations and for determining pay-off balances on a per month
Authorization Cardholder Account.
5464 CIS Extended An enhancement to the standard CIS Services which provides access to .0015/statement
Service Customer Inquiry System during hours of the week in which the CIS is stored
not otherwise available for access.
0700 CIS Inquiry Each transaction accessing the Statement, Detail or Memo information .0175/transaction
in the FDR System regarding a Cardholder Account.
0780 CIS Memo Each summary item, not individually exceeding 65 positions, that is .0005/memo stored
stored with the Customer's Cardholder Account information and is per month
accessible by Customer via Customer's CRT terminals.
0760 CIS Statement Each set of statement information regarding Customer's Cardholder .0015/statement
Accounts that is stored on the FDR system and accessible by Customer stored per month
via Customer's CRT terminals. CIS Statement information includes
the information set forth on a Cardholder Statement such as, but not
limited to, the name, address, account number, statement date, payment
date, cycle days, annual percentage rates, and monthly periodic rates.
2814 CIS Transaction A reprint of information from a CIS Statement currently stored on-line .3600/register
Register which reprint is delivered to a Cardholder of Customer at Customer's
request.
n/a Client-Defined Product by which Customer may design its display screens for n/a
Screens (CDS) presentation of on-line material using multiple screen options based
upon its needs.
5402 Client-Defined Each CDS Screen developed by Customer for general use. $65.00/screen
Screens - Screen
Set-Up
5403 Client-Defined Each change made by Customer to an existing CDS Screen. $50.00/screen
Screens - Screen
Revision
2710/ Client-Defined Each on-line transaction entered by Customer using a CDS Screen. .0030/transaction
2726 Screens - This charge is in addition to any other applicable monetary, non-
Transaction monetary or on-line transaction charge which may apply with respect
to the transaction type.
3534 Commercial A list of vendors for which Cardholders utilizing a Customer issued .0780/average number
Vendor List Commercial Card may present the Commercial Card for payment. of vendors on file
per month
2744 Common The fee associated with the point-of-sale authorization of a transaction .0112/inquiry
Authorization to an account of Customer by a third party where notice of such
authorization is delivered to FDR via a transmission medium from the
third party.
Exh. A -19
2813 Company Card The preparation of each set of reports prepared for mailing in the USPS .3300/set of reports
Service Mail to a company designated by Customer in connection with those
Preparation services provided by FDR in order to support commercial card
accounts of Customer. For purposes of this Agreement, a set of reports
shall mean all reports of a single company which are placed in a single
envelope for mailing.
2820 Convenience Periodic downloading and transmission of Cardholder account data to a .0500/account
Check third party vendor selected by Customer for the production of
convenience checks.
6607 CPU Authorization Each authorization inquiry received in FDR protocol via a computer to .0245/inquiry
Inquiry computer (CPU-to-CPU) interface between FDR's computer and the
computer of Customer or Customer's Merchant.
6612 CPU Authorization Each CPU Authorization Inquiry where the Cardholder's Personal .0245/inquiry
Inquiry With PIN Identification Number (PIN) is verified during the authorization
Verification process.
6610 CPU Leased Line Each computer to computer authorization inquiry received from a .0245/inquiry
Authorization Merchant of Customer via a leased line.
Inquiry
6615 CPU Remote Local Each computer to computer authorization inquiry received from a .0245/inquiry
Authorization Merchant of Customer via a CRT.
Inquiry
2821 Credit Balance Periodic downloading and transmission of Cardholder account data to a .0500/account
Refund Check third party vendor selected by Customer for the production of credit
balance refund checks.
7278 Custom Fee Each fee assessed to a Cardholder Account of Customer in connection Quote/fee assessed
Processing - Fee with FDR's Custom Fee Processing system, whereby Customer is able
Charged to set up and run multiple fee programs at the Cardholder level,
controlling the amount, timing and communication intervals of fees
to be charged to the Cardholder for various programs such as service
fees, product enrollment fees, purchase fees, special plastic fees
and group/ organization recurring dues or purchases.
Daily Rewards The product by which rewards from Customer's rewards program(s) Quote/Cardholder
Calculation which are due a Cardholder are calculated and made available on a Account per day with
daily basis to the Cardholder Account. The service is billed on the activity
basis of which Cardholder Accounts had a reward(s) earned on a
particular day.
0147 Delinquency A brief notification to a Cardholder of Customer prepared by FDR's .0450/notice
Notice computer at the request of Customer based upon Customer's Product
Control File or a CRT entry request made by an employee of Customer
which addresses a delinquency with respect to the account.
2553 Delinquency An alternative form to the delinquency notice, which form notifies a .0450/statement
Statement Cardholder of Customer of a past-due amount.
0155 Dual Cardholder A Cardholder Statement which includes information on both .1040/statement
Statement MasterCard and VISA account activity.
2819 EAPS Credit Each application which is automatically scored for credit worthiness .1000/application
Scored Account according to Customer selected parameters.
Exh. A -20
n/a Emergency Services performed by FDR on behalf of Customer for a Cardholder of n/a
Services Customer. FDR shall perform emergency cash authorization services
and, when authorized by Customer, coordinate the creation and
delivery of replacement card(s).
2776/ Emergency Service Each monthly Cardholder Account on File which is entitled to receive .0026/Cardholder
7019 - File Processing Emergency Service. Account on File per
month
2775/ Emergency Service Each Cardholder Account on File which is loaded to the FDR System Quote/Cardholder
7018 - One-Time Start- in connection with the Emergency Service. Account on File
Up Fee
7243 Enhanced Annual Each Cardholder Annual Activity Summary (as defined herein) which
Summary utilizes Enterprise Presentation style statement printing features.
Customer may elect to use either a standard or customized format.
Additional charges will apply for the creation of any logos or personalized
letters in excess of one (1), and if Customer elects to utilize customized
Enhanced Annual Summaries.
.8000**
0 - 10,000 .7500
10,001 - 50,000 .7000
50,001 - 100,000 .6500
100,001 - 250,000 .6000
250,001 - over /summary
n/a Enterprise Each Cardholder Statement produced by FDR on behalf of Customer n/a
Presentation utilizing the Enterprise Presentation feature. Enterprise Presentation is
Cardholder the system which allows Customer the flexibility to electronically
Statement arrange the statement form (including payment coupon placement),
create and place logos and graphics and select from numerous font types and
sizes on the Cardholder Statement. Customer understands and agrees that
Enterprise Presentation Cardholder Statement data may only be stored for
archival use on CD-ROM.
7197 Enterprise Each first physical page of an Enterprise Presentation Cardholder .0300/first page
Presentation CH Statement which is printed in duplex mode.
Statement-Duplex
First Page
7199 Enterprise Each physical page after the first physical page of an Enterprise .0300/page
Presentation CH Presentation Cardholder Statement which is printed in duplex mode,
Statement-Duplex excluding any U$AVE offer page (if applicable).
Subsequent Page
7196 Enterprise Each first printed page of an Enterprise Presentation Cardholder .0300/first page
Presentation CH Statement which is printed in simplex mode.
Statement-Simplex
First Page
7198 Enterprise Each printed page after the first page of an Enterprise Presentation .0300/page
Presentation CH Cardholder Statement which is printed in simplex mode, excluding any
Statement-Simplex U$AVE offer page (if applicable).
Subsequent Page
Exh. A -21
0280 ETC Batch Header Each electronic summarization of ETC Ticket transactions deposited .0325/header
by Customer or Customer's Merchant and delivered to FDR.
0260 ETC Confirmation Each daily report prepared by FDR for use by Merchant of Customer .2000/letter
to confirm all Ticket transactions received from Customer's Merchant
and processed the previous day via Electronic Ticket Capture (ETC) or
tape. Service includes any preparation required for delivery. ETC is
FDR's proprietary product for electronic data capture at the point of
sale.
2573 ETC Deposit Each weekly report sent to a Merchant of Customer confirming each .5000/summary
Summary deposit made during the week by such Merchant. Service includes any
preparation required for delivery.
0262 ETC Headquarters Each daily or weekly report sent to a headquarters' location of a .1200/report
Report Merchant of Customer's, which contains ETC or tape transaction
information for its individual Merchant location(s). Service includes
any preparation required for delivery.
0270 ETC Ticket Each Electronic Ticket Capture (ETC) sales slip, cash advance slip or .0325/item
returned merchandise slip from a Merchant of Customer that is
captured by means of an electronic process and forwarded to FDR for
processing and reporting.
2480 ETC Ticket - Each paper copy of an ETC Ticket received from an ETC Ticket or .0200/item
Storage tape Merchant of Customer and stored by FDR. In no event shall FDR
be responsible for Tickets not received in any batch from a Merchant
of Customer.
7026 Excessive Each Cardholder Account of Customer for which FDR performs an .5538/account
Transaction examination of data in connection with the excessive use of the
Monitoring Transaction Card. FDR shall review all items that qualify as
excessive, and examine activity on previous statements, a Cardholder's
normal spending habits and payment history.
7031 Excessive Each Cardholder Account of Customer for which FDR personnel, in 6.0408/account
Transaction connection with Excessive Transaction Monitoring, research and verify
Research transactions warranting further review, and if fraud is involved, the
account will be statused.
0675 FDR Entered New Each Cardholder new account transaction which is entered by FDR .2500/transaction
Account personnel.
Transaction
0670/ FDR Entered Non- Each Cardholder non-monetary transaction which is entered by FDR .1268/transaction
0137 Monetary personnel.
Transaction
4320 FDR LinkUp The one-time set-up charges associated with each mailbox utilized by $100.00/mailbox
Service - Set-Up Customer to receive and send electronic mail from and to FDR.
Fee
4321 FDR LinkUp The monthly charges associated with maintaining each mailbox $15.00/mailbox per
Service - Service utilized by Customer to receive and send electronic mail from and to month
Fee FDR.
Exh. A -22
0144 First Activity A brief notification to a Cardholder of Customer prepared by FDR's .0450/notice
Notice computer at the request of Customer based upon Customer's Product
Control File or a CRT entry request made by an employee of Customer
which addresses the first use of the new account.
0604 First Class Mail - Each Delinquency Notice which is prepared by FDR for delivery to the .0850/notice
Delinquency USPS for mailing.
Notice
2666 First Class Mail - Each Delinquency Statement which is prepared by FDR for delivery to .0850/notice
Delinquency the USPS for mailing.
Statement
0605 First Class Mail - Each ETC Confirmation Letter which is prepared by FDR for delivery .0850/letter
ETC Confirmation to the USPS for mailing.
Letter
0603 First Class Mail - Each First Activity Notice which is prepared by FDR for delivery to .0850/notice
First Activity the USPS for mailing.
Notice
2746 First Class Mail - Each Merchant Statement which is prepared by FDR for delivery to the .0850/statement
Merchant United States Postal Service ("USPS") for mailing.
Statement
0149 First Class Mail - Each item other than those specifically defined herein. .0850/item
Other
0601 First Class Mail - Each Cardholder Statement which is prepared by FDR for delivery to .1000/statement
Cardholder the United States Postal Service ("USPS") for mailing.
Statement
n/a Fraud Detail The FDR on-line system which provides Customer with the ability to: N/a
Screen Services (i) track fraudulent Transaction Card activity using certain on-line
screens, (ii) make on-line entries which generate adjustments,
retrievals, chargebacks and affidavits, and (iii) have certain
transactions automatically charged back (including but not limited
to the non-receipt of a requested item from an Acquirer) by the FDR System.
2777 Fraud Detail Each transaction (2 transactions are required in order to generate a .5486/transaction
Screen Transaction single adjustment) entered on-line using FDR's Fraud Detail Screens in
- Adjustment order to generate an adjustment to an account.
2755 Fraud Detail Each transaction entered on-line using FDR's Fraud Detail Screens in 2.7433/transaction
Screen Transaction order to generate an affidavit regarding an account.
- Affidavit
2782 Fraud Detail Each transaction entered on-line using FDR's Fraud Detail Screens in 1.3715/transaction
Screen Transaction order to generate a Chargeback.
- Chargeback
2781 Fraud Detail Each transaction entered on-line using FDR's Fraud Detail Screens in .8228/transaction
Screen Transaction order to generate a Retrieval.
- Retrieval
Exh. A -23
7982 Fraud Any Cardholder Account routed to the FDR Fraud Detection 2.0521/actioned
Management/ WorkCenter queue group and called using a manual dialing process account
Fraud Detection that results in any one or more of the following activities in a single
(Falcon) Services - 48-hour period: outgoing/incoming Cardholder phone calls with a
Call Processing - maximum of 4 attempts within any single 48-hour period, CIS Memos,
Manual Review/ Letter generation or account statusing.
Dialing)
7980 Fraud Any account routed to the FDR Fraud Detection WorkCenter queue 2.0521/actioned
Management/ group and called using a predictive dialer which results in any one or account
Fraud Detection more of the following activities in a single 48-hour period:
(Falcon) Services - outgoing/incoming Cardholder phone calls with a maximum of 4
Call Processing - attempts within any single 48-hour period, CIS Memos, Letter
Predictive Dialer, generation or account statusing.
Domestic)
7919 Fraud Each Cardholder Account processed through the Falcon system
Management/ which Account had a balance or any monetary posting
Fraud Detection for the month billed, as determined by FDR for Customer.
(Falcon) Services -
Monthly Gross Number of Monthly Gross Active Credit Card
Active Credit Card Accounts For The Month
Account 0 - 599,999 .0526**
600,000 - 999,999 .0479
1,000,000 - 1,999,999 .0459
2,000,000 - 2,999,999 .0439
3,000,000 - 4,999,999 .0419
5,000,000 - over .0409
/gross active account
on file per month
0512 Fraud Research FDR's security department provides the following functions for .0550/Lost or Stolen
and Investigation Customer's Lost or Stolen accounts: (i) Lost/Stolen account research, Report
Services (ii) Cardholder interviews, (iii) adjustments, (iv) chargebacks, (v)
retrievals, and (vi) fraud and counterfeit reporting. In addition,
FDR's security department provides investigation of fraudulent
activity regarding a Cardholder Accounts of Customer by means of FDR's
nationwide investigative network. This service is billed on a per
Lost or Stolen Report basis.
7947 Fraud Return Each record of a fraudulent Cardholder Account of Customer which is .0600/record
Records in FAR rejected and returned by MasterCard; such accounts are placed in the
Queue FDR Fraud Account Returns ("FAR") queue for review and disposition
by Customer.
Greater Than Six The FDR product by which each Cardholder of Customer is allowed up Quote/Cardholder
Rewards to fifty (50) rewards programs attached to their Cardholder Account. program in excess
Functionality Customer is billed for every rewards program attached to a Cardholder of 6
Account in excess of six (6). Customer also has the ability to have
one rewards ID drive to 200 rewards programs.
Exh. A -24
n/a Hot Call An authorization request from a Merchant on a lost, stolen or credit
problem account. Hot Calls on a Voice or ARU Inquiry are N/a
automatically transferred; POS or CPU Inquiries require a second
Merchant call.
7004 Hot Call - Card Each Hot Call where the Cardholder Account is statused as credit
Pickup related. FDR will instruct the Merchant to pick up the card. 6.4120/call
7021 Hot Call - Code 10 Each Positive ID Check or other Hot Call in which the use of the 13.8934/call
Transaction Card is suspected of being fraudulent or counterfeit.
7013 Hot Call - Positive Each Hot Call where an authorization attempt exceeds Customer's 3.2058/call
ID Check predetermined parameters. The presenter of Customer's card is
checked for positive ID and the card is checked for counterfeiting.
Positive ID checks can be initiated for: (i) excessive activity
(number of transactions and/or dollar amount) per account per day,
(ii) first use of a new or reissued card exceeding a specified amount,
and/or (iii) excessive dollar amount for a single purchase as
specified by Customer.
7003 Hot Call - Each Hot Call where the Cardholder Account is statused Lost or 13.8934/call
Lost/Stolen Stolen. FDR will instruct the Merchant to pick up the card and, at
Customer's option based upon predefined criteria, FDR shall investigate
and dispatch the police to the Merchant location.
n/a ICS (Issuer's The system whereby FDR processes and submits to the Issuer's N/a
Clearinghouse Clearinghouse Service (ICS), on behalf of Customer, information
Services) concerning potential and existing Cardholders in accordance with the
operating regulations of MasterCard and VISA. Anything in this Agreement
to the contrary notwithstanding, it is understood and agreed that FDR's
sole responsibility under the ICS services is to provide electronic data
processing services to Customer in connection with Customer's use of the
ICS. FDR shall not be responsible for and assumes no responsibility for: (i)
any damages, losses or liabilities whatsoever arising out of the use by
Customer of the ICS data bases, including any liability or obligation of
Customer arising out of or related to its compliance with the Fair Credit
Reporting Act or any other applicable federal, state or local law or ordinance;
(ii) the accuracy of any information supplied by Customer to the ICS
or for any verification of such information based upon reports provided to
Customer through the ICS; and (iii) Customer's compliance with the operating
regulations of MasterCardand VISA with respect to the ICS service.
IN ADDITION, Customer UNDERSTANDS THAT FDR DISCLAIMS ALL
WARRANTIES WITH RESPECT TO THE USE AND OPERATIONOF THE
ICS, BOTH EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE.
2581 ICS - On-Line An inquiry into FDR's ICS on-line files utilizing FDR's ICS on-line .0150/transaction
Transaction transactions by an employee of Customer via Customer's CRT
terminals.
Exh. A -25
2574/ ICS - Transmission The transmission to MasterCard and VISA of selected information of .0050/account
2575/ Load each Cardholder of Customer which either: (i) has applied for a
2576/ MasterCard or VISA Transaction Card; or (ii) has experienced
2577/ unauthorized usage of its MasterCard or VISA Transaction Card, all in
2578/ accordance with the operating regulations of MasterCard and VISA.
2579/
2580
0101/ Incoming Each Ticket (sales slip, cash advance slip or returned merchandise slip) .0200/item
0115 Interchange Ticket transacted by Customer's Cardholders at any Merchant with a BIN,
ICA or other Transaction Card system identification number other than
the number to which the Cardholder is signed.
InfoSight Services FDR agrees to update, on a monthly basis, certain selected fields of the
master files of Customer, and to provide Customer with certain master
file data warehousing, historical retention and related services in
connection with Customer's Cardholder Accounts. Such files may be
selected at the system and/or system principal level of the FDR
System. InfoSight Services allow Customer to (i) collect and access
current and historical master file data and to integrate such data with
external data such as demographic/household data, (ii) segment
portfolios and perform precision targeting of individual Cardholders
and segments, (iii) plan, execute and evaluate multiple, frequent
marketing programs and (iv) other promotional related services. FDR
agrees to provide Customer with dial-up access to such files each
business day of the week. The hours of access during such business
days shall be 7:00 a.m. to 7:00 p.m. Central Time Zone. FDR agrees
to provide customer service support to Customer in its use of such
services provided by FDR. The amount and type of customer service
support shall be that which FDR determines is reasonably necessary in
its exercise of good faith business judgment. FDR shall, at Customer's
request, provide training, consulting, computer programming and other
services in connection with the InfoSight Services at FDR's then
current standard rates for such training, consulting and computer
programming, as such rates are quoted to Customer by FDR upon request.
Cardholder Program:
-------------------
Quote
-Initial Start-Up
5600 -Monthly On-Line Access Per Table ($500 minimum per month)* .0210/account
First 100,000 accounts .0125/account
100,001 - 500,000 accounts .0057/account
Additional accounts beyond 500,000
5612 -Monthly Update of File Per Table ($2,850 .0120/account
maximum per month)* 700.00 plus .0035/
80,000 and fewer accounts account
Over 80,000 accounts
Exh. A - 26
Merchant Program:
-----------------
-Initial Start-Up Quote
5603 -Monthly On-Line Access Per Table* 300 plus .0270/
account
5602 -Monthly Update of File Per Table ($75 minimum per month)* .0100/account
STATS:
------
5613 -Initial Start-Up Quote
5614 -Monthly On-Line Access ($25.00 minimum per month)** 25.00/megabyte
-Monthly File Load 120.00
Product Control File:
---------------------
-Initial Start-Up Quote
5604 -Monthly On-Line Access 100.00 plus 15.00/
100 agents
5604 -Monthly File Load 400.00
*Subject to thirty percent (30%) discount during the Term of this
Agreement.
**Based upon actual amount of disk space used. Size approximations
are available upon request.
5617 InfoSight Services The retention of historical masterfile and transaction data at detail level Quote
- Historical on non-disk media.
Retention
3025 Insert Any advertising or other item of information not contained on a .0104/insert
Cardholder Statement, which item is mailed along with the Cardholder
Statement; inserts required by state or federal law do not apply.
5397/ Interface Services - Each receipt of data by FDR from Customer or a third party designated $25.00/tape
5399/ Magnetic Tape by Customer or each forwarding of data to Customer or a third party
5400/ Handling designated by Customer from FDR via mailed or courier delivered
5401 magnetic media including, but not limited to, diskettes and magnetic
tapes.
5086/ Interface Services - Each transmission to, or receipt by, FDR of Customer's data via a 4.800/transmission
5088/ RJE/NDM central processing unit to central processing unit transmission using
5090/ Remote Job Entry or Network Data Mover (RJE or NDM).
5091
5095/ Interface Services - Each transmission to, or receipt by, FDR of Customer's data via a $12.00/transmission
5097/ Tape to Tape central processing unit to central processing unit transmission using a
5098/ tape to tape interface.
5099/
0000
Xxx. A - 27
5412 IRS Home Equity Each Internal Revenue Service (IRS) Form 1098 prepared by FDR's 1.2500/form
Form (1098) computer, in accordance with the Customer's Product Control File
settings or terminal entry made by Customer, printed and mailed to
Customer's Cardholder. Service includes creation of a tape for
Customer's reporting of Cardholder information to the IRS.
2771 Letter Each letter prepared by FDR's computer, in accordance with .1437/letter
Customer's Product Control File settings or CRT entry requests made
by employees of Customer. Each such Letter shall have on-line
composition and editorial features and options including signatures,
logos, multiple type faces and additional page letter generation.
Service includes any preparation required for delivery.
2773 Letter - Additional Each printed output on the reverse side of a Letter (duplex printing) or .0850/printed page
Page each side of each sheet of 8 1/2" by 11" 24 lb. bond stock
accompanying a Letter.
2849 Letter - Certified Each Letter, with or without Letter Insert, which is handled separately 1.500/letter
Mail Handling from Customer's first class mailings to provide certified delivery of
said item. This does not include postage.
2772 Letter - Duplex Each Letter for which printing is made on the back of the initial page .0850/letter
Printing and any additional pages.
2860 Letter - Group Each individual or set of Letters prepared by FDR's computer, in .0850/item
Samples accordance with Customer's Product Control File settings or CRT entry
requests made by employees of Customer, which is printed and mailed to
Customer in a draft format for Customer's review and approval.
5323 Letter - Insert Each inserting of advertising or other item of information .0157/insert
not contained on a Letter, including but not limited to generic reply
envelopes, into a windowed envelope containing a Letter.
2848 Letter - Each Letter which is provided with a perforation for detachment. .0300/letter
Perforations
2774 Letter - Priority Each Letter, with or without Letter Insert, which is handled separately .1063/letter
Mailing from Customer's first class mailings to provide next day delivery of
said item.
5321/ Letter - Set-up, Each addition, deletion or change, performed by FDR on behalf of $32.50/half hour
5322/ Revision or Customer, of a Customer's Letter format or inputs including but not
5324 Deletion limited to digitized signatures and logos of Customer.
0293 Lost or Stolen Each report of a lost or stolen Transaction Card from the Cardholder of 6.4120/report
Report - FDR Customer which is processed by FDR's Fraud Management Voice
Entered Operations. Reports entered on-line immediately change the external
status and block authorization requests on the Cardholder Account.
Service includes lost/stolen reports received via collect call,
telegram and telex.
5778 MASS Set-Up/ The initial Merchant Analysis Support System ("MASS") product set- $500.00/set-up or
Modification up or each modification to the initial set-up requested by Customer. In modification
addition to the fee for MASS Set-Up/Modification, Customer will also pay
FDR at FDR's then current standard rates for any onsite training performed
by FDR on behalf of Customer in connection with the MASS service.
5779 MASS Monthly The monthly delivery of the MASS software to Customer as otherwise $1500.00/database
Creation described in this Agreement. With respect to the billing of the
monthly creation charge per database, a database shall mean a datafile
containing Mass-specific data for each Merchant within the system/prin
combination(s) selected by Customer. Two databases otherwise containing
the same information but with different system/prin combinations would
count as two databases.
Exh. A - 28
5782 MASS Duplicate The charge for duplicate or replacement copies of a MASS database. $75.00/additional
Copy This applies if Customer wants multiple copies of the same database or copy
a replacement for a database previously created.
5710 Mastercom CSD - Each page of Chargeback documentation received by FDR from a 2.000/page
Receiving MasterCard member through the Mastercom CSD service on behalf of
Customer.
5709 Mastercom CSD - Each Chargeback record which is sent from FDR through the 3.290/chargeback
Sending Mastercom chargeback support documentation ("CSD") service on
behalf of Customer.
5711 Mastercom Image Each message image sent to a MasterCard member through the 2.000/message image
Mail Mastercom CDS service.
n/a Mastercom/VISA The Mastercom/VISA RFC workstation, modem, scanner and n/a
Request For Copy proprietary system developed by MasterCard/VISA to enable the
("RFC") System storage and transfer of documents as electronic images for retrieval
purposes.
1570 Mastercom/VISA Following receipt by FDR of a request on the Mastercom/VISA RFC 3.300/retrieval
RFC Acquirer System for a facsimile of a Ticket previously acquired by Customer
External Retrieval and stored away from FDR's premises, FDR will (a) mail a request to
the custodian of the Ticket and (b) utilizing a Mastercom/VISA RFC
workstation located at FDR's premises forward an image of such Ticket
to the requesting party.
1571 Mastercom/VISA Following receipt by FDR of a request on the Mastercom/VISA RFC 3.300/retrieval
RFC Acquirer System for a facsimile of a Ticket previously acquired by Customer
Internal Retrieval and stored at FDR, FDR will retrieve the Ticket or a facsimile thereof
and forward an image of such Ticket to the requesting party utilizing
a Mastercom/VISA RFC workstation located at FDR's premises.
1572 Mastercom/VISA FDR will (a) receive, via a Mastercom/VISA RFC workstation located 3.300/retrieval
RFC Issuer at FDR's premises, a copy of a Ticket image previously requested from
Retrieval an Acquirer by Customer or a notification from MasterCard/VISA that
the Acquirer has failed to return a Ticket image within the time period
permitted by MasterCard/VISA rules, (b) mail a copy of the Ticket image
or notification to Customer and (c) transmit Customer's acceptance or
rejection of each Ticket to MasterCard/VISA following receipt of Customer's
written instructions on acceptance or rejection of such Ticket.
Exh. A - 29
2874 Merchant 12B A letter sent directly to a Merchant of Customer requesting a Retrieval. .7500/letter
Letter
0504 Merchant Account Each account of a Merchant of Customer that remains on Customer's .5000/account on file
on File masterfile at FDR on the last processing day of the calendar month as per month
defined on the MM-101 Merchant Profitability report or an equivalent.
0209 Merchant Advice Monthly tape indicating Automated Clearing House (ACH) discount $62.50/tape
of Charge (ACH) amounts with respect to a Merchant of Customer.
Tape
2842 Merchant The on-line storage of summaries for pending Incoming Chargebacks .0500/chargeback
Chargeback posted to Merchant Accounts for access by employees of Customer. stored per month
Summary Screen
5420 Merchant Each Letter to a Merchant of Customer prepared by FDR's computer at .1800/letter
Computer Letter the request of Customer based upon Customer's Product Control File or
CRT entry requests made by employees of Customer. Each such Letter shall
have on-line composition and editorial features and the option of multiple
page letter generation. This service includes any preparation required for
delivery.
5422 Merchant Each printed output on the reverse side of a Merchant Computer Letter .0800/page
Computer Letter - (duplex printing) or each side of each sheet of 8 1/2" by 11" 24 lb.
Additional Page bond stock accompanying a Merchant Computer Letter.
5425 Merchant Each Merchant Computer Letter, with or without Merchant Letter Quote/item
Computer Letter - Insert, which is handled separately from Customer's first class mailings
Certified Mail to provide certified delivery of said item. This does not include
Handling postage.
5424 Merchant Each individual or set of Merchant Computer Letters prepared by Quote /item
Computer Letter - FDR's computer, in accordance with Customer's Product Control File
Group Samples settings or CRT entry requests made by employees of Customer, which
is printed and mailed to Customer in a draft format for Customer's
review and approval.
5421 Merchant Each inserting of advertising or other item of information not contained .0150/insert
Computer Letter - on a Merchant Computer Letter, including but not limited to generic
Insert reply envelopes, into a windowed envelope containing a Merchant
Computer Letter.
5426 Merchant The printing of Customer's Merchant Computer Letters on perforated Quote /item
Computer Letter - paper.
Perforations
5423 Merchant Each Merchant Computer Letter, with or without Merchant Letter Insert Quote /item
Computer Letter - which is handled separately from Customer's first class mailings
Priority Mailing to provide next day delivery of said item.
Exh. A - 30
0259 Merchant Each Merchant which is set up to receive, via electronic transmission, $50.00/merchant
Electronic a file containing daily and weekly Merchant deposit activity
Reporting confirmations and reports.
1414/ Merchant Hot Call Each Hot Call from a Merchant of Customer in connection with a non- 4.3894/call
1415 FDR processed financial institution's Transaction Card for which FDR
takes a Hot Call report.
2533 Merchant Inquiry The accessing of the Merchant or Batch Records contained in the FDR .0255/inquiry
System ("MIS") System regarding a Merchant Account.
Inquiry
2394 Merchant Inquiry The storage of information on a Merchant Account such as but not .0151/merchant record
System ("MIS") limited to the name, address, Merchant number, volumes, processing
Merchant Record control flags and any other information which can be stored for display
Stored and accessed by an Inquiry.
2395 Merchant Inquiry The storage of each month-to-date Merchant batch record for inquiry. .0002/batch record
System ("MIS")
Month-To-Date
Batch Record
Stored
0097 Merchant Inquiry The storage of each Merchant batch record, from months prior to the .0002/batch record
System ("MIS") current month, for inquiry.
Previous Month's
Batch Record
Stored
0160 Merchant Non- Each non-monetary transaction or new account related to Customer's .1500/transaction
Monetary/On-Line Merchant which is entered by FDR on Customer's behalf.
Transaction - FDR
Entered
2843 Merchant Retrieval The on-line storage of summaries for pending Retrieval requests for .0040/retrieval
Summary Screen access by employees of Customer. stored per day
2745 Merchant Each periodic summarization of activity (whether printed or otherwise) .3150/statement
Statement associated with a Merchant Account of Customer. Service includes
any preparation required for delivery.
0073 Merchant Ticket - Each sale slip, cash advance slip or returned merchandise slip .0325/item
CRT Entry ("Ticket") from Customer's Merchant that is transacted by a Cardholder
from any Bank Identification Number (BIN), Interbank Card Association
(ICA) or other Transaction Card system identification number, and
entered remotely from Customer's terminal(s) by Customer or a third party
acting on Customer's behalf.
0084 Merchant Ticket - Each sale slip, cash advance slip or returned merchandise slip .1500/item
Manual Entry ("Ticket") from Customer's Merchant that is transacted by a Cardholder
from any Bank Identification Number (BIN), Interbank Card Association
(ICA) or other Transaction Card system identification number and entered
by FDR on Customer's behalf.
0063 Merchant Ticket - Each sale slip, cash advance slip or returned merchandise slip .0325/item
Tape Entry ("Ticket") from Customer's Merchant that is transacted by a Cardholder
from any Bank Identification Number (BIN), Interbank Card Association (ICA)
or other Transaction Card system identification number, and entered via
magnetic tape or tape transmission to FDR by Customer or a third party
acting on Customer's behalf.
Exh. A - 31
2829 MTT Screen Detail Each Merchant ACH deposit activity record which is stored by FDR .0003/record
Storage for on-line viewing.
7276 National Change of The periodic updating of Customer's Cardholder Account addresses in
Address (NCOA) compliance with United States Postal Service ("USPS") requirements.
System The FDR System will, once every six (6) months, electronically update
the addresses of all of Customer's Cardholder Accounts using
information filed with the USPS and, at Customer's option, either (i)
provide Customer with reports from which Customer may enter the necessary
non-monetary transactions to update Customer's Cardholder master files on
the FDR System, or (ii) automatically generate and enter the necessary
non-monetary transactions to update Customer's Cardholder master files on
the FDR System.
Monthly Volume 3.7500**
0 - 50,000 3.2500
50,001 - 800,000 2.7500
800,001 - 1,000,000 2.2500
1,000,001 - over /1,000 accounts
2832 Non-Receipt CIS The automatic generation of a Customer Inquiry System (CIS) Memo .2500/memo
Memo Line line when an automatic non-receipt Chargeback is generated on behalf
Generation of Customer.
2830 Non-Receipt The deletion of a transaction from FDR's dispute system (in connection .2500/item
Dispute Removal with a Cardholder Account of Customer) as a result of an automated
non-receipt chargeback.
5015 Non-Standard Job Each scheduled daily, weekly or monthly production of a data set on $50.00/data set
Run behalf of Customer that is in addition to the standard data outputs
produced by the FDR System.
7943 NRI Returned Each record of a Cardholder Account of Customer which is sent to .0600/record
Records in Queue MasterCard and VISA as Not Received as Issued (NRI); such accounts
are placed in a queue for review and disposition by Customer.
2743 On-Line Check Re- Periodic downloading and transmission of Cardholder account data to a .0500/account
Order third party vendor selected by Customer for the production of check re-
orders.
2408/ On-Line Credit The transmission by Customer of credit application or existing account .4579/request
2729/ Bureau Report information via video display terminals at Customer's location to any
2730 Request of the supported principal credit bureaus with which Customer has
established a written relationship that is in effect at all times during
the term of this Agreement in order to determine the credit worthiness
of an applicant/account. Anything in this Agreement to the contrary
notwithstanding, in the event that Customer's relationship(s) with all of
the principal credit bureaus supported pursuant to this Agreement should be
terminated at any time during the term of this Agreement, then FDR's
obligation to provide On-Line Credit Bureau Report Requests shall
automatically be terminated, without penalty or financial obligation of any
type or kind to FDR, on the effective date of the termination of Customer's
relationship(s) with such principal credit bureaus.
Exh. A - 32
2756 On-Line Detail The daily, on-line retention of security detail records (monetary items .0100/item per day
Storage posting to a Lost or Stolen Account) from the Security Detail
Transaction ("SDT") File.
2757 On-Line Fraud The daily, on-line retention of security detail records (monetary items .0030/item per day
Total Storage posting to a fraud Account) from the Fraudulent Account Information
("FAI") Screen.
2810 On-Line Telephone The automatic update of a telephone number on Customer's Cardholder .2500/update
Number Update masterfile at FDR which is caused by an update of the same telephone
number via a "SL" transaction in connection with a Lost/Stolen Report.
0099/ On-Line Each entry of information or inquiry into the computer records of .0075/transaction
0135/ Transaction Customer and its Cardholders by an employee of Customer by the use
0136/ of a terminal located at Customer's office or via tape or other method
2036 of transmission.
2823 On-Line Warning The daily, on-line retention of Customer's Cardholder Accounts .0100/account per day
Bulletin Storage contained on the Combined Warning Bulletin File.
7413 Online Access and Each page of Reports Management System (RMS) reports which is .0087/page
Retrieval System stored by FDR for on-line viewing and printing by Customer's
(OARS) Services personnel. Storage of data by FDR shall be for a period of sixty (60)
days. Customer, at its option, may elect to utilize any or all of the
OARS Services and/or CD-ROM Services for the same RMS reports.
Notwithstanding anything in this Agreement to the contrary,
Customer is responsible for determining the acceptance
of the OARS Services and the technology to be used under this
Agreement to provide the OARS Services under state and Federal
regulations, including but not limited to signature verification
and the admissibility of documents into evidence. It is Customer's
responsibility to keep records on other media, if such are
required under state and Federal regulations because of the limited
acceptance or admissibility of the OARS Services or the technology
to be used under this Agreement to provide the OARS Services.
0126 Payment - CRT Posting, from a CRT transmission delivered to FDR by Customer, of a .0090/payment
Entry by Customer transaction to a Cardholder Account of Customer evidencing the
receipt of money from a Cardholder.
0127 Payment - Manual Posting, from a payment stub provided to FDR by Customer, of a .1268/payment
Stub Entry by FDR transaction to a Cardholder Account of Customer evidencing the
receipt of money from a Cardholder.
0125 Payment - Tape Posting, from a tape medium delivered to FDR by Customer, of a .0090/payment
Entry by Customer transaction to a Cardholder Account of Customer evidencing the
receipt of money from a Cardholder.
n/a PC Remote Access Product by which Customer may access the FDR System via a n/a
Service personal computer at Customer's office in order to allow employees of
Customer to perform certain terminal functions, including but not
limited to the accessing of Cardholder or Merchant Account data, the
entry of information concerning Customer's Accounts and the
uploading/downloading of data regarding Customer's Accounts.
Exh. A - 33
7407 PC Remote Access Each minute of access time that Customer's user is connected to the $120.00/user plus the
Minutes PC Remote Access bulletin board system. price below per user
per minute in excess
of 500 minutes per
month
1st 500 minutes $120.00
501 - 750 .2400
751 - 1,250 .2100
1,251 - 1,500 .1900
1,501 - over .1800
PC Remote Access Each instance in which information is uploaded to the FDR System by Quote/upload or
-Upload/Download Customer or made available by FDR for downloading to Customer download
upon cycle completion.
6623/ PIN Verification - Each verification of the Personal Identification Number (PIN) of the .0233/inquiry
6626/ Cardholder Inquiry Cardholder during a Cardholder Authorization Inquiry
6629
2411 PINpoint Inquiry Each transaction selection (more than one selection may be made .3647/inquiry
during a call) made by a Cardholder of Customer which accesses the
Cardholder's account records for selected information by the use of a
touch-tone telephone.
4111/ PlastiCard Agent/ Each instance in which a change is made to any or all of (i) Customer's 4.500/change
4112 Strategy Inserting system level (if system level billing for set-ups is required), (ii)
Set-Up Customer's prin level (if prin level billing for set-ups is required),
(iii) the envelope, (iv) inserts, (v) mail integration, (vi) multi/foreign
flag and/or (vii) mail code in connection with Customer's plastic cards.
4102 PlastiCard Braille Each plastic card for which FDR has embossed Braille characters on $50.00/plastic
Embossing the front of the plastic.
7634 PlastiCard Bulk The separation from the production run of accounts from individual .1600/carrier
Packaging - 5 Digit systems, principals, agents or grouping of zip codes. Includes sorting
Sort to a 5-digit level.
7633 PlastiCard Bulk The separation from the production run of accounts from individual .1200/carrier
Packaging - 3 Digit systems, principals, agents or grouping of zip codes. Includes sorting
Sort to a 3-digit level.
7625 PlastiCard Bulk The separation from the production run of accounts from individual .0690/carrier
Packaging - Basic systems, principals, agents or grouping of zip codes.
Sort
7687 PlastiCard Card The application of a clear laminate overlay placed over the entire card, Quote/side/plastic
Laminate Overlay protecting the PlastiCard Ultragraphics BIN number.
4101 PlastiCard Card Each affixation of a sticker to each embossed plastic in a Customer .0623/plastic
Activation Cardholder embossing run; a generic sticker is included at no
Labeling additional charge.
4218 PlastiCard The calculation and encoding and/or indent printing of the VISA Card 0100/calculated value
CVV/CVC Verification Value (CVV) or MasterCard Card Validation Code
Verification (CVC).
Generation
Exh. A - 34
4065 PlastiCard DES Each Data Encryption System (DES) Personal Identification Number .0359/DES PIN
PIN Generation (PIN) created by the FDR System in connection with a plastic card generated
produced by FDR on behalf of Customer.
4020 PlastiCard Each instance in which a change is made to any or all of (i) Customer's 3.5266/change
Embossing Set-Up prin level (if prin level billing for set-ups is required), (ii) the
plastic stock number, (iii) card carrier, (iv) tipping foil, (v) card
activation flag and sticker and/or (vi) ultragraphic color in connection
with Customer's plastic cards.
7640 PlastiCard Accelerated mailing of all of Customer's daily issue plastics. .0300/plastic
Expedited
Turnaround
7638 PlastiCard Free Each mailer containing up to 25 customized alpha numeric printed .0150/mailer
Form Text characters of free form text. The text will print on a predesigned area
of a generic mailer.
7642 PlastiCard Image The acceptance and management by FDR of each 1" x 1" electronic Quote/image
Management (1" x photo image scanned by a party other than FDR for use on the FDR
1") PlastiCard Customer Services image database. Each such image shall
be stored by FDR for use for up to five (5) years.
7700 PlastiCard Image The acceptance and management by FDR of each 2" x 2" electronic Quote/image
Management (2" x photo image scanned by a party other than FDR for use on the FDR
2") PlastiCard Customer Services image database. Each such image shall
be stored by FDR for use for up to five (5) years.
7639 PlastiCard Image Each logo or other image stored by FDR as a digitized image on a data $100.00/image
Scanning base for up to five (5) years.
7701 PlastiCard Image
Required
Revolving File The process whereby a specified embossing record is suspended from Quote/suspended
completion until either (i) an image is available, in which case the record checked per
image is utilized for the embossed plastic or (ii) a specified number of processing day
days has elapsed, in which case the embossing record is completed as a
non-photo item or r4emoved from processing.
4230 PlastiCard Indent Each plastic card of Customer's Cardholders for which FDR has used .0200/plastic
Printing indent printing.
4014/ PlastiCard The inserting of each accompanying piece of materials into a #10 .0186/insert
4015/ Inserting windowed envelope along with a pre-folded card carrier containing a
4016/ merged Cardholder plastic. Excludes inserts required by state or
4017 Federal law. Customer supplies inserts.
4022 PlastiCard Job Each scheduled daily receipt of a Customer's Cardholder Account $30.00/job
Processing information, including logging onto the AS400 system and setting up
control reports for each input.
7677 PlastiCard Laser Each PlastiCard PIN/Post Mailer which is laser printed and pressure .1200/mailer
PIN/Post Mailer sealed.
Processing
4011 PlastiCard Mail Mail preparation and handling fees associated with non-first class .8017/carrier plus
Handling mailings of Customer's Cardholder and Merchant plastics. postage
4083 PlastiCard Mail The mixture by FDR of a mail item containing an embossed plastic .0477/item
Integration with several other types of mailing items prior to their delivery to the
United States Postal Service for mailing. Anything in this Agreement to
the contrary notwithstanding, Customer understands and agrees that, with
respect to any embossed plastics for which FDR provides PlastiCard
Mail Integration Services, the normal turnaround for the mailing of such
embossed plastics shall, for purposes of this Agreement, be delayed by one
(1) business day.
Exh. A - 35
4023 PlastiCard Each plastic card for which FDR has mechanically raised personalized .3202/plastic
Merchant Plastic characters in accordance with Customer's Product Control File settings
and Merchant masterfile.
4024 PlastiCard Each metal plate for which FDR has mechanically raised personalized .5339/plate
Merchant Plate characters in accordance with Customer's Product Control File settings
and Merchant masterfile.
n/a PlastiCard Process by which FDR creates an embossed plastic containing an N/a
Photocard Services image provided by the Cardholder. Customer and FDR hereby agree
(1" x 1" or 2" x 2") that all photographs sent to FDR by Customer for use by FDR in the
performance of the PlastiCard Photocard Services set forth in this
Agreement shall, prior to delivery to FDR, be reviewed by
Customer for content. Customer acknowledges and agrees that,
with respect to the issuance of Photocards to its Cardholders,
FDR has no responsibility and assumes no responsibility whatsoever
for the content of any such photographs, and that Customer
is solely responsible for interpreting applicable state and federal
laws (including but not limited to laws governing obscenity, privacy,
proprietary information ownership rights and copyright/trademark
infringement), monitoring applicable legal developments, determining
the requirements for compliance with all applicable state and federal
laws, and maintaining an ongoing compliance program in connection with
such services.
7666 PlastiCard The handling and merging of images (not larger than 1" x 1") with .4300/plastic
Photocard Photo corresponding data to create an output file.
Image Handling
and Merge (1" x
1")
7669 PlastiCard The handling and merging of images (2" x 2") with corresponding data to .4600/plastic
Photocard Photo create an output file.
Image Handling
and Merge (2" x
2")
7665 PlastiCard The process by which FDR (i) scans a photograph or signature (not 2.1500/plastic
Photocard larger than 1" x 1"), (ii) cleans/crops the photograph or signature and
Photo/Signature (iii) stores such photograph or signature as a digitized image on a data
Scanning and base for up to five (5) years.
Digitization (1" x
1")
7668 PlastiCard The process by which FDR (i) scans a photograph (2" x 2"), (ii) 2.3700/plastic
Photocard Photo cleans/crops the photograph and (iii) stores such photograph as a
Scanning and digitized image on a data base for up to five (5) years.
Digitization (2" x
2")
7664 PlastiCard The affixation of a digitized photographic image (not larger than 1" x 1.200/plastic
Photocard Photo 1") to a plastic Transaction Card.
Transfer (1" x 1")
7667 PlastiCard The affixation of a digitized photographic image (2" x 2") to a plastic 1.3300/plastic
Photocard Photo Transaction Card.
Transfer (2" x 2")
Exh. A - 36
4008 PlastiCard PIN Each plastic card Personal Identification Number (PIN), and associated .1065/mailer
Mailer Processing PIN notice form, related to Customer's Cardholder.
4236/ PlastiCard The edit functions performed on a PIN/Post Mailer before printing. .2500/edit
4237/ PIN/Post Mailer The service includes Mailer method changes, Mailer address changes,
4238/ Production Edits Mailer mail date changes and Mailer deletions.
4239
4009 PlastiCard Post Each plastic card mail verification form (POST Mailer), related to .1065/mailer
Mailer Processing Customer's Cardholder.
4103 PlastiCard The fee associated with each programmer hour of computer Quote/programmer
Programming programming supplied by FDR's PlastiCard programming staff. hour
4012/ PlastiCard Pull Each removal of a card carrier and/or printed PIN/POST Mailer from .5094/carrier
4013 (Purging) the delivery/mail stream prior to delivery to Customer or Customer's
Cardholder. This includes but is not limited to "pull and destroys",
"pull and mail to different address" and "pull and mail overnight" (3
day turnaround).
7680 PlastiCard Pull (1 Each removal of a card carrier and/or printed PIN/Post mailer form 6.000/carrier
or 2 Day Non- from the production process prior to delivery to Customer or
Holds) Customer's Cardholder. This includes but is not limited to "pull and
destroys", "pull and mail to a different address" and "pull and mail
overnight" (1 and 2 day turnaround with holds).
7681 PlastiCard Pull (2 Each removal of a card carrier and/or printed PIN/Post mailer from the 3.500/carrier
Day Holds) production process prior to delivery to Customer or Customer's
Cardholder. This includes but is not limited to "pull and destroys",
"pull and mail to a different address" and "pull and mail overnight" (2
day turnaround with holds).
7692 PlastiCard Records The fee associated with processing each embossing record through .0200/carrier
Processed FDR's mainframe. This fee is waived by FDR if Customer utilizes
FDR's core embossing services.
7678 PlastiCard Same Each embossed Cardholder plastic where FDR mails or delivers the $12.00/plastic
Day EmbossingTM plastic to a courier during the same day of Customer's request via an
("PSD") on-line screen. The service includes standard embossing, carrier
printing, inserting and other services required to prepare the plastic
for delivery. Requests for PlastiCard Same Day EmbossingTM must be
received by 1400 hours Central Time Zone.
7679 PlastiCard Same Each Cardholder Account of Customer for which FDR performs hot Quote/account
Day Hot Stamping stamping in connection with the PlastiCard Same Day Embossing
service.
Exh. A - 37
PlastiCard Sample Each physical plastic card, either blank or embossed with fictitious Quote/plastic
Plastics information to resemble a real plastic, which is provided to an Issuer
for promotional, marketing or other purposes. Each such plastic shall be
intentionally damaged by FDR to prevent fraudulent use.
7645 PlastiCard Smart Each Cardholder plastic of Customer for which FDR performs a Quote/plastic
Card process of loading a dollar value or Customer specific information
Personalization onto, and initialization of, a "smart card" computer chip embedded
within the plastic.
4028 PlastiCard Special Rush servicing of cards from hard copy (fax or mail) reports or $25.00/carrier
Embossing - Same requests. Includes manual embossing, carrier printing and hand
Day Mailing inserting, and applies to any pieces pulled out of normal process.
Cards will be mailed the same day as the request is received if received
by 10:00 a.m. CTZ.
4019 PlastiCard Special Rush servicing of cards from hard copy (fax or mail) reports or $12.00/carrier
Embossing - Next requests. Includes manual embossing, carrier printing and hand
Day Mailing inserting, and applies to any pieces pulled out of normal process.
Cards will be mailed the day following the date the request is received
if received by 5:00 p.m. CTZ.
4029 PlastiCard Special Rush servicing of cards from hard copy (fax or mail) reports or 6.500/carrier
Embossing - Two requests. Includes manual embossing, carrier printing and hand
Day Mailing inserting, and applies to any pieces pulled out of normal process.
Cards will be mailed the second day following the date the request is
received if received by 5:00 p.m. CTZ.
4001/ PlastiCard Each plastic card for which FDR has mechanically raised personalized .2084/plastic
4002 Standard characters prepared at the request of Customer based upon Customer's embossed
Embossing Product Control File or a CRT entry request made by an employee of
Services Customer, or in response to a receipt of a magnetic tape or
transmission from Customer of embossing files in a format defined
by FDR. Includes up to three lines of alpha-numeric font and
one line of OCR font on a ".030" plastic, the recording and
verifying of data on the Transaction Card's magnetic stripe (high
or low coercivity), the tipping of the plastic through the placement
of a contrasting color plastic film on the raised embossed
characters, the printing of variable card carrier information on a
Customer-specified card carrier form and the insertion of a card
carrier containing a merged Cardholder plastic into an envelope, and
the electronic matching of plastic to the related card carrier. An FDR
generic card carrier and envelope are included at no charge, provided,
however, that due to increased inventory cost, if Customer uses its own
materials, Customer will not be entitled to receive a price discount.
FDR will generate embossing information based upon Customer's
Product Control File (or, at Customer's option, receive
embossing information via tape from Customer), use such information
to prepare the embossed plastic and mail the embossed plastic on
behalf of Customer to its Cardholder at the Cardholder's then current
address.
7689 PlastiCard Each half hour of labor required of FDR to create, paint or revise an Quote/half hour
Template Creation overlay document used to print onto a page for a card carrier and/or
mailer.
Exh. A - 38
7688 PlastiCard Each simplex or duplex laser printed (or similar technology) card .0800/carrier or form
Ultraforms carrier or form (to which a plastic card is affixed by adhesive)
sent by FDR on behalf of Customer to a Cardholder which card
carrier or form contains personalized information created by
the use of electronic documents or "templates" regarding the
Cardholder (including but not limited to name, address, account
number and credit limits).
4206 PlastiCard Each front side of a Transaction Card of Customer on which a logo is .1137/plastic
Ultragraphics - placed through the use of a thermal image process.
Front Side
4205 PlastiCard Each back side of a Transaction Card of Customer on which a logo is .1137/plastic
Ultragraphics - placed through the use of a thermal image process.
Back Side
4025 PlastiCard Vault The inventory and storage of plastics, procured through a source other .0101/plastic, levied
Storage than FDR, for a period of six (6) months from receipt of shipment. upon receipt of
shipment
6624 POS 950 Access Each dial-up point-of-sale terminal inquiry serviced by FDR for .0800/inquiry
Authorization Merchants of Customer by the use of a dial-up point-of-sale terminal
Inquiry and 950 telecommunication services. Customer shall pay FDR for
each instance during which FDR had electronic contact with a Merchant of
Customer and receives the Merchant number.
If a Merchant of Customer attempts to use its normal line to obtain an
authorization and the Merchant is unable to use such line
and uses another line, Customer shall pay FDR at the rate
charged for the line used by the Merchant. The price above for POS
950 Access is based upon response times associated with a Merchant
POS device utilizing a 1200 bit per second (bps) data line. In the
event that Customer's Merchants which elect to receive 950 Access
from FDR hereunder operate a Merchant POS device utilizing a data
line with less than a 1200 bps capability, then FDR shall have
the right, at its sole discretion, to increase at any time the price
then currently being charged to Customer for 950 Access in connection
with the 950 Access Inquiries generated by any such Merchants.
950 Access is available to certain telephone number prefixes, listed
by area code, as set forth in FDR's then current list of such prefixes.
Such list shall be provided to Customer upon request.
6606 POS Interstate Each dial-up point-of-sale terminal inquiry serviced by FDR for .1350/inquiry
Authorization Merchants of Customer by the use of a dial-up point-of-sale terminal
Inquiry and interstate WATS line telecommunication services. Customer shall
pay FDR for each instance during which FDR had electronic contact with
a Merchant of Customer and receives the Merchant number.
If a Merchant of Customer attempts to use its normal line to obtain an
authorization and the Merchant is unable to use such line and uses
another line, Customer shall pay FDR at the rate charged for the line used
by the Merchant.
Exh. A - 39
6605 POS Intrastate Each dial-up point-of-sale terminal inquiry serviced by FDR for .1350/inquiry
Authorization Merchants of Customer by the use of a dial-up point-of-sale terminal
Inquiry and intrastate WATS line telecommunication services. Customer shall
pay FDR for each instance during which FDR had electronic contact with
a Merchant of Customer and receives the Merchant number.
If a Merchant of Customer attempts to use its normal line to obtain an
authorization and the Merchant is unable to use such line and uses
another line, Customer shall pay FDR at the rate charged for the line used
by the Merchant.
6604 POS Local Line Each dial-up point-of-sale terminal inquiry serviced by FDR for .0900/inquiry
Authorization Merchants of Customer by the use of a dial-up point-of-sale
Inquiry terminal and local line telecommunication services. Customer shall pay
FDR for each instance during which FDR had electronic contact with a
Merchant of Customer and receives the Merchant number.
If a Merchant of Customer attempts to use its normal line to obtain an
authorization and the Merchant is unable to use such line and uses
another line, Customer shall pay FDR at the rate charged for the line used
by the Merchant. Local lines for authorization services are available in
the cities listed on-line under a TC-400 transaction.
4435 Postal Discount The fee associated with providing any postage discount generating .0300/item
Processing Fee services for Customer's first class mailings.
7647 Postal Discount The fee associated with providing postage pre-sort discount generating .0100/mailer
Processing Fee - services for Customer's PlastiCard Mailers.
PlastiCard
2858 Potential The queuing, for review by Customer's personnel, of Cardholder .0592/account
Chargeback Queue Accounts of Customer which meet Issuer criteria for 'over floor-
missing authorization' chargebacks and for which a transaction has been
made meeting chargeback reason criteria. The service is charged on a per
account in queue per day basis, but calculated on a monthly basis.
3516 Premier Each interactive touch tone authorization inquiry serviced by FDR for .5000/inquiry
Authorization Merchants of Customer. Customer shall pay FDR for each instance
Inquiry during which FDR has electronic contact with a Merchant of Customer
and receives the Merchant number. In addition, if a Premier authorization
inquiry results in a Voice Authorization Inquiry, Merchant request for
assistance or a security action, Customer will pay FDR for the Premier
authorization and the appropriate voice and/or security action
charge as provided in this Agreement.
2876 Promotional Letter Each letter prepared by FDR at the request of Customer for mailing to Quote/letter
Cardholders (or Merchants) of Customer for promotional purposes.
n/a PTC Software Software package that allows Customer or a Merchant of Customer to N/a
authorize and post Transaction Card transactions. The FDR Personal
Ticket Capture (PTC) system is a proprietary product that works in
conjunction with the FDR Electronic Ticket Capture (ETC) product.
0253 PTC Software Copy of the PTC/ATP version of the PTC Software. $200.00/copy
Copy (PTC/ATP)
0251 PTC Software Copy of the 1.00 version of the PTC Software. $30.00/copy
Copy (PTC 1.00)
Exh. A - 40
0250/ PTC Software 1.00 or PTC/ATP version of the PTC Software with the accompanying $200.00/package
0252 With License license.
n/a RAPID Services Returned Account Plastics Immediately Delivered (Rapid) Services N/a
shall be performed by FDR on behalf of Customer for a Cardholder of
Customer. FDR shall research, track and, if possible and at Customer's
option, reroute to the Cardholder's new address Transaction Cards
which have been returned to FDR due to a change in the Cardholder's
address. FDR shall also enter such address change on the Cardholder
masterfile. Returned Transaction Cards of Cardholders for which no
new address is available and those which Customer elects not to
reroute to the Cardholder shall be destroyed.
7114 RAPID Services - Each plastic which is destroyed as a result of the RAPID Services. 1.8963/plastic
Destroyed
7113 RAPID Services - Each plastic which is able to be resent to the Cardholder at the 2.6634/plastic plus
Rerouted to Cardholder's new address as a result of the RAPID Services. postage
Cardholder
5781 Real Time Customer may monitor a Merchant's activity prior to the processing of .0350/number of daily
Merchant Fraud tickets and suspend batches of tickets from processing and delay or transactions
Exceptions delete the monetary settlement of known fraudulent activity. suspended within the
queue
n/a Recovery 1 An on-line system which provides Customer with the means to n/a
Services perform Transaction Card recovery services on Customer's charged-off
Cardholder Accounts. Customer shall have on-line access to
certain software and services on the FDR System which will allow
customer to perform various collection related functions with
respect to such Accounts.
In the event that Customer elects to utilize the Recover 1 Services,
then Customer hereby agrees to continue to utilize such services for
a period of not less than twelve (12) months following the
commencement date of such services.
7286 Recovery 1 Each transaction affecting an account balance which transaction is .1500/transaction
Services - generated in connection with a Cardholder Account of Customer
Financial utilizing the Recovery 1 Services.
Transaction Fee
7285 Recovery 1 Each Cardholder Account of Customer assigned to the Recovery 1 .1200/account per
Services - Monthly system upon the conclusion of a calendar month. month
Residence Fee
7287 Recovery 1 Each note entered into the Recovery 1 file for a Cardholder Account of .0010/note
Services - Note on Customer for archival use.
File
7288 Recovery 1 Each DecisionMaster Save or Analyze Portfolio Save executed in 3.500/run
Services - Save connection with a Cardholder Account of Customer utilizing the
Executed Recovery 1 Services.
6632 Referral Each referral authorization message handled by FDR on behalf of 2.7500/referral
Customer's Merchant.
2844 Referral Queue Authorization Referrals to which the Merchant failed to .0636/account
respond are recorded in a real-time on-line work queue for review by
Customer to initiate the appropriate action. The service is charged on
a per account in queue per day basis, but calculated on a
monthly basis.
0343 Regulation "Z" Each line of notification, included on a Xxxxxxxxxx Xxxxxxxxx, .0000/xxxx
Xxxxxxxxx Message informing the Cardholder of the renewal of the Cardholder Account
and assessment of an annual fee therefor.
Exh. A - 41
2835 Retail On-Line Each entry of information or inquiry into the computer records of .0150/transaction
Transaction Customer and its Cardholders with promotional purchases on file by an
employee of Customer by the use of a terminal located at Customer's
office.
0098 Retrieval Each manual fulfillment provided by FDR in response to a request for 2.7500/retrieval
a Merchant Ticket or copy of the same stored at FDR on behalf of
Customer.
7934 Return Account The processing of mailed plastics returned by the United States Postal 1.400/account
Processing Service Service due to undeliverable address. Each such plastic shall be
destroyed by FDR and reported to Customer.
0242 RMS Hardcopy Each FDR Reports Management System (RMS) report provided to .0297/page
Report Customer by FDR in hardcopy form.
5075 RMS Online Each page of an RMS Online Report printed at Customer's location. .0280/page
Report - Report
Printing
5071 RMS On-Line Each page of an RMS Report for which Customer requires access later 5.3270/page
Report - Restore than eight (8) days following the date that such report is first made
available to Customer.
5072 RMS On-Line Each RMS Report which is split into component parts by FDR at the $75.00/report
Report - Splitting request of Customer.
2809 RMS On-Line Each FDR Reports Management System (RMS) report provided to .0200/page
Report Customer by FDR in an online view form.
For purposes of the billing of RMS Reports: (i) if the standard
(or default) setting for a particular report is "0", then all
pages of RMS On- Line View and RMS RJE of such report provided by
FDR to Customer shall be billed to Customer at the prices above, or
(ii) if the standard (or default) setting for a particular report is
a value other than "0", then each page of the RMS On-Line View of such
report provided by FDR to Customer shall be at no charge and each
page of RMS RJE of such report shall be billed to Customer at the prices above.
0249 RMS RJE/NDM Each FDR Reports Management System (RMS) report provided to .0158/page
Report Customer by FDR in remote job entry (RJE) or network data mover
(NDM) format.
For purposes of the billing of RMS Reports: (i) if the standard
(or default) setting for a particular report is "0", then all
pages of RMS On- Line View and RMS RJE of such report provided by
FDR to Customer shall be billed to Customer at the prices above, or
(ii) if the standard (or default) setting for a particular report is
a value other than "0", then each page of the RMS On-Line View of such
report provided by FDR to Customer shall be at no charge and each
page of RMS RJE of such report shall be billed to Customer at the prices above.
2754 Security Details Each Cardholder Account of Customer which is statused lost or stolen .5486/account
Worked Online and which is automatically identified and reported to an online work
queue.
0264/ Service Plus Help Each instance in which a Merchant of Customer calls the Service Plus 1.7500/call
0265 Call Help Center.
Exh. A - 42
0266 Service Plus Each Merchant location of Customer participating in the Service Plus 1.1191/merchant
Registered Help Center program. location
Merchant
0294 Special RMS The additional charge to Customer for each non-standard or unique $30.00/report
Report Premium RMS report provided to Customer at Customer's request.
7010 Status Code A change by FDR personnel to the external status code or credit limit .6912/transaction
Change - Manual of a Cardholder Account of Customer made upon Customer's request.
Entry by FDR
7037 Terminated Each entry of a Merchant Account of Customer onto or check of a new 1.6512/transaction
Merchant File Merchant Account of Customer against the Terminated Merchant File.
Transaction
2836 Transaction Level Each promotional purchase balance, associated with a Cardholder .2000/month per
Processing (TLP) Account of Customer (several promotional purchase balances may
Promotional exist at the same time for the same Cardholder Account), which
Balance on File remains on the FDR System on the last processing day of the calendar
month, as defined on the CD-121 Ledger Activity Report or the
equivalent report (e.g. - the CD-621 Report).
7330 Transaction Level Each Cardholder initiated transaction (as indicated on the CD-864 .0450/transaction
Rewards (TLR) Report or its equivalent), specifically targeted by transaction and
Only Transaction Cardholder decision tables, and passed to the FDR rewards system for
processing (transactions which have already been posted to a TLP
Promotional Balance on File are excluded). Multiple targeted transactions
may post to a single Cardholder Account in any one month.
6621 Voice Each Merchant authorization request received by FDR through voice .6223/inquiry
Authorization inquiries from Merchants of Customer, including collect calls, or via
Inquiry telegrams and telexes from countries outside of the United States.
2855 Warning Bulletin The queuing of internally or externally statused Cardholder Accounts .0132/account
Record Queue of Customer for review and possible listing on the MasterCard
Warning Bulletin, the MasterCard Authorization File or the VISA
Warning Bulletin by Customer's personnel. The service is charged on
a per account in queue per day basis, but calculated on a monthly basis.
2720 Warning Bulletin The system-automated, initial generation of a MasterCard Warning .5538/transaction
Transaction - Bulletin, MasterCard Authorization File or VISA Warning Bulletin
Automatic Entry account entry transaction; the account listing and region(s) shall be as
dictated by Customer.
7009 Warning Bulletin Each entry or change made to the MasterCard Warning Bulletin, .6411/transaction
Transaction - MasterCard Authorization File or VISA Warning Bulletin by FDR
Manual Entry by personnel; the account listing and region(s) shall be as dictated by
FDR Customer.
2608 XQR Collection An entry made by an employee of Customer to reassign collection 1.00/transaction
Transaction accounts to alternative employees' work queues.
Exh. A - 43
V. REIMBURSEMENTS AND ASSESSMENTS
a. The communications data circuit, including the reoccurring service
charge, service termination fees and required modem(s) (data sets)
at Customer's location(s) and FDR, terminal(s) and any other
directly associated expenses, shall be at Customer'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
FDR's primary carrier. One time costs related to the installation
of the circuit, as specified by such tariffs, will also be paid by
Customer. The actual circuit speed and ensuing cost will be
determined by Customer's communications requirements.
b. Customer shall be responsible for and billed directly for any
MasterCard, VISA or other Transaction Card dues, fees and
assessments. Customer shall reimburse FDR for Base Access Fees
incurred by FDR on behalf of Customer. (IN - 3513)
c. Customer shall pay all courier expenses associated with the
transportation of reports and documents from Customer to FDR and
from FDR to Customer.
d. (i) FDR agrees to act as an agent on behalf of Customer and
Customer shall reimburse FDR at cost (after applying any
applicable rebates, refunds and discounts) for the purchase on
Customer=s behalf of the postage required to mail statements,
notices, letters and other materials mailed by FDR on behalf of
Customer. While this Agreement is in effect, Customer shall pay
FDR daily pursuant to this Agreement at the then current first
class, single piece postage rate for all mailings mailed by FDR
for Customer during that day. Within ten (10) days after the end
of the month, FDR shall (i) calculate, for each discount category
offered by the United States Postal Service ("USPS") which is used
by Customer, the percentage of mailings with respect to all
customers of FDR that qualified for such discount and the number
of first class mailings mailed by FDR for Customer during such
month and (ii) include a credit on Customer=s monthly invoice for
the amount Customer is entitled to receive under this section.
Such credit shall be calculated by applying such percentage for
each USPS discount category against Customer=s total mailings in
such category to determine the appropriate USPS discount Customer
is entitled to receive.
(ii) Notwithstanding anything in paragraph (i) above, FDR agrees
to act as an agent on behalf of Customer and Customer shall
reimburse FDR at cost (after applying any applicable pre-sorting
rebates, refunds and discounts) for the purchase on Customer=s
behalf of the postage required to mail Cardholder plastics mailers
on behalf of Customer. While this Agreement is in effect, Customer
shall pay FDR daily pursuant to this Agreement at the then current
first class, single piece postage rate for all Cardholder plastics
mailers mailed by FDR for Customer during that day. Within ten
(10) days after the end of the month, FDR shall (i) calculate, for
the pre-sorting discount category offered by the United States
Postal Service ("USPS"), the percentage of mailings with respect
to all customers of FDR that qualified for such discount and the
number of Cardholder plastics mailers mailed by FDR for Customer
during such month and (ii) include a credit on Customer=s monthly
invoice for the amount Customer is entitled to receive under this
section. Such credit shall be calculated by applying such
percentage for the USPS pre-sorting discount category against
Customer=s total Cardholder plastics mailings in such category to
determine the appropriate USPS discount Customer is entitled to
receive.
e. For the Transfer of Customer's Accounts, as described in Section
2.4 of this Agreement, Customer shall pay FDR at a rate to be
quoted to Customer by FDR based upon the services provided in
connection with the Transfer; provided, that Customer shall, as an
advance payment against the total amount of the Transfer fee, pay
to FDR on or before October 31, 1999, the amount of twenty
thousand dollars ($20,000.00). Such amount shall be credited
against the total amount of the Transfer fee to be paid to FDR by
Customer hereunder.
f. For each Reward processed by FDR, Customer shall reimburse FDR for
the amount of the Reward payment to the Merchant, plus any
additional fees or charges to which FDR is entitled under
applicable MasterCard and VISA rules and regulations in connection
with the processing of such Reward. A Reward shall mean each
monetary payment made to a Merchant for the recovery of a statused
Transaction Card of Customer, which payment is processed by FDR in
accordance with the reward schedule established by MasterCard and
VISA for card pick-up. (IN - 7915)
Exh. A - 44
g. Customer shall reimburse FDR for special service
set-up/certification fees and charges, training fees and
programming fees including but not limited to the set up/training
charges associated with FDR's Customer Inquiry Management System
(CIMS) Services, PIN Management System Services, Extended CIS
Services, Application Processing Services, PC Remote Access
Services, Account-Level Processing (ALP) Services, Online Access
and Retrieval System (OARS) Services, Acquiring Debit Services,
Transaction Level Processing (TLP)/Transaction Level Rewards (TLR)
Services, ANI Card Activation Services, Commercial Card Services,
Promotional Letter Services, Fraud Management/Fraud Detection
Services (Scoring and Strategy Start-Up and Call Processing), Auto
PIN Change service, InfoSight Services (for each program utilized
by Customer) and other services requiring special programming or
training. Prices for such services shall be provided by FDR upon
Customer's request.
h. Customer shall reimburse FDR for destroyed forms, product service
selects, network control requests, equipment sales, supplies and
documentation manuals.
VII. VOLUME-SENSITIVE GRID PRICES
Commencing on the effective date of this Agreement, Customer shall pay
FDR for each volume-sensitive service ("Service") at the rate indicated
by "**". Upon the expiration of each Processing Year, FDR shall
calculate the actual volume of each item of Service during such
Processing Year and then determine the appropriate price per item of
each Service. Based upon such calculation, FDR shall then calculate the
total amount of processing fees owed by Customer to FDR during such
Processing Year. If, during any Processing Year, Customer shall have
paid FDR more or less than the amount owed to FDR based upon the above
calculations, then FDR shall issue a credit to Customer for any amounts
due Customer under this Section or invoice Customer for any amounts due
FDR, as appropriate. The fees charged for each item of Service during
each subsequent Processing Year shall be based upon the previous
Processing Year's volumes.
VIII. EXPLANATION OF PRICING TERMS
For purposes of this Exhibit A: (i) "quote" means this Agreement does
not contemplate the use of this service or product, but FDR shall, on
the request of the Customer, provide a price for such service or
product, (ii) "n/a" means the applicable description is an overall
description of the applicable service for reference only and does not
describe a particular billing element, and (iii) "included" means the
charge for the service or product is included in the price of other
items in this Exhibit A.
IX. PRICES FOR SERVICES NOT COVERED BY THIS AGREEMENT
For any services performed by FDR at Customer's direction which are
neither set forth in this Exhibit nor covered by a separate agreement,
Customer shall pay FDR for such services at FDR's then current standard
rates.
Exh. A - 45
EXHIBIT B
---------
AFFILIATE AGREEMENT
The undersigned, as a Customer Transaction Card Affiliate ("Customer
Transaction Card Affiliate") of Fidelity Federal Bank, a Federal Savings Bank
("Customer"), hereby elects to receive Services from First Data Resources Inc.
("FDR") pursuant to the Service Agreement between Customer and FDR dated as of
October 8, 1999, as the Service Agreement may be amended from time to time (the
"Service Agreement"). This agreement (this "Agreement") shall constitute an
"Affiliate Agreement" as such term is defined in the Service Agreement. In
making this election, Customer Transaction Card Affiliate agrees as follows:
1. Customer Transaction Card Affiliate acknowledges receipt of a copy
of the Service Agreement which includes the description of the Services.
Customer Transaction Card Affiliate agrees to be bound by all of the terms and
conditions of the Service Agreement including any terms and conditions in any
amendment to the Service Agreement which may hereafter be agreed to by Customer
whether or not Customer Transaction Card Affiliate is provided notice or a copy
of or is a signatory to the amendment.
2. Customer Transaction Card Affiliate specifically agrees to comply
with the applicable rules, procedures, manuals and instructions of MasterCard,
VISA and FDR as in effect from time to time.
3. Customer shall have full authority to represent Customer Transaction
Card Affiliate and to act fully on Customer Transaction Card Affiliate's behalf
in connection with this Agreement and the Service Agreement including the
negotiating with FDR of any amendments, extensions or revisions of this
Agreement or the Service Agreement, the asserting, negotiating and resolving of
any controversy, dispute or claim under this Agreement or Service Agreement and
the execution or delivery of any documents.
4. If Customer shall fail to pay any amounts due under the Service
Agreement, Customer Transaction Card Affiliate shall pay FDR on demand the
portion of such amounts due from Customer to FDR for services performed by FDR
for or on behalf of Customer Transaction Card Affiliate (as determined by FDR,
based upon the percentage that the Processing Fees relating to processing for
Customer Transaction Card Affiliate are of the total Processing Fees under the
Service Agreement).
5. This Agreement shall be governed by the laws of the State of
Nebraska and any claim, suit or proceeding shall be subject to the provisions of
Section 13.3 of the Service Agreement.
6. Customer Transaction Card Affiliate acknowledges and agrees that it
may not transfer or assign its rights under this Agreement without the prior
written consent of FDR.
Exh. B - 1
7. Terms used in this Agreement and not defined herein shall have the
definitions provided in the Service Agreement.
8. Any notice to Customer Transaction Card Affiliate shall be given as
provided in Section 13.4 of the Service Agreement except to the following
address;
Name:
-----------------------------
Address:
-----------------------------
Attention:
-----------------------------
Telecopy No.:
-----------------------------
Any notice to FDR shall be given as provided in Section 13.4
of the Service Agreement.
9. This Agreement shall remain effective until the expiration or
termination of the Service Agreement. This Agreement, along with the Service
Agreement as the Service Agreement may be amended from time to time, sets forth
the entire understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements or understandings among the parties
with respect to the subject matter hereof. This Agreement may not be amended
except in a writing signed by an authorized officer or representative of each of
the parties hereto. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
-------------------------------------
Name of Affiliate
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Date:
-----------------------------
ACCEPTED AND AGREED TO:
FIRST DATA RESOURCES INC.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Date:
-----------------------------
Exh. B - 2
EXHIBIT C
---------
DEFINITIONS
The following definitions apply to the terms set forth below when used
in this Agreement:
"AAA" is defined in Exhibit D to this Agreement.
"Acquire" (and with the correlative meaning "Acquisition") means to
acquire, directly or indirectly, an interest through purchase, exchange or other
acquisition of assets, stock or other equity interests, or to merge or
consolidate or any similar transaction.
"Acquirer" means an Entity which has an arrangement with a Merchant to
obtain Transaction Card Tickets from the Merchant and present the Transaction
Card Tickets through an Interchange to an Issuer.
"Affiliate" means, with respect to Customer or FDR, any Entity which,
directly or indirectly, owns or Controls, is owned or Controlled by, or is under
common ownership or common Control with Customer or FDR, as applicable.
"Affiliate Agreement" shall mean an agreement substantially in the form
of Exhibit B which is executed by Customer's Issuer Affiliates and Customer's
Merchant Affiliates.
"Agreement" shall mean this Service Agreement as amended from time to
time including any Exhibits attached hereto from time to time and the executed
Affiliate Agreements, if any.
"Arbitration Demand" is defined in Exhibit D to this Agreement.
"Arbitration Panel" is defined in Exhibit D to this Agreement.
"Balance Sheet Expenses" means the amounts maintained on the balance
sheet of FDR with respect to this Agreement, including (i) costs or expenses
which FDR incurs, or for which it reimburses Customer, and capitalizes on its
balance sheet in connection with setting up Customer on, or converting Customer
to, the FDR System and (ii) amounts paid or credit to be applied against future
processing fees to be paid by Customer and capitalized by FDR on its balance
sheet as a signing fee, sign-up bonus, start-up bonus, conversion bonus, renewal
bonus or similar payment or credit paid or credited by FDR to Customer at the
time of the execution, renewal or extension of this Agreement.
"Basic Qualifications" is defined in Exhibit D to this Agreement.
"BIN" means a Bank Identification Number issued by VISA.
Exh. C - 1
"Business Continuity Plan" is defined in Section 13.2 of this
Agreement.
"Cardholder" means an individual or Entity which has a Cardholder
Account with an Issuer.
"Cardholder Account" means an arrangement between an individual or an
Entity and an Issuer which provides that the individual or Entity may use one or
more Transaction Cards issued by the Issuer.
"Change of Control" shall mean a change in the direct or indirect
ownership of a majority of an Entity=s (including Customer and any Affiliate of
Customer) outstanding capital stock (or other form of ownership) or a majority
of the voting power in any election of directors.
"CMC" is defined in the Recitals to this Agreement.
"CMC Agreement" is defined in the Recitals to this Agreement.
"Control" (and with the correlative meaning "Controlled") means the
power to direct the management or affairs of an Entity and "ownership" means the
beneficial ownership of more than 50% of the equity securities of the Entity.
"CPI" shall, for purposes of this Agreement, 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."
"Cure Period" is defined in Section 2.10(b) of this Agreement.
"Customer's Accounts" means the Cardholder Accounts and Merchant
Accounts of Customer or any of Customer's Transaction Card Affiliates.
"Customer's Agent Bank" means an Entity which at any time during the
Term has an arrangement with Customer or an Affiliate of Customer which (a)
permits the Entity to act as an Issuer or an Acquirer and obtain services
related to the activities from either or both of Customer or one or more of
Customer's Affiliates, or (b) provides that an Entity may act as an Issuer or
Acquirer in conjunction with Customer or one or more of Customer's Affiliates.
"Customer's Issuer Affiliate" means an Affiliate of Customer that acts
as an Issuer (either alone or in conjunction with one of Customer's Agent Banks)
at any time during the Term.
"Customer's Merchant Affiliate" means an Affiliate of Customer that
acts as an Acquirer (either alone or in conjunction with one of Customer's Agent
Banks) at any time during the Term.
"Customer's Proprietary Information" is defined in Section 10.1 of this
Agreement.
Exh. C - 2
"Customer's Transaction Card Affiliates" means any and all of
Customer's Issuer Affiliates, Customer's Merchant Affiliates and Customer's
Agent Banks.
"Daily Amount" is defined in Exhibit F to this Agreement.
"Deconversion" means the removal of information concerning Customer's
Accounts from the FDR System.
"Dispute" is defined in Section 5.1 of this Agreement.
"Disputing Party" is defined in Exhibit D to this Agreement.
"Enhancements" is defined in Section 2.3 of this Agreement.
"Entity" means a corporation, partnership, sole proprietorship, joint
venture, or other form of organization.
"Existing FDR Agreement" is defined in Section 3.2 of this Agreement.
"Existing Non-FDR Agreement" is defined in Section 3.3(a) of this
Agreement.
"Failed Month" is defined in Section 2.10(b) of this Agreement.
"FDR Portfolio" is defined in Section 3.2 of this Agreement
"FDR's Proprietary Information" is defined in Section 10.2 of this
Agreement.
"FDR Settlement Rules" means the policies, rules and procedures adopted
by FDR from time to time and in effect from time to time to provide for the
payment of amounts due as the result of Interchange Settlement.
"FDR System" means the computer equipment, computer software and
related equipment and documentation used at any time and from time to time by
FDR to provide the Services.
"Former Accounts" is defined in Section 3.4 of this Agreement.
"ICA" means an InterBank Card Association number issued by MasterCard.
"Indemnified Party" is defined in Exhibit E to this Agreement.
"Indemnifying Party" is defined in Exhibit E to this Agreement.
"Insolvency Event" occurs, with respect to any party, when such party:
Exh. C - 3
(i) is dissolved, becomes insolvent, generally fails to
pay or admits in writing its inability generally to
pay its debts as they become due;
(ii) makes a general assignment, arrangement, or
composition agreement with or for the benefit of its
creditors; or
(iii) files a petition in bankruptcy or institutes any
action under federal or state law for the relief of
debtors or seeks or consents to the appointment of an
administrator, receiver, custodian, or similar
official for the wind up of its business (or has such
a petition or action filed against it and such
petition action or appointment is not dismissed or
stayed within thirty (30) days).
"Interchange" means the contracts, agreements, rules, regulations and
procedures governing the relationships between, or the actions in accordance
with the contracts, agreements, rules, regulations and procedures by, any two or
more Entities in connection with the Interchange Settlement.
"Interchange Settlement" means the process by which FDR, on behalf of
either or both of Customer or Customer's Transaction Card Affiliates, (a)
facilitates payment for MasterCard and VISA Transaction Card Tickets presented
by Acquirers to Customer and Customer's Transaction Card Affiliates, (b)
receives payment for MasterCard and VISA Transaction Card Tickets presented by
Customer and Customer's Transaction Card Affiliates to Issuers, and (c) remits
and receives payments for chargebacks and other Interchange fees and expenses of
or payable by Customer or Customer's Transaction Card Affiliates.
"Issuer" means an Entity that has a Cardholder Account with a
Cardholder.
"Legal Requirements" is defined in Section 2.5 of this Agreement.
"MasterCard" means MasterCard International Incorporated or its
successors or assigns.
"Merchant" means an Entity that has the right to acquire or otherwise
acquires a Transaction Card Ticket as payment for goods, services, or otherwise.
"Merchant Account" means an arrangement between an Acquirer and a
Merchant which permits a Merchant to present Transaction Card Tickets to the
Acquirer for payment through the Interchange.
"Mid-Month Progress Payment" is defined in Section 4.5(b) of this
Agreement.
"Minimum Processing Fees" is defined in Section 4.4 of this Agreement.
Exh. C - 4
"Net Settlement Amount" means the net dollar amount for each business
day of FDR of all (a) transactions processed for Customer and Customer's
Transaction Card Affiliates for the day determined in accordance with the
applicable rules of MasterCard, VISA and the FDR Settlement Rules, (b)
Interchange fees and expenses relating to Customer and Customer's Transaction
Card Affiliates, and (c) account expenses including overdraft charges, activity
charges, wire transfer fees and other charges relating to Customer and
Customer's Transaction Card Affiliates.
"Non-FDR Portfolio" is defined in Section 3.3(a) of this Agreement.
"Original Term" is defined in Section 8.1 of this Agreement.
"Performance Guidelines" is defined in Section 2.10(a) of this
Agreement.
"Processing Fees" means all fees and charges incurred for services
performed at the prices set forth in Exhibit A to this Agreement (including any
Year 1 Minimum Processing Fee or Minimum Processing Fee shortfall payments), as
adjusted from time to time by FDR consistent with this Agreement, with the
exception of Special Fees and specifically excluding all charges for taxes and
interest.
"Processing Year" is defined in Section 8.1 of this Agreement.
"Processing Year 1" is defined in Section 8.1 this Agreement.
"Purchaser" is defined in Section 3.2 of this Agreement.
"Renewal Term" is defined in Section 8.2 of this Agreement.
"Services" is defined in Section 2.1 of this Agreement.
"Settlement Account" is defined in Exhibit F to this Agreement.
"Settlement Late Payment Fee" is defined in Exhibit F to this
Agreement.
"Settlement System" is defined in Exhibit F to this Agreement.
"Special Fees" means the amounts payable by Customer on a pass-through
or reimbursement basis for services or goods provided by a third party,
including tariff line rates, WATS lines rates, data circuit charges and any
other rates charged to FDR by a communications common carrier, postage costs,
courier costs and costs of forms, as described in Exhibit A to this Agreement.
"Surviving Entity" is defined in Section 3.6 of this Agreement.
"Term" means the Original Term together with any Renewal Term or any
other extension of this Agreement.
"Total Annual Processing Fees" is defined in Section 4.4 of this
Agreement.
Exh. C - 5
"Transaction Card" means a payment card issued pursuant to a license
from MasterCard, VISA or any other card issuing organization for which FDR
currently provides service support. This shall include any credit card, debit
card or any small business account card, purchasing account card or corporate
travel and expense account card ("Commercial Card") program offered by Customer.
"Transaction Card Ticket" means a record (whether paper, magnetic,
electronic or otherwise) which is created to evidence the use of a Transaction
Card as payment for goods, services, cash advances or otherwise or for a credit
or refund or otherwise.
"Transfer" is defined in Section 2.4(a) of this Agreement.
"User Manuals" means each of the FDR User Manuals listed in Section I
of Exhibit A to this Agreement.
"VISA" means, individually or collectively, as appropriate, VISA U.S.A.
Inc. or VISA INTERNATIONAL or either of their successors or assigns.
"VISA Agreements" is defined in Section 13.9 of this Agreement.
"Year 1 Minimum Processing Fee" is defined in Section 4.4 of this
Agreement.
Xxx. X - 0
XXXXXXX X
---------
ARBITRATION
ARBITRATION
-----------
(a) If the parties are unable to resolve any Dispute as contemplated by
Section 5.1 of this Agreement, such Dispute shall be submitted to mandatory and
binding arbitration at the election of either party (the "Disputing Party").
Except as otherwise provided in this Exhibit D, the arbitration shall be
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA").
(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 Customer or FDR or an employee of an Affiliate of either, 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.
(c) The arbitration hearing shall be held in such neutral 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 non-prevailing 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 any dismissed claim or issue. 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 Exhibit D.
Exh. D - 1
(d) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings as called for by this Exhibit D, 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 Exhibit D. Each
such replacement arbitrator shall satisfy the Basic Qualifications. If an
arbitrator is replaced pursuant to this paragraph (d) after the arbitration
hearing has commence, then a rehearing shall take place in accordance with the
provisions of this Exhibit D 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 one-half of all fees, costs and expenses of
the arbitrators and the arbitration proceeding, provided, however, that the
prevailing party in the arbitration will be entitled to recover reasonable
attorneys' fees incurred in connection with the arbitration; and 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 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.
JUDICIAL PROCEDURE. Nothing in this Exhibit D 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 this
Exhibit D.
FEDERAL ARBITRATION ACT. The parties acknowledge and agree that performance of
the obligations under this contract necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to relevant provisions of this Exhibit D.
Exh. D - 2
EXHIBIT E
---------
INDEMNIFICATION
CUSTOMER'S INDEMNIFICATION. Customer shall indemnify and hold harmless
FDR and its directors, officers, employees, agents and affiliates from and
against any and all third party claims, liabilities, losses and damages
(including reasonable attorney fees, expert witness fees, expenses and costs of
settlement) arising out of or with respect to this Agreement, to the extent that
the claim, liability, loss or damage is caused by, relates to or arises out of
(a) the breach by Customer of any of its duties or obligations under this
Agreement or (b) a claim or action against FDR for any actual or alleged
infringement of any patent, copyright, trade secret or other proprietary rights
of any person in connection with the development of software or systems to
support an enhancement requested by Customer using designs or specifications
provided by Customer or in connection with the production by FDR of cards,
statements or other items for Customer using artwork, designs or concepts
provided by Customer.
Customer shall not have any obligation to indemnify FDR against any claim,
liability, loss or damage FDR or its directors, officers, employees, agents or
affiliates may suffer to the extent that the same arise out of FDR's negligent
performance of any of the services provided under this Agreement.
FDR'S INDEMNIFICATION. FDR shall indemnify Customer and its directors,
officers, employees and agents from and against any and all third party claims,
liabilities, losses or damages (including reasonable attorney fees, expert
witness fees, expenses and costs of settlement) arising out of or with respect
to this Agreement to the extent that the claim, liability, loss or damage is
caused by, relates to or arises out of (a) the breach by FDR of any of its
duties or obligations under this Agreement or (b) a claim or action against
Customer for actual or alleged infringement of any patent, copyright, trade
secret or other proprietary rights of any person by the FDR System or any part
thereof, except to the extent such claim is caused by (i) Customer=s failure to
use the FDR System as permitted under this Agreement, (ii) Customer=s use of the
FDR System in combination with other software or systems not expressly
authorized by FDR, or (iii) the development of software by FDR to support an
enhancement requested by Customer using designs or specifications provided by
Customer or the production by FDR of cards, statements or other items for
Customer using artwork, designs or concepts provided by Customer. The provisions
of this paragraph shall not be applicable in the case of such liability, claim,
demand or dispute to the extent that the same arise out of negligence or willful
misconduct of Customer, their assigns or their respective agents or employees.
NOTIFICATION. In the event a claim, suit or proceeding by a third party
for which indemnification may be available under this Agreement is made or filed
against a party or any Entity, the party against which the claim, suit or
proceeding is made (the "Indemnified Party"), shall promptly notify the other
party (the "Indemnifying Party") in writing of the claim, suit or proceeding.
The Indemnifying Party, within thirty (30) days, or such shorter period as is
required to avoid any prejudice in the claim, suit or proceeding, after the
notice, may elect to defend, compromise, or settle the third party claim, suit
Exh. E - 1
or proceeding at its expense. In any third party claim, suit or proceeding which
the Indemnifying Party has elected to defend, compromise or settle, the
Indemnifying Party shall not after the election be responsible for the expenses,
including counsel fees, of the Indemnified Party but the Indemnified Party may
participate therein and retain counsel at its own expense. In any third party
claim, suit or proceeding the defense of which the Indemnifying Party shall have
assumed, the Indemnified Party will not consent to the entry of any judgment or
enter into any settlement with respect to the matter without the consent of the
Indemnifying Party and the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement affecting the Indemnified Party to the
extent that the judgment or settlement involves more than the payment of money
without the written consent of the Indemnified Party. The Indemnified Party
shall provide to the Indemnifying Party all information, assistance and
authority reasonably requested in order to evaluate any third party claim, suit
or proceeding and effect any defense, compromise or settlement.
CLAIMS PERIOD. Any claim for indemnification under this Agreement must
be made prior to the earlier of:
(a) One year after the party claiming indemnification becomes aware of
the event for which indemnification is claimed, or
(b) One year after the earlier of the termination of this Agreement or
the expiration of the Term.
Exh. E - 2
EXHIBIT F
---------
INTERCHANGE SETTLEMENT
INTERCHANGE SETTLEMENT ACCOUNT. In order for FDR to provide its services to
Customer pursuant to this Agreement, it is necessary for FDR to handle and
settle Interchange Settlement for Customer through the international Interchange
networks of MasterCard and VISA. It shall be the responsibility of Customer to
provide ICA and BIN numbers from MasterCard and VISA, respectively, for use by
FDR in the settlement of transactions for Customer. Customer understands that
FDR handles the Interchange Settlement with MasterCard and VISA for its clients
including Customer on a net settlement basis (the "Settlement System"). To
facilitate the Settlement System, FDR has established, will establish or will
direct Customer to establish and may in the future establish or direct Customer
to establish one or more interchange settlement Central Clearing Accounts
(collectively the "Settlement Account") at one or more banks.
TRANSFER OF FUNDS. FDR shall calculate and inform Customer on each business day
of the amount of funds to be transferred (the "Daily Amount") as the result of
(a) current transaction processing, and (b) funding required for incoming
transactions of Customer. If the Daily Amount is negative, Customer shall
transfer to the Settlement Account, by the close of business of the Federal
Reserve System in New York, an amount equal to the Daily Amount. If the Daily
Amount is positive, FDR will transfer to Customer, or will cause MasterCard or
VISA to transfer to Customer, immediately available funds equal to the Daily
Amount prior to the close of business of the Federal Reserve System in New York
on such date.
DAILY AMOUNT. The Daily Amount shall equal (a) the Net Settlement Amount for
Customer, plus (b) the amount necessary to fund incoming Interchange
transactions not yet processed, determined in accordance with the FDR Settlement
Rules, minus (c) the amount previously advanced by Customer with respect to
prior incoming Interchange transactions for which processing is complete.
FAILURE TO TRANSFER. In the event of the failure of Customer on any business day
when required by the terms of this Agreement or the FDR Settlement Rules, to
transfer the Daily Amount to the Settlement Account, FDR may refuse, without
incurring any liability to Customer, to act as Customer's agent in discharging
any VISA or MasterCard Interchange obligations of Customer and shall have the
right to immediately notify MasterCard and VISA that it will no longer cause the
MasterCard or VISA Interchange obligations of Customer to be discharged. In
addition to the foregoing, FDR may take such actions with respect to Customer's
obligations under the Settlement System as FDR deems reasonable to protect FDR
or its customers from any loss arising from Customer's non-payment of the Daily
Amount.
Exh. F - 1
SETTLEMENT LATE PAYMENT FEE. In addition to any other provisions in this
Agreement, in the event of Customer's failure to transfer or make available the
Daily Amount for any business day, Customer shall pay to FDR a late payment fee
(the "Settlement Late Payment Fee") which shall be equal to the amount Customer
would have been required to pay as a late payment fee under MasterCard and VISA
rules. The amount shall be calculated in accordance with the rules and shall
continue to accrue until FDR shall have received the Daily Amount from Customer.
Settlement Late Payment Fees shall be paid to FDR based upon the rules even
though FDR may have elected to make settlement with MasterCard or VISA in a
timely manner on behalf of Customer. If FDR has received funds from VISA or
MasterCard as a result of Interchange Settlement on behalf of Customer and fails
to make available the Daily Amount to Customer, FDR shall pay to Customer a late
payment fee based on the Daily Amount calculated in the same manner as the
Settlement Late Payment Fee.
NO INDEPENDENT OBLIGATION. The obligation of FDR to discharge any VISA or
MasterCard Interchange obligations of Customer or Customer's Transaction Card
Affiliates shall be solely as an agent of Customer in accordance with the terms
and provisions of this Agreement and the FDR Settlement Rules. FDR shall have no
independent obligation with respect to the discharge of the Interchange
obligations of Customer.
VIOLATION OF RULES. In the event that MasterCard or VISA shall notify FDR of any
violation of the rules and regulations of MasterCard or VISA, relating to
Customer or transactions processed for Customer, FDR shall have the right,
without liability to Customer, to terminate Interchange Settlement of
transactions on behalf of Customer under this Agreement until the time as FDR
shall have been notified by MasterCard or VISA that the violation has been
corrected.
RELIANCE ON OTHER PARTIES. Customer acknowledges that performance of Interchange
Settlement involves the settlement of certain of Customer's transactions jointly
and on a combined net basis with the settlement of transactions of other
customers of FDR. Accordingly, the payment or receipt by FDR of settlement
monies on behalf of Customer may be dependent on equivalent payments or receipts
being received or made by or for other customers of FDR and in respect of
transactions involving Transaction Cards issued by such other customers. FDR and
Customer will cooperate and use all reasonable resources to identify the reason
for any settlement failure and shall attempt to work to its resolution.
COMPLIANCE WITH INSTRUCTIONS. FDR shall be entitled without further inquiry to
execute or otherwise act upon (a) instructions or information or purported
instructions or information received through the MasterCard and VISA payment
systems and instructions or information, or (b) purported instructions or
information received in accordance with the MasterCard and VISA rules or
settlement manuals otherwise than through the payment systems or in accordance
with the FDR Settlement Rules notwithstanding that it may afterwards be
discovered that the instructions or information were not genuine or were not
initiated by Customer. Such execution or action shall constitute a good
discharge to FDR, and FDR shall not be liable for any liability, damage,
expense, claim or loss (including loss of business, loss of profit or exemplary,
punitive, special, indirect or consequential damages of any kind) whatsoever
arising in whatever manner, directly or indirectly, from or as a result of the
execution or action.
Exh. F - 2
RESTRICTIONS ON SETOFF. Customer agrees to discharge its Interchange Settlement
obligations to FDR under this Exhibit F in full and on first written demand
waiving any defense, setoff or right of counterclaim (without prejudice to the
ability of Customer to pursue these independently) and notwithstanding any act
or omission or alleged act or omission or any insufficiency or deficiency that
there is or has been or that may be alleged in the performance by FDR of its
obligations under this Agreement or otherwise. FDR agrees, however, that it
shall not setoff against any payment to be made by it to Customer or on their
behalf pursuant to this Exhibit F any amount due and payable by Customer to FDR
(without prejudice to the ability of FDR to pursue these independently) other
than amounts due and payable by Customer or on their behalf to FDR pursuant to
this Exhibit F.
TRAILING ACTIVITY. If Customer terminates this Agreement or if Customer ceases
to obtain processing services from FDR under this Agreement in a manner which
results in fees or charges relating to Customer's Accounts continuing to be
included as a part of FDR's net settlement with MasterCard or VISA, FDR may
obtain daily payment from the Settlement Account established under the first
paragraph of this Exhibit F or Customer will provide FDR immediately upon notice
with access to an account of Customer's funds, not requiring signature, which
FDR may draw upon in order to receive payment for such fees and charges. FDR
will provide Customer with documentation for all fees and charges paid on behalf
of Customer.
DELETION, TRANSFER OR ABANDONMENT OF BINS AND ICAS. Customer will notify FDR in
writing at least one hundred twenty (120) days prior to any transfer or closing
of all Customer accounts on the FDR System associated with a BIN or ICA
belonging to Customer or the redirection of any BIN or ICA by Customer to
another processing system. Such notice shall include an instruction to FDR to
initiate a systematic removal from the FDR System of account information
associated with that BIN or ICA, which Customer shall be obligated to pay for in
accordance with Section 4.8 of this Agreement. Customer will comply with all
rules, regulations and policies of MasterCard and VISA with respect to removal
or deletion of unused or abandoned BINs or ICAs. In the event that Customer
fails to comply with such rules, regulations and policies, or fails to provide
the foregoing notice to FDR, Customer hereby authorized FDR, as its agent, to
(i) request MasterCard or VISA to delete the BIN or ICA, and (ii) remove all
account information associated with the BIN or ICA from the FDR System at
Customer's expense, in accordance with Section 4.8 of this Agreement. Customer
shall be responsible, and will reimburse FDR, for any loss, expense or other
cost associated with or arising from abandoned or unused BINs and ICAs,
including trailing activity, fraudulent use or other similar costs.
Exh. F - 3
EXHIBIT G
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PERFORMANCE GUIDELINES
1. AUTHORIZATION SYSTEM AVAILABILITY--SYSTEM
CRITERIA:
The time the authorization on-line system is available to respond to
Cardholder Authorization Inquiries.
STANDARD:
The authorization on-line system will be available via primary or backup
to respond to authorization inquiries 24 hours per day, 7 days per week
for 99% of the total minutes in the month.
2. ON-LINE AVAILABILITY
CRITERIA:
The production on-line system will be available for inquiry and
maintenance transactions, excluding scheduled maintenance or pre-notified
maintenance (including major implementations) during the specified
periods. Any problems (other than those noted) that impact Customer in
some way are considered an "outage" and are calculated as such. On-line
availablity is measured by the total number of minutes the production
on-line system is available.
STANDARD:
The production on-line system will be available for inquiry 98.5% of the
time.
3. ON-LINE SYSTEM UPDATED
CRITERIA:
The time all critical on-line files become current and available, for
that processing cycle, with monetary and non-monetary transactions. The
"common" on-line files are included in this measurement: Collections,
Memos, Aphas, B&S, CIS, Non-Mon display, Security.
Exh. G - 1
STANDARD:
The production on-line system will be updated and current for monetary
and non-monetary entry by 7 a.m. CTZ each processing day for 90% of that
month's processing days. This includes the "common" on-line files.
4. POSTINGS, MONETARY/NON-MONETARY
CRITERIA:
Monetary and/or non-monetary data files received from Customer.
Customer's data files will be received by FDR via one of three methods:
transmitted, mailed, or via courier.
Time of Receipt--The time Customer's last incoming file is received in
the Omaha Data Center. If the file is a transmitted file, the item the
transmission job completes in Omaha is the time of receipt for that file.
If the file is a mailed in or a courier file, the time of receipt is the
time the file actually is received in the Input/Output Control area with
the Omaha Data Center.
STANDARD:
Monetary and/or non-monetary files received in the Omaha Data Center by 5
p.m. CTZ will be processed in that night's production processing cycle
for 90% of the production cycles for the month and by the next night's
production processing cycle for 100% of the production cycles for the
month.
5. LETTERS--CARDHOLDER
CRITERIA:
This product is designed to afford Customer the ability to create
nonstatement correspondence to its Cardholders with state-of-the-art
forms design software that can print logos, signatures, and custom
formats.
STANDARD:
The volume of Letters mailed 50% by the end of the second (2nd) Business
Day, 98% by the end of the third (3rd) Business Day, 100% by the end of
the fourth (4th) Business Day for each month's volume, with the exception
of Customer caused delays such as holds, re-runs, incorrect file
settings, etc.
Exh. G - 2
6. STATEMENTS--CARDHOLDER
CRITERIA:
An indication of the number of Cardholder Statements that have been
printed and processed from the mail facility--the majority of which have
been zip sorted and turned over to the U.S. Postal Service for delivery
to Customer's Cardholders within the specified time frames.
STANDARD:
Cardholder Statements are mailed by the end of the third (3rd) Business
Day following Cycle Date for 75% of each month's volume, 95% by the end
of the fourth (4th) Business Day, and 100% by the end of the fifth (5th)
Business Day with the exceptions of Customer caused delays such as holds,
re-runs, incorrect file settings, etc.
7. CARDHOLDER STATEMENT/LETTER/NOTICE ACCURACY
CRITERIA:
Accuracy is based on the number of Cardholder Statements, Letters, and
Notices to the Cardholder that are correctly processed and mailed with
inserts, envelopes and forms.
STANDARD:
Statements, Letters, and Notices to the Cardholder are accurate for
99.95% of the items.
8. REPORTS--DAILY ON-LINE
CRITERIA:
On-line reports containing "daily" Customer information are available for
Customer viewing by 12 p.m. CTZ. These reports are verified with a time
stamp on WSF2EVT 1-3. Customer makes the determination as to which
reports are made available to it. The on-line information is based on the
previous day's business.
STANDARD:
"Critical" On-line reports are made available by 12 p.m. CTZ, on the
first Business Day following Cycle Date.
Exh. G - 3
9. REPORTS--MONTHLY ON-LINE
CRITERIA:
On-line reports containing "monthly" Customer information are available
for Customer viewing by the end of the fifth (5th) Business Day
following Cycle Date. These reports are verified with a time stamp on
WSF2EVT 1-3. Customer makes the determination as to which reports are
made available to it. The monthly on-line information is based on the
previous month's business.
STANDARD:
On-line reports are made available by the end of the fifth (5th) Business
Day following Cycle Date.
10. DAILY RMS TRANSMITTED REPORT FILES
CRITERIA:
Accurate Customer reports will be transmitted within the specified time
frame.
Standard:
Daily transmission files will be made available at a mutually agreed upon
time between FDR and Customer as report files are identified. The
standard time for availability will vary. This will be determined based
on the time the file is created within cycle.
11. MONTHLY RMS TRANSMITTED REPORT FILES
CRITERIA:
Accurate Customer reports will be transmitted within the specified time
frame.
STANDARD:
Monthly reports will be transmitted by the end of the fifth (5th)
Business Day following month end reports Cycle Date for 100% of each
month's volume.
Exh. G - 4
12. CD-ROM/DVD-ROM TIMELINESS
CRITERIA:
FDR's Digital ROM Services provider of original CD-ROM/DVD-ROM offering
media options to archive/retrieve/distribute statement, report, and other
information.
CD-ROM store over 100,000 Enterprise statements, and 250,000 report pages
per disc. Each disc contains free viewer software enabling Customer to
instantly query and alphanumeric item on the disc. No special hardware is
required.
STANDARD:
CD-ROM/DVD-ROM will be produced and mailed by the end of the fourth (4th)
Business Day following Cycle Date for 97% of each months volume. 100%
will be produced and mailed by the fifth (5th) Business Day.
13. ACCD TRANSMISSIONS
CRITERIA:
Automated Collection Call Distributor file produced by FDR for direct
transmission to Customer.
STANDARD:
95% of each months daily ACCD files will be available for transmission by
6:00 a.m. CTZ following the completion of daily processing.
14. EMBOSSING ORDERS
CRITERIA:
Cardholder embossing orders produced as a result of daily update cycle or
entered electronically will be mailed within the specific time frame.
This does not include plastic holds and plastic destruction requests by
the client and assumes purges are requested by 5 p.m. CTZ day 1.
STANDARD:
Cardholder embossing orders entered electronically will be mailed within
three Business Days for 95% of each month's volume.
Exh. G - 5
15. EMBOSSING ORDERS - REISSUES
CRITERIA:
The number of plastics mailed within the specific time frame.
STANDARD:
Cardholder reissued account plastics produced as a result of FDR's
monthly reissue programs will be mailed within fifteen (15) business days
after the automatic purge date established by Customer on the product
control file for 100% of Cardholder plastics scheduled for reissue each
month.
16. SETTLEMENT SCREENS
CRITERIA:
The update and release of the Customer's final daily settlement position
with FDR. Once these screens are updated and released, Customer can
access the information via the ZD09 and ZD16 screens.
STANDARD:
The final settlement wire transfer figure will be available to the client
by 12 p.m. CTZ 90% of the time and by 12:30 p.m. CTZ 100% of the time.
DEFINITIONS:
"Business Day" is defined as Monday through Friday. (with the exception of any
Federally observed holidays)
"CTZ" is Central Time Zone.
"Cycle Date" is defined as processing date.
Exh. G - 6
