Exhibit 10-u
EXECUTION COPY
SERVICE AGREEMENT
BETWEEN
FIRST DATA RESOURCES INC.
AND
ADVANTA BANK CORP.
DATED AS OF JANUARY 1, 2002
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ................................................ 1
ARTICLE 2 SERVICES ................................................... 6
2.1 BASE SERVICES .............................................. 6
2.2 COMMUNICATION LINKS ........................................ 6
2.3 NEW PRODUCTS AND SERVICES .................................. 6
2.4 PROGRAMMING SERVICES ....................................... 6
2.5 COMPLIANCE WITH LAWS ....................................... 7
2.6 PRIVACY OF PERSONAL FINANCIAL INFORMATION .................. 8
2.7 THIRD-PARTY SOFTWARE ....................................... 8
2.8 ENHANCEMENTS ............................................... 9
ARTICLE 3 EXCLUSIVITY AND EXECUTION BY AFFILIATES .................... 10
3.1 SOLE AND EXCLUSIVE PROVIDER ................................ 10
3.2 EXECUTION OF AGREEMENT BY CUSTOMER'S AFFILIATES ............ 11
3.3 ACQUISITION OF PORTFOLIOS OR ENTITIES SERVICED BY FDR ...... 11
3.4 ACQUISITION OF PORTFOLIOS OR ENTITIES NOT SERVICED BY FDR .. 11
3.5 MERGER OR CHANGE OF CONTROL ................................ 12
3.6 DISPOSITION OF TRANSACTION CARD ACCOUNT PORTFOLIOS ......... 12
3.7 POSSIBLE PRICE ADJUSTMENT .................................. 12
ARTICLE 4 PAYMENT FOR SERVICES ....................................... 12
4.1 FEES AND CHARGES ........................................... 12
4.2 PRICE INCREASES ............................................ 13
4.3 METHOD OF PAYMENT .......................................... 14
4.4 INTEREST ................................................... 14
4.5 MINIMUM FEES ............................................... 14
4.6 TAXES ...................................................... 14
4.7 GROWTH CREDIT .............................................. 15
4.8 ADDITIONAL CREDIT .......................................... 15
ARTICLE 5 INDEMNIFICATION ............................................ 16
5.1 CUSTOMER'S INDEMNIFICATION ................................. 16
5.2 FDR'S INDEMNIFICATION ...................................... 16
5.3 NOTIFICATION ............................................... 17
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5.4 CLAIMS PERIOD .............................................. 17
ARTICLE 6 LIMITATION OF LIABILITY .................................... 18
6.1 LIMITATION ON LIABILITY .................................... 18
6.2 NO SPECIAL DAMAGES ......................................... 18
ARTICLE 7 DISCLAIMER OF WARRANTIES ................................... 19
ARTICLE 8 TERM OF AGREEMENT .......................................... 19
8.1 TERM ....................................................... 19
8.2 RENEWAL .................................................... 19
ARTICLE 9 TERMINATION ................................................ 19
9.1 TERMINATION OF AGREEMENT BY FDR ............................ 19
9.2 TERMINATION BY CUSTOMER .................................... 20
9.3 EFFECT OF TERMINATION ...................................... 21
9.4 PAYMENTS UPON TERMINATION .................................. 21
9.5 LIQUIDATED DAMAGES ......................................... 22
9.6 DECONVERSION ............................................... 23
ARTICLE 10 CONFIDENTIAL NATURE OF DATA ................................ 23
10.1 CUSTOMER'S PROPRIETARY INFORMATION ......................... 23
10.2 FDR'S PROPRIETARY INFORMATION .............................. 24
10.3 CONFIDENTIALITY OF AGREEMENT ............................... 24
10.4 CONFIDENTIALITY ............................................ 25
10.5 RELEASE OF INFORMATION ..................................... 25
10.6 EXCLUSIONS ................................................. 25
10.7 REMEDY ..................................................... 26
ARTICLE 11 REPRESENTATIONS ............................................ 26
11.1 FDR'S REPRESENTATIONS ...................................... 26
11.2 CUSTOMER'S REPRESENTATIONS ................................. 27
ARTICLE 12 TRANSACTION SETTLEMENT ..................................... 27
12.1 INTERCHANGE SETTLEMENT ACCOUNT ............................. 27
12.2 TRANSFER OF FUNDS .......................................... 27
12.3 DAILY AMOUNT ............................................... 28
12.4 FAILURE TO TRANSFER ........................................ 28
12.5 SETTLEMENT LATE PAYMENT FEE ................................ 28
12.6 NO INDEPENDENT OBLIGATION .................................. 28
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12.7 VIOLATION OF RULES ......................................... 28
12.8 RELIANCE ON OTHER PARTIES .................................. 29
12.9 COMPLIANCE WITH INSTRUCTIONS ............................... 29
12.10 RESTRICTIONS ON SETOFF ..................................... 29
12.11 TRAILING ACTIVITY .......................................... 29
12.12 DELETION, TRANSFER OR ABANDONMENT OF BINS AND ICAS ......... 29
ARTICLE 13 PERFORMANCE STANDARDS ...................................... 30
13.1 FDR'S PERFORMANCE .......................................... 30
13.2 PERFORMANCE REPORTS ........................................ 30
ARTICLE 14 GENERAL .................................................... 31
14.1 ASSIGNMENT ................................................. 31
14.2 RELATIONSHIP OF PARTIES .................................... 32
14.3 BUSINESS CONTINUITY PLAN ................................... 32
14.4 STATE LAW .................................................. 32
14.5 NOTICE ..................................................... 33
14.6 HEADINGS ................................................... 33
14.7 WAIVER ..................................................... 34
14.8 FORCE MAJEURE AND RESTRICTED PERFORMANCE ................... 34
14.9 SEVERABILITY ............................................... 34
14.10 AUDIT ...................................................... 34
14.11 RISK OF LOSS ............................................... 34
14.12 EQUAL EMPLOYMENT OPPORTUNITY ............................... 35
14.13 INFORMAL DISPUTE RESOLUTION ................................ 35
14.14 ARBITRATION ................................................ 35
14.15 JUDICIAL PROCEDURE ......................................... 37
14.16 FEDERAL ARBITRATION ACT .................................... 37
14.17 SERVICE SUPPORT; MEETINGS .................................. 37
14.18 ENTIRE AGREEMENT ........................................... 38
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EXHIBITS
Exhibit Title
------- -----
A Services and Fees
B CCAD Implementation
C Performance Standards
D Customer's Affiliate Agreement
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SERVICE AGREEMENT
This Service Agreement dated as of January 1, 2002 (the "Agreement") is
between Advanta Bank Corp., 00000 Xxxxx Xxxxxxxx Xxxx, Xxxx Xxxx Xxxx, Xxxx
00000 ("Customer") and First Data Resources Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 ("FDR").
RECITALS
WHEREAS, FDR is willing to continue to perform data processing and other
related services for the Transaction Card businesses of Customer in accordance
with the terms and conditions of this Agreement, including the acknowledgment of
Customer that FDR is acting solely as an agent in performing the settlement
functions set forth herein and that FDR has no obligation to supply or advance
funds for settlement purposes.
NOW, THEREFORE, Customer and FDR, in consideration of the foregoing
premises and of the mutual covenants and conditions hereinafter set forth,
intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions apply to the terms set forth below when used in
this Agreement:
1.1 "AAA" is defined in Section 14.14(a) of this Agreement.
1.2 "Acquire(s)" means an acquisition, directly or indirectly, of an
interest through purchase, exchange or other acquisition of assets, stock or
other equity interests, any merger or consolidation or any similar transactions.
1.3 "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.
1.4 "Adjusted Gross Processing Fees" means the aggregate amount of
Processing Fees which would have been charged to Customer for services rendered
to Customer and its Affiliates by FDR during a Processing Year based upon the
fees and charges set forth in Exhibit A, without any adjustment for discounts or
credits permitted under this Agreement. Despite the foregoing, Adjusted Gross
Processing Fees shall not include any amounts represented by Processing Fees
associated with the services marked with an asterisk in Exhibit A.
1.5 "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 the case may be but,
with respect to Customer, means only those Affiliates Acquired by Customer after
the execution of this Agreement.
1.6 "Agreement" shall mean this Service Agreement as amended from time to
time including any Exhibits attached hereto from time to time.
1.7 "Arbitration Demand" is defined in Section 14.14(b) of this Agreement.
1.8 "Arbitration Panel" is defined in Section 14.14(b) of this Agreement.
1.9 "Basic Qualifications" is defined in Section 14.14(b) of this
Agreement.
1.10 "Business Continuity Plan" is defined in Section 14.3 of this
Agreement.
1.11 "Cardholder" means an individual or Entity which has a Cardholder
Account with an Issuer.
1.12 "Cardholder Account" means an arrangement between an individual or an
Entity and an Issuer which provides that the individual or the Entity may use
one or more Transaction Cards issued by the Issuer.
1.13 "CCAD Implementation" means the implementation of the Commercial Card
Regroup Request (Program Request No. C2A0007).
1.14 "Control" means the direct or indirect ownership of a majority of an
Entity's outstanding capital stock (or other form of ownership) and/or a
majority of the voting power in any election of directors.
1.15 "CPI" is defined in Section 4.2 of this Agreement.
1.16 "Customer" means Advanta Bank Corp. and Affiliates of Customer who
have entered into an Affiliate Agreement pursuant to Section 3.2.
1.17 "Customer's Agent Bank" means an Entity which at any time during the
Term of this Agreement has an arrangement with Customer which (a) permits the
Entity to act as an Issuer or an Acquirer and obtain services related to the
activities from Customer, or (b) provides that an Entity may act as an Issuer or
Acquirer in conjunction with Customer.
1.18 "Customer's Accounts" means the Cardholder Accounts of Customer.
1.19 "Customer's Masterfiles" is defined in Section 10.1 of this
Agreement.
1.20 "Customer's Proprietary Information" is defined in Section 10 of this
Agreement.
1.21 "Daily Amount" is defined in Section 12 of this Agreement.
1.22 "Deconversion" means the removal of information concerning Customer's
Accounts from the FDR System.
1.23 "Dispute" is defined in Section 14.13 of this Agreement.
1.24 "Disputing Party" is defined in Section 14.14(a) of this Agreement.
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1.25 "Entity" means a corporation, partnership, sole proprietorship, joint
venture, or other form of organization.
1.26 "Failed Month" is defined in Section 13.2 of this Agreement.
1.27 "FDR" means First Data Resources Inc.
1.28 "FDR Processed Portfolio" is defined in Section 3.3 of this
Agreement.
1.29 "FDR's Proprietary Information" is defined in Section 10 of this
Agreement.
1.30 "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 contemplated by this Agreement.
1.31 "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.
1.32 "Former Transaction Card Accounts" is defined in Section 3.6 of this
Agreement.
1.33 "Indemnified Party" is defined in Section 5 of this Agreement.
1.34 "Indemnifying Party" is defined in Section 5 of this Agreement.
1.35 "InfoSight Software" is defined in Section III. A of Exhibit "A" to
this Agreement.
1.36 "Insolvency Event" occurs, with respect to any party, when such
party:
(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).
1.37 "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.
1.38 "Interchange Settlement" means the process by which FDR, on behalf of
Customer, (a) initiates payment for MasterCard and VISA Transaction Card Tickets
presented by
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Acquirers to Customer, (b) receives payment for MasterCard and VISA Transaction
Card Tickets presented by Customer to Issuers, and (c) remits and receives
payments for chargebacks and other Interchange fees and expenses of or payable
by Customer.
1.39 "Issuer" means an Entity that has a Cardholder Account with a
Cardholder.
1.40 "Liquidated Damages" is defined in Section 9.5 of this Agreement.
1.41 "MasterCard" means MasterCard International Incorporated or its
successors or assigns.
1.42 "Merchant" means an Entity that has the right to acquire or otherwise
acquires a Transaction Card Ticket as payment for goods, services, or otherwise.
1.43 "Minimum Fee Shortfall" is defined in Section 4.5 of this Agreement.
1.44 "Minimum Processing Fees" is defined in Section 4.5 of this
Agreement.
1.45 "Monthly Processing Fees" is defined in Section 13.2 of this
Agreement.
1.46 "Net Settlement Amount" means the net dollar amount for each business
day of FDR of all (a) transactions processed for Customer 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
(c) account expenses including overdraft charges, activity charges, wire
transfer fees and other charges relating to Customer.
1.47 "Non FDR Agreement" is defined in Section 3.4 of this Agreement.
1.48 "Non FDR Processed Portfolio" is defined in Section 3.4 of this
Agreement.
1.49 "Old Year" is defined in Section 4.2 of this Agreement.
1.50 "Oracle" is described in Section III. A of Exhibit "A" to this
Agreement.
1.51 "Original Term" means the first four Processing Years during which
this Agreement is effective.
1.52 "Other Agreement" is defined in Section 3.3 of this Agreement.
1.53 "Performance Standards" is defined in Section 13.1 of this Agreement.
1.54 "Pilot Program" is defined in Section 2.3 of this Agreement.
1.55 "Processing Fees" means all fees and charges incurred for services
performed at the prices set forth in Exhibit "A" (including any Minimum 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.
1.56 "Personal Information" is defined in Section 2.6 of this Agreement.
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1.57 "Processing Year" is defined in Section 8.1 of this Agreement.
1.58 "Processing Year 1" is defined in Section 8.1 of this Agreement.
1.59 "Purchaser" is defined in Section 3.3 of this Agreement.
1.60 "Renewal Term" is defined in Section 8.2 of this Agreement.
1.61 "Seller" is defined in Section 3.3 of this Agreement.
1.62 "Services" is defined in Section 3.1 of this Agreement.
1.63 "Settlement Account" is defined in Section 12.1 of this Agreement.
1.64 "Settlement Late Payment Fee" is defined in Section 12.5 of this
Agreement.
1.65 "Settlement System" is defined in Section 12 of this Agreement.
1.66 "SLA" is defined in Section 13.2 of this Agreement.
1.67 "Special Fees" means the tariff line rates, WATS lines rates, data
circuit charges or any other rates charged to FDR by a communications common
carrier, the United States Postal Service, any courier or other provider of
similar services, and any other charges and methods of reimbursement described
in Sections V and VI of Exhibit "A".
1.68 "Standard Conversion Activities" means Data Mapping of files,
Conversion Mock, Conversion of files, Balancing Reports, Telecom Connectivity,
Training and Documentation, Standard Program Requests: Statement, Embossing/Card
Carrier Formats, Interface files in FDR Formats, ICASUBBY; and Custom
Development as appropriate to provide existing Customer processing capabilities.
1.69 "Standard Transfer Activities" means ICASUBBY, Transfer Mock,
Transfer Balancing Reports, Cross Reference Build (if applicable) and Custom
Development as appropriate to provide existing Customer processing capabilities.
1.70 "Surviving Entity" is defined in Section 3.5 of this Agreement.
1.71 "Term" means the Original Term together with any Renewal Term or any
other extension of this Agreement.
1.72 "Total Annual Processing Fees" is defined in Section 4.5 of this
Agreement.
1.73 "Transaction Card" means a payment card issued by an Issuer pursuant
to a license from MasterCard, VISA or any other card-issuing organization for
which FDR currently provides service support. This shall include any small
business account card, purchasing account card or corporate travel and expense
card program offered by Customer for which FDR provides processing services.
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1.74 "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.
1.75 "Unique Product" is defined in Section 3.1 of this
Agreement.
1.76 "VISA" means, individually or collectively, as appropriate, VISA
U.S.A. Inc. or VISA INTERNATIONAL or either of their successors or assigns.
ARTICLE 2
SERVICES
2.1 BASE SERVICES. FDR shall make available to and perform for Customer
the services described in Exhibit "A", except that the services described in
subsection (B) of Part IV of Exhibit A, though available for use by Customer,
are not utilized by Customer as of the date of this Agreement. Exhibit "A", as
may be agreed by FDR and Customer, and any document or service referred to as
Exhibit "A" shall be subject to revision by the mutual agreement of the parties
from time to time during the Term of this Agreement to reflect changes and
improvements to the FDR System or the services provided by FDR and offered
generally to FDR customers and to reflect any changes and improvements in the
specific services provided to Customer. Additionally, and without limiting the
generality of the foregoing, following completion of each of the first three
months of the provision of services pursuant to this Agreement, the parties will
review the services provided and will jointly address the possibility of
revising Exhibit A, Part IV.
2.2 COMMUNICATION LINKS. FDR from time to time 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 and Customer mutually determine is
required to perform this Agreement. The method of transmission and the media
employed will be determined by FDR and Customer 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 NEW PRODUCTS AND SERVICES. (a) FDR hereby agrees that if, during the
Term of this Agreement, FDR initiates a program with one or more customer(s) to
review, modify, test and enhance any new service or product which FDR intends to
offer generally to its customers, then FDR shall allow Customer the opportunity
to participate in such program (the "Pilot Program").
(b) FDR hereby agrees that if, during the Term of this Agreement, FDR
offers generally to its customers any new service or product without the
establishment of a Pilot Program, then FDR shall notify Customer at the same
time that FDR first notifies its other customers of such new service or product
and when Customer commences to use such new service or product, Customer shall
pay for such service or product at the then current standard rate.
2.4 PROGRAMMING SERVICES. FDR shall perform, at its expense, the computer
programming services necessary to effect the CCAD Implementation in accordance
with
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Exhibit B attached hereto. Additionally, in connection with the services
provided by FDR pursuant to the terms of this Agreement, FDR shall perform, at
its expense, up to 1,000 hours of computer programming services during each of
Processing Years 2, 3 and 4 of this Agreement ("Free Programming"). FDR shall
charge, and Customer shall pay, $125 per hour for each hour of computer
programming services provided by FDR at the request of Customer in excess of
1,000 hours during a Processing Year. Unused hours of programming services from
one Processing Year shall not be carried forward into any other Processing Year.
2.5 COMPLIANCE WITH LAWS. (a) Customer has reviewed the parameter settings
and options within the FDR System, as described in the User Manuals set forth in
Exhibit "A", Section I (which User Manuals are represented by FDR to be accurate
and complete), and has determined that FDR's System provides such features and
options which will, if properly selected by or on behalf of Customer, allow
Customer to comply with all applicable federal and state laws and contractual
agreements of Customer other than agreements with MasterCard, VISA or other
card-issuing organizations. To the extent that Customer notifies FDR of any
change in federal and state law, subject to the limitations set forth below, FDR
agrees at its expense to develop reasonable enhancements to the FDR System
responsive to the identified change in federal and state law as specifically
requested by Customer. The obligation of FDR set forth in the previous sentence
is subject to the following limitations:
(i) the change in federal and state law is generally applicable
and does not relate solely to a requirement or preference of
Customer;
(ii) if the responsive enhancement requested by Customer is
consistent with the response requested by the majority of the
affected client base, development of an enhancement responsive
to the change in law shall satisfy FDR's obligations under
this subsection (a);
(iii) upon receipt of notice of the change in law with a detailed
explanation of the enhancement Customer deems necessary to
allow compliance with law, FDR will proceed diligently and in
good faith to develop and implement an appropriate enhancement
as soon as reasonably practicable and no later than 60 days
after receipt of such notice FDR will submit to Customer a
functional design of the requested enhancement, including
specified time frames for implementation to which FDR will
adhere;
(iv) FDR shall have a reasonable time from the date Customer
notifies FDR of the change in law and specifies the requested
enhancement in which to design, code, test and implement the
enhancement (in the determination of reasonableness, the
extent and impact of the change in law on the FDR client base,
the relative importance of other enhancements, the complexity
of the enhancement, and related issues of impact and resource
allocation and the effective date of the change in law shall
be considered); and
(v) the responsive enhancement requested by Customer does not
impose a burden on FDR (or the FDR System) to determine facts
not available on the FDR System, to make legal interpretations
or conclusions with respect
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to state or federal law, or to in any way shift Customer's
compliance responsibility to FDR.
(b) Customer acknowledges and agrees that it is solely responsible for
monitoring legal developments applicable to the operation of its business and
Transaction Card operations, interpreting applicable state and federal laws,
determining the requirements for compliance with all applicable state and
federal laws, and maintaining an ongoing compliance program. Customer
acknowledges that, while FDR advises its customers on compliance with
Association (VISA and MasterCard) rules, FDR provides Transaction Card
processing services to financial institutions chartered and regulated by various
state and federal agencies and nonfinancial institutions subject to different
regulatory oversight such that FDR cannot reasonably be expected to monitor or
interpret the laws applicable to its diverse customer base, or provide
compliance services to customers with respect to such laws. Consequently,
Customer agrees that FDR has no responsibility to monitor or interpret laws
applicable to Customer's business, to monitor or review the terms and conditions
of Customer's Transaction Card programs or Customer's selection of system
options and programming, or to assure that Customer's selection of any system
option or programming (either alone or acting in conjunction with other system
options and programming selected by Customer) is consistent with laws applicable
to Customer or the terms and conditions of Customer's credit agreements with, or
disclosure to, its Cardholders.
(c) FDR shall be entitled to rely upon and use, without verification, any
and all information, data and instructions at any time submitted to FDR by
Customer having to do with Customer or Customer's Accounts, and FDR shall have
no responsibility or liability whatsoever for (i) the accuracy or inaccuracy
thereof, (ii) the wording or text authored or submitted by Customer to FDR, for
materials to be prepared or for other purposes, (iii) the wording or text
appearing on any forms, Transaction Cards or other materials furnished by
Customer to FDR, or (iv) any noncompliance of such information, data,
instruction, wording or text with applicable laws, or governmental rules or
regulations.
2.6 PRIVACY OF PERSONAL FINANCIAL INFORMATION. FDR and Customer
acknowledge the sensitivity and confidentiality of personal consumer financial
information which may be contained in Customer's Proprietary Information,
including all personally identifiable information relating to an individual
consumer in connection with a Customer's Account, any application for a
Customer's Account or the marketing or promotion of Customer's Accounts
("Personal Information"). In addition to the obligations of the parties under
Article 10, FDR and Customer acknowledge the protections afforded by law to such
Personal Information and each agrees to comply with all such legal requirements
applicable to it in the performance of its obligations under this Agreement.
Specifically, Customer represents and warrants to FDR that Customer has provided
all required notices, opt-outs, opt-ins or other similar rights to consumers
with respect to any Personal Information delivered, transmitted or disclosed in
any other fashion (i) by Customer or its agents or representatives to FDR or its
agents and representatives, (ii) by FDR to any third party at the direction of
Customer, and (iii) with respect to each of the services provided by FDR under
this Agreement.
2.7 THIRD-PARTY SOFTWARE. It is understood that certain third-party
licensed software will be acquired or provided to Customer for use in connection
with the services described in the
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Agreement. FDR agrees to and does hereby pass through to Customer any warranties
and indemnities provided by the third-party software vendors or suppliers that
are capable of being passed through. FDR agrees, to the extent reasonable and
practicable, to diligently exercise its rights relative to said third-party
licensed software for the benefit of Customer and to pass the allocable benefits
of any such exercise through to Customer.
2.8 ENHANCEMENTS. (a) 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 written specifications acceptable to and approved
by FDR, acting in good faith; and, except with respect to the Free Programming,
payment by Customer of FDR's development charges), FDR shall develop and
implement each such Enhancement pursuant to terms, conditions and specifications
mutually agreed to by the parties in writing prior to FDR's commencing work on
the Enhancement. Such written terms and conditions may, but need not
necessarily, include a period during which the Enhancement will be used solely
by and for the benefit of Customer. FDR will consider all such Customer requests
for Enhancement exclusivity periods in good faith. The parties understand and
agree that FDR is under no obligation to develop or implement any Enhancement if
terms and conditions (including specifications) acceptable to FDR, acting in
good faith, cannot be agreed to. Customer has the right, upon notice and at all
reasonable times and subject to applicable FDR confidentiality and security
policies, procedures and restrictions, to inspect the results of the Enhancement
development and implementation services provided by FDR. Enhancements shall be
accepted only upon written notice of acceptance from Customer, which may only be
withheld for their material failure to comply with applicable specifications.
Such specifications shall be agreed to by the parties in writing prior to FDR's
commencing work on the Enhancement. FDR shall promptly correct any such defects
at its own expense as a condition of Customer's acceptance. Timing of any
Enhancement is subject to scheduling and prioritization by FDR of FDR's
available resources; provided, however, that FDR shall comply with all
applicable milestones and deadlines agreed to by the parties in writing. The FDR
System and any Enhancements shall remain solely the property of FDR, and, except
for the license provided pursuant to Section 2.8(b), Customer shall acquire no
right, claim or interest in the FDR System or any Enhancement.
(b) With respect to Enhancements either paid for by Customer or developed
for Customer using the Free Programming, FDR hereby grants to Customer a
worldwide, perpetual, non-exclusive, non-transferable (except as permitted in
Section 14.1 below) license to use said Enhancements (including, without
limitation, any ideas, concepts, inventions, know-how, drawings, specifications,
flowcharts and other documentation that are conceived, created or reduced to
practice by FDR as a result of the development and/or implementation of said
Enhancements) for its internal business and that of its Affiliates; provided,
however, that the license does not extend to or include any other part of the
FDR System, or any third-party software or other third-party intellectual
property that is a part of said Enhancements, which such third-party software or
other third-party intellectual property will be identified to Customer by FDR in
writing upon FDR's completion of the design specification process. Apart from
this limited license to use certain parts of certain Enhancements, nothing in
this Section shall be deemed to grant Customer any right to use the FDR System
other than as specifically allowed in this Agreement. Nor shall anything in this
Section be deemed to grant FDR any rights in Customer's Proprietary Information
other than those specifically allowed in this Agreement. For
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the avoidance of doubt, the CCAD Implementation shall not be considered an
Enhancement for purposes of this Agreement.
ARTICLE 3
EXCLUSIVITY AND EXECUTION BY AFFILIATES
3.1 SOLE AND EXCLUSIVE PROVIDER. (a) Except with respect to Excluded
Arrangements, during the Term of this Agreement, (i) FDR shall be the sole and
exclusive provider, in North America, to Customer of all Core Processing
Services; (ii) Customer shall not, in North America, perform or provide any Core
Processing Services for Customer without the consent of FDR; and (iii) Customer
shall not agree with any third party to have such third party perform or
provide, in North America, any Core Processing Services to Customer. An
"Excluded Arrangement" is a written agreement between Customer and an Entity
other than FDR, meeting all the following criteria: (i) it is entered into with
an Issuer whose transactions are not processed by FDR, with respect to the
issuance of Transaction Cards outside the United States; (ii) it is entered into
following the date of this Agreement; (iii) it is entered into for purposes of
facilitating Customer's Transaction Card issuing capabilities outside the United
States. "Core Processing Services" means the Services marked with an "X" on
Exhibit A, to the extent provided by FDR and used by Customer on the date of
this Agreement with respect to Transaction Cards issued by Customer pursuant to
a license from VISA or Master Card. The sole and exclusive rights of FDR set
forth in this Agreement shall be limited to the Services marked with an "X" on
Exhibit A.
(b) If, after the execution of this Agreement, Customer requires any
transaction processing services or products related to Customer's Transaction
Card business not required by Customer on the date of this Agreement, Customer
grants FDR an opportunity to bid on the provision of such services or products.
If FDR's proposal is acceptable to Customer (including with respect to the cost,
quality and time periods requested by Customer), FDR shall provide such services
or products on terms and conditions to be mutually agreed upon. If FDR's
proposal is not acceptable, then Customer may perform or provide for itself, or
have a third party perform or provide, the service or product.
(c) Nothing in this Agreement shall be deemed to prevent Customer from
receiving data from the FDR System on a daily, weekly and/or monthly basis to be
loaded into Customer's data warehouse for reporting, analytical and marketing
purposes, or to support Customer's operational processes, including, without
limitation, Customer's voice response units, Cardholder website, collections
dialer, and other user interfaces. In addition, nothing in this Section 3.1
shall be deemed to prevent Customer from (i) granting its third-party vendors
controlled access to certain Customer data on the FDR System from a
Customer-defined screen, (ii) delivering customer files from its data warehouse
to third parties for the purpose of producing and distributing marketing offers
to customers, or (iii) sending Customer data retrieved from the FDR System to
third parties for assistance in model development or other analytical purposes.
Notwithstanding the foregoing, nothing in this subsection (c) shall: (i) limit
or alter, by implication or otherwise, the undertakings and obligations of the
parties as set forth in this Agreement, specifically including but not limited
to those set forth in Section 2.6, Article 5 and Article 10; or (ii) create any
license or rights by implication, estoppel or otherwise under any patents or
other intellectual property rights owned or licensed by FDR.
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3.2 EXECUTION OF AGREEMENT BY CUSTOMER'S AFFILIATES. If, after the
execution of this Agreement, Customer Acquires one or more Affiliates, each such
Affiliate shall become subject to this Agreement. Each such Affiliate which has
a Bank Identification Number (BIN) with VISA or an Interbank Clearing Account
(ICA) with MasterCard which is different from that of Customer shall become a
party to this Agreement by signing a Customer's Affiliate Agreement
substantially similar to the one set forth as Exhibit "D". Customer and each of
Customer's Affiliates which executes a Customer's Affiliate Agreement, in
addition to the terms of the Customer's Affiliate Agreement, agree that:
(a) Customer shall have full authority to represent Customer's Affiliates
and to act fully on Customer's Affiliates' behalf in connection with this
Agreement and the Customer's Affiliate Agreement including the negotiation with
FDR of any amendments, extensions or revisions of this Agreement or the
Customer's Affiliate Agreement, the assertion, negotiation and resolution of any
controversy, dispute or claim under this Agreement or the Customer's Affiliate
Agreement and the execution or delivery of any documents.
(b) If Customer shall fail to pay any amounts due under this Agreement,
including but not limited to any Processing Fees, Special Fees, Liquidated
Damages or other fees, taxes, interest payments, charges or amounts due or
payable by Customer, each of Customer's Affiliates shall pay FDR on demand the
portion of the amounts due from Customer to FDR for services performed by FDR
for or on behalf of such Customer's Affiliate including a percentage of any
applicable Liquidated Damages, which approximates the percentage that the
Processing Fees relating to processing for such Customer's Affiliate are of the
total Processing Fees under this Agreement. Processing Fees paid by Customer's
Affiliates shall count against the Customer's Minimum Processing Fees
requirement.
3.3 ACQUISITION OF PORTFOLIOS OR ENTITIES SERVICED BY FDR. If, after the
execution of this Agreement, Customer Acquires (i) any Transaction Card Accounts
from an Entity (a "Seller") (other than in connection with the acquisition of
Seller) or (ii) an Entity, in either case for which FDR then provides services
similar to the Services then being performed by FDR for Customer (an "FDR
Processed Portfolio"), then FDR shall continue to perform such services pursuant
to the then governing services agreement (the "Other Agreement") through its
expiration date. On the expiration or termination of the Other Agreement, the
FDR Processed Portfolio shall be processed in accordance with the terms of this
Agreement. The transfer of the FDR Processed Portfolio from the Seller's
masterfiles on the FDR System to the Purchaser's masterfiles on the FDR System
shall occur as soon as practicable. However, Customer may terminate the Other
Agreement prior to its expiration date and process the FDR Processed Portfolio
under this Agreement, provided, however, that the Seller or Customer (in the
case of an acquired Entity) shall remain liable for the payment of any amounts
owed FDR under the Other Agreement by reason of such termination or otherwise.
Customer and FDR shall share the costs of Standard Transfer Activities relating
to such FDR Processed Portfolio on a 50/50 basis.
3.4 ACQUISITION OF PORTFOLIOS OR ENTITIES NOT SERVICED BY FDR. If, after
the execution of this Agreement, Customer Acquires (i) any North American
Transaction Card Accounts from a Seller (other than in connection with the
acquisition of Seller) or (ii) an Entity based in North America, in either case
for which FDR does not provide services similar to the Services then being
performed by FDR for Customer (a "Non FDR Processed Portfolio"),
11
Customer shall convert such Non FDR Processed Portfolio to the FDR System within
twelve (12) 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 Non FDR Processed Portfolio from another party (a "Non FDR Agreement"),
upon the expiration of the then remaining term of the Non FDR Agreement,
whichever is later. However, if the Non FDR Agreement permits early termination
upon payment of specified termination fees, Customer and FDR will agree to
terminate the Non FDR Agreement prior to its expiration and to have FDR provide
Services for the Non FDR Processed Portfolio under this Agreement if FDR pays
any termination fees required under such Non FDR Agreement, unless Customer, in
its good faith judgment, requests a deferral of conversion for a period not to
exceed six (6) months. Customer and FDR shall share, on a 50/50 basis, the costs
and expenses of Standard Conversion Activities with respect to the conversion of
the Non FDR Processed Portfolio to the Purchaser's masterfiles on the FDR
System.
3.5 MERGER OR CHANGE OF CONTROL. If there is a change of Control of
Customer or if Customer is merged into an Entity and such Entity is the survivor
of such merger (in either case, the "Surviving Entity"), then the provisions of
this Agreement shall continue to apply to all Transaction Card Accounts then
processed under this Agreement, but not to other Transaction Card Accounts of
the Surviving Entity or any of its affiliates. Except as otherwise set forth in
this Section 3.5, (i) as Customer's successor-in-interest, the Surviving Entity
shall continue to be bound by Customer's obligations hereunder and (ii) there
shall be no reduction in the Minimum Processing Fees set forth in Section 4.5.
3.6 DISPOSITION OF TRANSACTION CARD ACCOUNT PORTFOLIOS. Upon the sale of
all or any portion of Customer's Transaction Card Accounts (the "Former
Transaction Card Accounts") FDR will no longer be obligated to provide services
for the Former Transaction Card Accounts pursuant to this Agreement and there
shall be no reduction in the Minimum Processing Fees set forth in Section 4.5;
provided, however, that Customer shall receive credit against the Minimum
Processing Fees in the amount of fees paid by the successor if the accounts are
processed by FDR for the successor under terms and conditions substantially
similar to the terms and conditions set forth in this Agreement.
3.7 POSSIBLE PRICE ADJUSTMENT. If at any time while this Agreement is in
effect the number of Transaction Card Accounts processed by FDR under this
Agreement substantially increases as a result of the acquisition by Customer of
one or more Entities or portfolios of Transaction Card Accounts, then FDR will,
at the request of Customer, negotiate in good faith with Customer with a view
toward adopting a modification of the fees and charges hereunder that gives
reasonable and appropriate effect to the increased processing activity and any
material unit cost reductions resulting therefrom.
ARTICLE 4
PAYMENT FOR SERVICES
4.1 FEES AND CHARGES. The initial Processing Fees for the services to be
performed (or, in the case of subsection (B) of Part IV of Exhibit A, to be
performed only at and following such time as Customer requests their
performance) under this Agreement are set forth in Exhibit "A". Exhibit "A" also
contains initial prices to be charged or methods for computing
12
charges by FDR for Special Fees, such as, but not limited to reimbursements,
assessments and pass through fees.
4.2 PRICE INCREASES. (a) subject to the final sentence of this Section
4.2(a), FDR may increase the fees and charges set forth in Section IV of Exhibit
"A" by notice to Customer, as follows; provided, however, that FDR shall not be
allowed to increase such fees and charges at any time while this Agreement is in
effect, unless the percentage change in the Consumer Price Index ("CPI") during
the calculation period described below for any Processing Year of the Original
Term after Processing Year 1 thereof is greater than four percent (4%), in which
case FDR may increase the Processing Fees which were in effect for the
immediately preceding Processing Year (the "Old Year") by an amount not to
exceed in the aggregate three quarters (3/4) of the percentage change in the CPI
over four percent (4%) during a period described below; provided, however, that
in no event shall such increase be less than 0% nor more than 6%. For purposes
of this paragraph, the CPI shall be the index compiled by the United States
Department of Labor's Bureau of Labor Statistics, Consumer Price Index for All
Urban Consumers (CPI-U) having a base of 100 in 1982-84, using that portion of
the index which appears under the caption "All Items." The CPI percentage shall
be communicated to Customer within forty-five (45) days of the end of each
Processing Year. The CPI will be expressed as a percentage determined by simple
average over the twelve (12) month period of the prior year. Any such adjustment
to the Processing Fees will be effective on the first day of each Processing
Year. Notwithstanding the foregoing, the aggregate amount by which FDR may
increase the fees and charges set forth in Section IV of Exhibit A during the
Original Term shall be capped at nine percent (9%).
(b) If, at any time while this Agreement is in effect, there is a change
in the charges to FDR for items which are included in the Special Fees,
including tariff line rates, WATS lines rates, data circuit charges or other
rates charged to FDR by any communications common carrier, The United States
Postal Service, any courier or other provider of similar services, or if FDR
obtains communication or other services included in the Special Fees by another
method resulting in a change in the charges to FDR for the items, FDR shall
change by an equal amount the amount of Special Fees Customer is then paying FDR
for the items under this Agreement. If additional services are added which are
to be included in the Special Fees, FDR shall increase by an equal amount the
amount of the Special Fees Customer is then paying FDR for the items under this
Agreement, effective on the effective date of the increase to FDR, or add the
amount for the additional services effective on the beginning date of the
additional service.
(c) If, at any time while this Agreement is in effect, the prices charged
to FDR for forms associated with first class mailing should be changed by FDR's
then current forms vendor(s), then FDR shall have the right to change, by an
equal amount, the prices charged to Customer in Exhibit "A" which are impacted
by such change in forms costs, including but not limited to Cardholder and
Merchant Statements, Letters and Notices. Any such change shall be effective on
the effective date of the change to FDR.
(d) In determining increases pursuant to subsections (b) or (c) above,
credit shall be given for any incentives or special accommodations received by
FDR from its suppliers. FDR will give Customer 60 days prior notice of a change
in a significant supplier.
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4.3 METHOD OF PAYMENT. To facilitate the payment of Processing Fees,
Special Fees and any related tax payments due or payable to FDR under this
Agreement, Customer will 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 daily to pay Processing Fees, Special Fees and related tax payments
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 daily or monthly basis according to the nature of the transaction or charge
including, as applicable, the transaction types, prices, volumes and charges, or
the details of other fees, taxes, interest payments, charges or amounts.
4.4 INTEREST. If FDR is unable to obtain payment of Processing Fees,
Special Fees, Liquidated Damages 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, Liquidated Damages or other fee, tax, interest payment, charge or amount
shall bear interest, beginning on the date due, at The Wall Street Journal prime
rate as published from time to time, such rate to be adjusted automatically,
without notice, on the effective date of such change in rate, plus three percent
(3%) per annum. The Wall Street Journal prime rate is the "prime rate" (or high
point of any range of "prime rates") established for that date by the financial
institutions surveyed by The Wall Street Journal in publishing its "Money Rates"
(or any replacement) Table. The prime rate for any date will appear in The Wall
Street Journal on its first publication date after the particular date. If for
any reason no such information is published in The Wall Street Journal for four
consecutive days, and if the New York Times is then publishing a similar table
that only includes the "prime rates" of financial institutions surveyed by The
Wall Street Journal immediately prior to such time, the appropriate New York
Times table will be used until The Wall Street Journal resumes publishing the
necessary information. If neither newspaper publishes such information for four
consecutive days, Customer and FDR will select a substitute index that produces
a similar rate.
4.5 MINIMUM FEES. In Processing Year 1 of the Original Term, Customer will
require and shall pay FDR for processing services sufficient to generate
aggregate Processing Fees of at least $4,000,000. In each Processing Year after
Processing Year 1 of the Original Term and in the Renewal Term, Customer shall
pay FDR for processing services sufficient to generate aggregate Processing Fees
at least equal to the greater of (i) 80% of the Processing Fees paid during the
immediately preceding Processing Year and (ii) $4,000,000 (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 4.3 for the amount, if any, by which
the Minimum Processing Fees for the Processing Year exceed the Total Annual
Processing Fees for the Processing Year (such amount a "Minimum Fee Shortfall").
4.6 TAXES. (a) Customer shall, in addition to the other amounts payable
under this Agreement, pay all taxes, federal, state or otherwise, or duties,
imposts, fees or charges, however designated, which are levied or imposed by any
governmental authority by reason of the sale or license of any services,
communication equipment, software or other goods and products covered by this
Agreement except for income taxes payable by FDR on amounts earned by FDR.
14
Without limiting the foregoing, Customer shall promptly pay to FDR an amount
equal to any items actually paid or required to be collected or paid by FDR.
(b) Customer hereby authorizes FDR to calculate the total amount of sales
taxes due by Customer from the monies due FDR and remit the amount of sales
taxes to the appropriate taxing authority on behalf of Customer. FDR's
remittance of the sales taxes on behalf of Customer shall be computed by FDR on
the information available to FDR. FDR shall provide Customer with copies of all
such computations and records of payment. In the event of under or
overvaluations, as the case may be, Customer shall be responsible for any
additional monies due including any penalties or interest and for collecting any
refunds due to Customer from the appropriate taxing authority; provided,
however, that if the error is the result of the negligence of FDR, then FDR
shall be responsible for any penalties associated with such tax.
(c) Prior to FDR making the sales tax remittance on behalf of Customer
provided in Section 4.6(b), Customer agrees to supply FDR with any and all
current information necessary for FDR to compute and remit the taxes, including
any tax exempt certificate, any tax exempt claim letter, or evidence
satisfactory to FDR authenticating the exemption. At the time of the execution
of this Agreement, Customer's Tax Identification Number is 00-0000000.
4.7 GROWTH CREDIT. Within ninety (90) days after the end of each
Processing Year, FDR shall calculate the Adjusted Gross Processing Fees for such
Processing Year. If the Adjusted Gross Processing Fees for such Processing Year
is greater than $7,500,000, then Customer shall receive from FDR a credit or
credits for such Processing Year based on the following credit levels:
Adjusted Gross
Processing Fees Credit
--------------- ------
$0 -- $7,500,000 0%
$7,500,001 -- $9,000,000 5.0%
$9,000,001 -- $10,500,000 10.0%
$10,500,001 -- over 12.5%
For example, if Adjusted Gross Processing Fees for Processing Year 1 are
$11,000,000, Customer will be entitled to a credit of $1,375,000, or 12.5% of
the Adjusted Gross Processing Fees charged to Customer. The credit or credits,
computed as set forth in this Section 4.7, shall be applied by FDR against
future Processing Fees as they become due from Customer, and shall be reflected
on the first monthly invoice following completion of their computation. Upon
termination of this Agreement any unused credit or portion thereof shall be
applied by FDR against the amounts due from Customer pursuant to Section 9.4 or
Section 9.6 and any remaining amount shall be paid to Customer.
4.8 ADDITIONAL CREDIT. In consideration of Customer's execution of this
Agreement, FDR shall pay to Customer, by check, the non-refundable amount of
$400,000 within seven (7) business days of the execution of this Agreement.
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ARTICLE 5
INDEMNIFICATION
5.1 CUSTOMER'S INDEMNIFICATION. Subject to the provisions of Article 6 of
this Agreement, Customer shall indemnify, protect and hold harmless FDR and its
directors, officers, employees, agents and Affiliates and their assigns from and
against any and all claims, liabilities, demands, disputes, losses and damages
together with all costs, charges and expenses (including reasonable attorney
fees, expert witness fees, expenses and costs of settlement) imposed in any
manner upon or accruing against FDR, its directors, officers, employees, agents,
Affiliates or their assigns arising out of or with respect to:
(a) The negligence of Customer;
(b) The breach by Customer of any representation or warranty of Customer
set forth in Section 11.2 of this Agreement, including but not limited to any
amount which FDR may be called upon to pay under the applicable rules of VISA or
MasterCard with respect to any Interchange obligations of Customer following the
failure of FDR to receive any Daily Amount; or
(c) FDR's payment of fees and charges relating to Customer's Accounts
pursuant to Section 12.11, Trailing Activity.
Customer will, at its own expense, at Customer's election or if FDR, its
Affiliates or their assigns so request, defend any action or proceeding brought
against FDR, its Affiliates or their assigns, in connection with any such claim
liability, demand or dispute. Customer shall not have any obligation to
indemnify FDR against any claim, liability, loss or damage that FDR or its
directors, officers, employees, agents or Affiliates may suffer arising out of
FDR's negligent performance of any of the services provided under this Agreement
or out of the willful misconduct of FDR, its employees or agents.
5.2 FDR'S INDEMNIFICATION. Subject to the provisions of Article 6 of this
Agreement, FDR shall indemnify Customer and its directors, officers, employees,
agents and Affiliates and their assigns from and against any and all claims,
liabilities, demands, disputes, losses and damages together with all costs,
charges and expenses (including reasonable attorney's fees, expert witness fees,
expenses and costs of settlement) imposed in any manner upon or accruing against
Customer, its directors, officers, employees, agents, Affiliates or their
assigns arising out of or with respect to (a) FDR's negligence or negligent
performance of any of the services provided under this Agreement; (b) the breach
by FDR of any representation or warranty set forth in Section 11.1 of this
Agreement; or (c) 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, FDR services, any proprietary software of FDR
provided in connection with this Agreement, any Enhancements or work product
created by FDR pursuant to Section 2.8 above, or any part thereof, except to the
extent such claim is caused by or arises from (i) Customer's failure to use the
FDR System as permitted under this Agreement; (ii) Customer's use of the FDR
System or FDR services in combination with other software or systems not
expressly authorized by FDR; (iii) if all or part of the FDR System may be used
in either a way that does not infringe a United States patent of a third party
or in a way that does infringe such
16
patent, any claim alleging infringement by the FDR System due to the way
Customer chooses to configure the FDR System, provided that if Customer
requests, pursuant to Section 2.8(a), that FDR assist Customer in configuring
the FDR System, or that FDR configure the FDR System on Customer's behalf in
accordance with Customer's instructions, then FDR will, prior to agreeing in
writing pursuant to Section 2.8(a) to furnish such assistance, disclose to
Customer all material information relating to any actual infringement claims
arising from the requested configuration of which FDR has Actual Knowledge; (iv)
services or portions of services where FDR does not provide each and every
element of the patented functions of the allegedly infringing process or systems
covered or implicated by any of the United States patents within the patent
portfolio held by Xxxxxx X. Xxxx Technology Licensing, LP and any related
patents, provided that if Customer requests, pursuant to Section 2.8(a), that
FDR assist Customer in configuring the FDR System, or that FDR configure the FDR
System on Customer's behalf in accordance with Customer's instructions, then FDR
will, prior to agreeing in writing pursuant to Section 2.8(a) to furnish such
assistance, disclose to Customer all material information relating to any actual
infringement claims arising from the requested configuration of which FDR has
Actual Knowledge; (v) the combination of the FDR System or FDR services with
software, systems, hardware or processes which are not provided by FDR; or (vi)
actual or alleged infringement of United States patent number 5,025,372, titled
"System and Method for Administration of Incentive Award Program Through the Use
of Credit". For purposes hereof, "Actual Knowledge" means, subject to any
applicable confidentiality restrictions, the actual knowledge, as of the date
hereof, of the seven attorneys currently employed by FDR in the general
counsel's office, of infringement claims involving United States patents which
have been made in writing against FDR after December 31, 1999, or which have
been made in writing against an FDR customer after December 31, 1999 where a
copy of which such writing has been provided to the attorneys in the FDR general
counsel's office, and the actual knowledge acquired by the attorneys then
employed by FDR in the general counsel's office of infringement claims involving
United States patents which may hereafter be made in writing against FDR, or
which may hereafter be made in writing against an FDR customer where a copy of
such writing has been provided to the attorneys in the FDR general counsel's
office, it being understood that the attorneys of the FDR general counsel's
office have not and will not be required to undertake any inquiry or review of
any other employees or representatives of FDR or of any public records or
information from any source whatsoever.
FDR will, at its own expense, if Customer, its Affiliates or their assigns
so request, defend any action or proceeding brought against Customer, its
Affiliates or their assigns, in connection with any such liability, claim,
demand or dispute. FDR shall not have any obligation to indemnify Customer
against any claim, liability, loss or damage that Customer or its assigns or
their respective directors, officers, employees or agents may suffer arising
solely out of Customer's negligent performance under this Agreement or solely
out of the willful misconduct of Customer, its employees or agents.
5.3 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
17
defend, compromise, or settle the third party claim, suit 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.
5.4 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
claim, suit or proceeding for which indemnification is claimed or
(b) With respect to claims for indemnification pursuant to Section 5.2(c),
five years after the earlier of the termination of this Agreement or the
expiration of the Term of this Agreement; and with respect to all other claims
for indemnification, two years after the earlier of the termination of this
Agreement or the expiration of the Term of this Agreement.
ARTICLE 6
LIMITATION OF LIABILITY
6.1 LIMITATION ON LIABILITY. (a) Except as provided in Section 6.1(b), the
cumulative liability of each party for any loss or damage, for any cause
whatsoever (including, but not limited to any representations made by such party
pursuant to Section 11.1, Section 11.2 or any other cause arising out of or
related to this Agreement) with respect to claims relating to events in any one
Processing Year shall not under any circumstances exceed 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 Minimum Processing Fees specified in Section 4.5.
(b) Notwithstanding the limitation of liability provided in Section 6.1
(a), in the event the liability of a party arises as a result of:
(i) a breach of its obligations under Article 10;
(ii) in the case of FDR, a claim or action that may be asserted or
brought against Customer for which FDR is required to indemnify pursuant
to Section 5.2(c) above or relating to software provided by other
third-party software vendors;
(iii) the wrongful intentional misconduct of such party; or
18
(iv) the gross negligence of such party;
then the cumulative liability of such party for any such loss or damage for any
cause whatsoever (including, but not limited to, any representations made by
such party pursuant to Section 11.1 or Section 11.2, as the case may be) or any
other cause arising out of or related to this Agreement with respect to claims
relating to events in any one Processing Year shall not under any circumstances
exceed two times 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, two times the Minimum Processing Fee
specified in Section 4.5.
6.2 NO SPECIAL DAMAGES. EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF A
BREACH OF SECTION 6.1(b)(i), (ii) or (iii), IN NO EVENT SHALL FDR OR CUSTOMER BE
LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT
OF THE PARTIES REGARDLESS OF WHETHER OR NOT FDR OR CUSTOMER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 7
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTION 11.1 HEREIN, FDR SPECIFICALLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED ARISING OUT OF OR
RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, EACH OF
WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES. FDR AND CUSTOMER HEREBY
AGREE THAT FDR'S OBLIGATIONS TO CUSTOMER ARE RELATED TO FDR PROVIDING SERVICES,
THAT THIS AGREEMENT IS A SERVICE AGREEMENT FOR PURPOSES OF THE UNIFORM
COMMERCIAL CODE AND THEREFORE THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE
SHALL NOT APPLY TO THIS AGREEMENT.
ARTICLE 8
TERM OF AGREEMENT
8.1 TERM. This Agreement is effective from the date hereof and shall
extend for four (4) Processing Years (the "Original Term"). Processing Year 1 of
the Term shall commence on January 1, 2002 and continue through December 31,
2002. For purposes of this Agreement, a Processing Year means Processing Year 1
and each twelve (12) month period commencing on the first day following
completion of the immediately-preceding Processing Year and ending on the last
day of the twelfth (12th) month thereafter.
8.2 RENEWAL. After the Original Term, this Agreement shall automatically
be renewed for one (1) period of one (1) Processing Year, (a "Renewal Term")
unless either party
19
gives the other party written notice at least six (6) months prior to the
termination date of the Original Term that the Agreement will not be renewed.
ARTICLE 9
TERMINATION
9.1 TERMINATION OF AGREEMENT BY FDR. Despite anything to the contrary
herein contained, FDR, at its option, may terminate this Agreement under the
following circumstances:
(a) If Customer fails to maintain the account established in Section 4.3
during the Term of this Agreement;
(b) If FDR is unable to receive payment from Customer because sufficient
funds are not available in the account established pursuant to Section 4.3 and
Customer, within twenty-four (24) hours after written notice to Customer, fails
to provide and maintain sufficient funds in the account to permit FDR to receive
full payment 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
Section 9.1(b) whether or not the notice is given;
(c) Immediately without notice upon the termination of Customer's
membership in VISA or MasterCard or either of their successors in interest with
the effect that Customer has membership in neither VISA nor MasterCard or their
respective successors in interest, or if FDR has the right to give notice to
MasterCard and VISA (or to one of them if Customer is not then a member of both)
under Section 12 whether or not the notice is given (provided, however, that if
such notice of termination is effective to a Customer's Affiliate but not
Customer, then such termination shall not give FDR the right to terminate this
Agreement in relation to Customer or to any other Customer's Affiliate);
(d) If Customer fails to pay any Daily Amount when required under Article
12 of this Agreement and does not cure the failure within four (4) hours after
written notice to Customer 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 Section 9.l(d) 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 within twenty-four (24) hours 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 pursuant to Section
12 for more than ten (10) consecutive days or for more than twenty (20) days in
any Processing Year;
(g) Immediately without notice to Customer, if any Insolvency Event occurs
with respect to Customer.
The rights of FDR to terminate under this Section 9 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.
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9.2 TERMINATION BY CUSTOMER. Despite anything to the contrary herein
contained, Customer, at its option, may terminate this Agreement under the
following circumstances:
(a) Immediately without notice to FDR in the event any Insolvency Event
occurs with respect to FDR;
(b) Pursuant to the provisions of Section 13.2, with respect to the
Performance Standards; and
(c) Immediately upon notice to FDR, if FDR, in connection with a merger or
acquisition, acquires, directly or indirectly: (i) substantially all of the
assets of a competitor of Customer; or (ii) more than fifty percent (50%) of the
outstanding voting stock of a competitor of Customer. For purposes of this
Section 9.2(c), a competitor of Customer shall be defined as each of the top
fifty commercial card issuers based on managed balances as set forth on the most
recently published (determined as of the date of the acquisition) Xxxxxx list of
credit card issuers, or, if such list shall cease to exist, on the Xxxxxxxx and
Xxxx list of credit card issuers, or, if such list shall cease to exist, on the
American Banker list of credit card issuers.
The rights of Customer to terminate under this Section 9.2 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.
9.3 EFFECT OF TERMINATION. Upon the termination of this Agreement, FDR
shall have no further obligation to provide services to Customer and all
outstanding unpaid amounts due and owing to FDR under the terms of this
Agreement shall become immediately due and payable and any amount due to
Customer for services provided in the Processing Year in which this Agreement is
terminated shall become immediately due and payable by FDR. The termination of
this Agreement 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 Sections 9.4, 12.11
and Article 4.
(b) Any rebate or other payment due to Customer for services provided in
the Processing Year in which this Agreement is terminated.
(c) The obligations in Section III of Exhibit A in connection with the
InfoSight Software;
(d) The provisions of Article 5 or any other indemnification obligations
of either party;
(e) The provisions of Article 6;
(f) The provisions of Article 7;
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(g) The provisions of Article 10 or any other confidentiality obligations
of either party;
(h) The obligation of FDR to provide Deconversion assistance as provided
in Section 9.6;
(i) The obligation of FDR to provide services under this Agreement
following receipt of the notice of termination and prior to the effective date
of the termination of the Agreement and until Deconversion is complete; and
(j) The license in the Enhancements granted pursuant to Section 2.8(b)
above and the rights in information and materials incident to Evolve Customer
Modifications which are recognized in Section III.E. (2)(b)(ii) of Exhibit "A".
9.4 PAYMENTS UPON TERMINATION. Despite anything in this Agreement to the
contrary, if FDR terminates this Agreement pursuant to Section 9.1 at any time
prior to the expiration of the Term, Customer shall pay to FDR upon the
termination, and prior to Deconversion, an amount equal to the sum of:
(a) Minimum Processing Fees, as set forth in Section 4.5, for the
Processing Year in which the termination occurs (after crediting Customer for
any Processing Fees paid for services provided in the Processing Year); and
(b) Liquidated Damages calculated as set forth in Section 9.5.
9.5 LIQUIDATED DAMAGES. (a) The prices for services under this Agreement
were determined by mutual agreement based upon certain assumed volumes of
processing activity and the length of the Term of this Agreement.
(b) Customer acknowledges that without the certainty of revenue from the
Minimum Processing Fees provided in Section 4.5, FDR would have been unwilling
to provide processing services at the prices set forth in this Agreement.
(c) The parties agree it would be difficult or impossible to ascertain
FDR's actual damages for a termination by FDR pursuant to Section 9.1 hereof
before the end of the Term. The parties further agree that an amount equal to
the sum of (i) 25% of the sum of the present values of the Minimum Processing
Fees in each full Processing Year which remains during the Term of this
Agreement, plus (ii) the product of $8,500 multiplied by the number of months,
if any, which remain in the Original Term (the "Liquidated Damages") is a
reasonable estimation of the actual damages which FDR would suffer if FDR were
to fail to receive the processing business for the full Term.
(d) In determining the present value of any amount, an interest rate equal
to the three (3) month Treasury Xxxx Rate, as quoted by The Wall Street Journal
as the rate in effect on the date on which termination occurs, shall be assumed
and the payments shall be assumed to be made on the first day of each Processing
Year.
22
(e) The parties hereby agree that (i) no later than nine (9) months prior
to Deconversion FDR shall provide Customer a good faith estimate of the
Liquidated Damages owed to FDR by Customer for a termination hereunder and that
Customer shall pay 50% of such estimated amount six (6) months prior and the
balance of such estimated amount three (3) months prior to Deconversion; (ii) no
later than 90 days after the completion of Deconversion, FDR shall provide
Customer a calculation of actual Liquidated Damages owed to FDR by Customer for
a termination hereunder (accompanied by appropriate worksheets and backup
documentation) and (iii) no later than 30 days after the receipt by Customer of
such calculation, Customer shall pay to FDR the amount by which the calculated
amount exceeds the estimated amount or, alternatively, FDR shall pay to Customer
the amount by which the estimated amount exceeds the calculated amount.
(f) Each party acknowledges and agrees, after taking into account the
terms of this Agreement and all relevant circumstances at the date hereof, that
the Liquidated Damages payable under this Section 9.5 represent a reasonable and
genuine pre-estimate of the damages which would be suffered by FDR in the event
of early termination of this Agreement and do not constitute a penalty.
(g) Despite the foregoing, nothing in this Agreement shall limit FDR's
right to recover from Customer:
(i) any amounts advanced by FDR on behalf of Customer or for
Interchange Settlement;
(ii) any amounts for which Customer is liable other than for
Processing Fees; or
(iii) any payment under any provision for indemnification under this
Agreement.
(h) Nothing in this Agreement shall limit the right of any party to this
Agreement to seek injunctive relief, to the extent available, in respect of
breaches of this Agreement.
(i) Despite the foregoing, nothing in this Agreement shall limit
Customer's right to recover from FDR any payment under any provision for
indemnification under this Agreement.
9.6 DECONVERSION. Upon the termination for any reason or the expiration of
this Agreement, Customer and FDR shall mutually, expeditiously and in good faith
proceed to agree upon and document a Deconversion project plan, which the
parties contemplate may involve a six (6) to nine (9) month time frame for
completion and implementation. As part of the Deconversion project plan, FDR
shall perform, and Customer shall pay FDR, at FDR's then current rates, for
system and programming related activities required to accomplish the
Deconversion and for all costs and expenses, including postage or shipping
costs, associated with transferring Customer's files from the FDR System to the
internal or third-party provided data processing system which Customer has
selected, and of complying
23
with Section 10.1, provided, however, that if this Agreement is terminated by
Customer pursuant to Section 9.2(a), 9.2(b) or 9.2(c), then FDR shall pay for
all activities completed by FDR in order to accomplish the Deconversion and for
all costs of FDR, including postage or shipping, associated with complying with
Section 10.1. In connection with the services which FDR is required to perform,
FDR shall transfer all Customer data and the data of files in machine-readable
magnetic tape media, including but not necessarily limited to, as applicable,
the following files and any new data files that may be incorporated into this
Agreement: Cardholder Master Files, Company Master Files, Merchant Master Files,
Agent Bank Master Files, Cardholder Revolving Transaction Files, CIS Memo Files,
CIS Statement Files, Collection Files, MSR Files and Non-Monetary Files (if
applicable). FDR agrees to assign, at no additional charge, a project
coordinator in connection with the Deconversion. In addition, upon (i) transfer
by Customer of any accounts from the FDR System to a third party, (ii)
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 (iii) manual removal by Customer of any accounts from the FDR System,
except in connection with the CCAD Implementation or a termination of this
Agreement by Customer as provided above, 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.
ARTICLE 10
CONFIDENTIAL NATURE OF DATA
10.1 CUSTOMER'S PROPRIETARY INFORMATION. FDR agrees to return to Customer
upon the expiration or termination of this Agreement, and within 45 days after
written request from Customer, all or any requested portion of the proprietary
and confidential data of Customer including, without limitation, the data listed
below ("Customer's Masterfiles"):
Cardholder Master Files CIS Memo Files
Cardholder Flap Files CIS Statement Files
CIF File Monetary History
Collection Master Files Cardholder Revolving
Additional Names Master Files Transaction Files
PIN File Company Master Files
Live Authorizations PCF Files
Monthly Statement Record (MSR) Quarterly MSR Files (RDT) and any
Files other Customer files created
FDR shall not obtain any proprietary rights or right of use (except such use as
is necessary for FDR to perform its obligations under this Agreement) in any
proprietary or confidential information concerning Customer, including without
limitation, Customer's Masterfiles, Customer's investments, products, services,
financial plans, strategies and customer data (including, without limitation,
names, addresses and any other characteristics, identifying information or
aspects of the past, present or prospective customers of Customer, including any
customer information subject to the Xxxxx-Xxxxx-Xxxxxx Act or similar federal or
state laws regarding privacy or security of customer information, and their
implementing regulations or agency guidances); software, systems, system
architecture, methodologies, data and data formats; any intellectual property of
any third party licensed to or held or used by Customer, and any confidential
information of a third party held by Customer; and any documentation related to
each of the foregoing, whether transmitted or conveyed digitally, orally, in
writing, in the form of drawings, or perceived or observed by FDR while
performing services, and whether provided
24
by Customer and/or its Affiliates prior to the date of this Agreement or
provided during the term of this Agreement ("Customer's Proprietary
Information").
10.2 FDR'S PROPRIETARY INFORMATION. FDR shall retain sole and exclusive
ownership in all works of authorship, ideas, concepts, know-how and inventions,
whether or not patentable, created or conceived by FDR in the course of
providing the services under this Agreement; however, Customer shall have the
limited license and other rights which are referenced in Section 9.3(j) above.
Customer acknowledges that FDR, in its sole discretion, may provide to other
customers, similar services to those outlined in this Agreement utilizing any of
the intellectual property owned or licensed by FDR as referenced in this
Agreement. 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, whether owned or licensed or otherwise
provided by FDR; User Manuals; screen displays and formats; computer software;
methodologies; systems; products; system architecture; documentation related to
each of the foregoing, in each case, whether owned, licensed or otherwise
provided or used by FDR; software performance results; flow charts and other
specifications (whether or not electronically stored); FDR 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 agrees 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,
FDR and its Affiliates shall keep confidential and not disclose, and shall cause
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 the other party. Each party will restrict access to the Agreement to
those employees, representatives, agents and independent contractors who have a
"need to know" with respect to their employment or engagement.
10.4 CONFIDENTIALITY. FDR and Customer agree to 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:
(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 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 or to supervisory or regulatory authorities
of Customer or FDR;
(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;
25
(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; and
(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.
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, and FDR agrees that FDR's Proprietary Information may be
made available by Customer to VISA, MasterCard or to supervisory or regulatory
authorities of Customer upon written request of any of the foregoing. Each party
which releases the other's Proprietary Information pursuant to this Section 10.5
shall provide the other party with reasonable prior written notice of each such
release, unless the release is in the ordinary course of business as
contemplated by this Agreement.
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) That party rightfully possessed before it received the information
from the other as evidenced by written documentation;
(b) Subsequently becomes publicly available through no fault of that
party;
(c) Is subsequently furnished rightfully to that 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 an employee, agent or contractor of such
party; or
(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.
10.7 REMEDY. In the event of any breach of this Article 10, the parties
agree that the non-breaching party will suffer irreparable harm and the total
amount of monetary damages for any injury to the non-breaching party from any
violation of this Article 10 will be impossible to calculate and will therefore
be an inadequate remedy. Accordingly, the parties agree that the non-breaching
party shall be entitled to temporary and permanent injunctive relief against the
breaching party, its employees, officers, directors, agents, representatives or
independent contractors, and the other rights and remedies to which the
non-breaching party may be entitled at law or 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.
26
ARTICLE 11
REPRESENTATIONS
11.1 FDR'S REPRESENTATIONS. FDR represents and warrants that:
(a) It is a corporation validly organized and existing under the laws of
the State of Delaware;
(b) It has full power and authority under its organizational documents and
the laws of the State of Delaware to execute and deliver this Agreement and to
perform its obligations hereunder;
(c) It has by proper action duly authorized the execution and delivery of
this Agreement and when validly executed and delivered this Agreement shall
constitute a legal, valid and binding Agreement of FDR enforceable in accordance
with its terms;
(d) 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 its
organizational documents or under the terms and conditions of any documents,
agreements or other writings to which it is a party;
(e) It has, and for the Term of this Agreement, will continue to have the
right to use all software and documentation it uses in connection with the FDR
System, the right to grant to Customer the license or right to use, for purposes
and in the manner set forth in this Agreement, all software and documentation
licensed to Customer by FDR under this Agreement, and the right to provide to
Customer any other software, services or documentation provided or made
available by FDR in connection with this Agreement;
(f) The FDR System and all software developed or provided by FDR in
connection with this Agreement will: (i) at a minimum perform in accordance with
the Performance Standards set forth in Exhibit "C" and (ii) be modified if such
modifications are required by the applicable operating rules of VISA and
MasterCard relating to the business of Customer as soon as practicable after FDR
has been notified of such modifications by VISA or MasterCard; provided,
however, that if such modifications cannot reasonably be implemented, then FDR
shall provide Customer with reasonable alternatives to allow Customer to comply
with such requirements; and
(g) It will perform all services under this Agreement in a professional
manner, consistent with generally accepted standards in FDR's industry.
11.2 CUSTOMER'S REPRESENTATIONS. Customer represents and warrants that:
(a) It is an Industrial Loan Corporation validly organized and existing
under the laws of the State of Utah;
(b) It has full power and authority under its organizational documents and
the laws of the State of Utah to execute and deliver this Agreement and to
perform its obligations hereunder;
27
(c) It has by proper action duly authorized the execution and delivery of
this Agreement and when validly executed and delivered this Agreement shall
constitute a legal, valid and binding agreement of Customer enforceable in
accordance with its terms; and
(d) 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 its
organizational documents or under the terms and conditions of any documents,
agreements or other writings to which it is a party.
ARTICLE 12
TRANSACTION SETTLEMENT
12.1 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.
12.2 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
must 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.
12.3 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.
12.4 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
28
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.
12.5 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 and/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.
12.6 NO INDEPENDENT OBLIGATION. The obligation of FDR to discharge any
VISA or MasterCard Interchange obligations of Customer 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.
12.7 VIOLATION OF RULES. In the event that MasterCard or VISA shall notify
FDR of any material 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 such
time as FDR shall have been notified by MasterCard or VISA that the violation
has been corrected.
12.8 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.
12.9 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
29
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.
12.10 RESTRICTIONS ON SETOFF. Customer agrees to discharge its Interchange
Settlement obligations to FDR under this Article 12 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 pursuant to this Article 12 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 to FDR pursuant to this Article
12.
12.11 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
Section 12 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.
12.12 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 9.6 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 authorizes 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 9.6 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.
ARTICLE 13
PERFORMANCE STANDARDS
13.1 FDR'S PERFORMANCE. While this Agreement is in effect, FDR shall at
all times maintain the necessary telephone lines, computer capacity and staff
necessary to provide services
30
in accordance with the performance standards set forth in Exhibit "C" (the
"Performance Standards").
13.2 PERFORMANCE REPORTS. (a) As soon as practicable, but in no event
later than the twenty-fifth (25th) day of each calendar month, FDR agrees to
provide Customer with a monthly report setting forth its actual performance
during the just concluded calendar month with respect to the key measurement of
each Performance Standard set forth in Exhibit "C". FDR management will review
the monthly reporting package provided to Customer, for accuracy. On an annual
basis, FDR and Customer will review the Performance Standards set forth in
Exhibit "C" and, if agreed, will update and revise the key measurements and/or
Performance Standards to reflect any change in Customer's business needs or
technology improvements by FDR. From time to time, as new products and services
(including interfaces) are utilized by Customer, FDR and Customer mutually agree
to consider adding the appropriate metrics to Exhibit C in respect of such new
products and services, and to revise this Article 13 as appropriate.
(b) The Performance Standards set forth in Exhibit "C" are divided into
two Categories. FDR's performance with respect to the Performance Standards in
each Category during the just concluded calendar month will be managed as
follows: (i) Category I - Achievement by FDR of all four (4) of the Category I
Performance Standards constitutes a Successful Month for which Customer will pay
FDR a service level agreement ("SLA") incentive payment equal to one percent
(1%) of the Processing Fees (but not to exceed $10,000) payable by Customer for
such month ("Monthly Processing Fees"); failure by FDR to achieve any one (1) of
the Category I Performance Standards constitutes a Failed Month for which FDR
will pay Customer an SLA remedy payment equal to one percent (1%) of Monthly
Processing Fees (but not to exceed $10,000); and (ii) Category II - Achievement
by FDR of all ten (10) Category II Performance Standards constitutes a
Successful Month for which Customer will pay FDR an SLA incentive payment equal
to one-half of one percent (.5%) of Monthly Processing Fees (but not to exceed
$5,000); failure by FDR to achieve any five (5) of the Category II Performance
Standards constitutes a Failed Month for which FDR will pay Customer a remedy
payment equal to one-half of one percent (.5%) of Monthly Processing Fees (but
not to exceed $5,000). All SLA incentive payments payable by Customer and all
SLA remedy payments payable by FDR with respect to any month will be netted. Any
resulting net SLA incentive payment will be billed and any resulting net SLA
remedy payment will be credited to Customer on Customer's next monthly invoice
following quarter end. For a period of three (3) months from the date of this
Agreement, no remedy or incentive payments will be exchanged related to or for
Category II Performance Standards.
(c) If, during any twelve (12) consecutive months, FDR's actual
performance is less than or equal to the termination performance level (i) for
any Category I Performance Standard in any three (3) months or (ii) for any
Category II Performance Standard in a total of five (5) months (provided,
however, that any month in which FDR's performance is less than or equal to the
termination performance level with respect to Performance Standards in both
Category I and Category II shall be included only in the number of months
required for termination with respect to the Category I Performance Standard),
then Customer, at its election, may terminate this Agreement; provided that this
termination option is exercised by Customer by written notice to FDR within
ninety (90) days after the receipt by Customer of the monthly performance report
for
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such third or fifth month, as applicable. In such event, the Deconversion
associated with such termination by Customer shall be commenced not more than
nine (9) months following Customer's delivery of such notice of termination to
FDR and shall be concluded not more than eighteen (18) months following
Customer's delivery of such notice of termination to FDR.
(d) 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 Standards, the remedy payments and/or termination upon FDR failure
as set forth herein are Customer's sole and exclusive remedies and that Customer
elects to waive any and all other remedies to which Customer might otherwise be
entitled under this Agreement, at law or in equity, except as expressly provided
in Section 5.2.
(e) Consistent with their prior course of dealing, FDR and Customer will
work together in good faith to resolve any issues which may from time to time
arise with respect to FDR's performance of the services provided pursuant to
this Agreement.
ARTICLE 14
GENERAL
14.1 ASSIGNMENT. Except as otherwise provided herein, the rights and
obligations of FDR under this Agreement are personal and not assignable, either
voluntarily or by operation of law, without the prior written consent of
Customer which consent shall not be unreasonably withheld; provided, however,
FDR may assign this Agreement to an Affiliate or to an Entity which acquires (by
merger, consolidation, sale of assets or otherwise) all or substantially all of
the assets of the business to which this Agreement relates upon thirty (30)
days' prior written notice to Customer without the prior written consent of
Customer, provided that such Affiliate or acquiring Entity is, in the reasonable
judgment of Customer, in a financial condition equal to or better than FDR.
Except as otherwise provided herein, the rights and obligations of Customer
under this Agreement 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; provided, however, that Customer may assign this
Agreement to an Affiliate of Customer or to an Entity which acquires (by merger,
consolidation, sale of assets or otherwise) all or substantially all of the
assets of the business to which this Agreement relates after delivering written
notice to FDR at least thirty (30) days prior to the effective date of such
assignment if such Affiliate or acquiring Entity is a member of VISA and/or
MasterCard as appropriate and the financial condition of the Affiliate or
acquiring Entity to which this Agreement shall be assigned is, in the reasonable
determination of FDR, equal to or better than the financial condition of
Customer at the time Customer elects to make such assignment.
14.2 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be
deemed or construed by the parties, or by any third party, to create the
relationship of partnership or joint venture between the parties hereto, it
being understood and agreed that neither the method of computing compensation
nor any other provision contained herein shall be deemed to create any
relationship between the parties hereto other than the relationship of
independent parties contracting for services and, for purposes of Interchange
Settlement only, the relationship of principal and agent as set forth in Section
12. Neither Customer nor FDR has, and shall not hold itself out as having, any
authority to enter into any contract or create any obligation or liability
32
on behalf of, in the name of, or binding upon the other except as specifically
provided in connection with the Interchange Settlement.
14.3 BUSINESS CONTINUITY PLAN. FDR has created a business continuity plan
(the "Business Continuity Plan"). By September 30 of each year FDR shall provide
Customer with a written summary of such Business Continuity Plan and will
provide Customer with a summary of the results of performance tests performed
for other FDR customers. Despite the foregoing, FDR reserves the right to change
such Business Continuity Plan from time to time during the Term of this
Agreement. At any time, upon Customer's request, FDR shall explain all changes
made to the Business Continuity Plan. Any such change shall not degrade the
quality of the Business Continuity Plan in a manner which has a material,
adverse impact on the services provided hereunder. FDR will undertake and make
all revisions to its Business Continuity Plan which are necessary to meet
regulatory agency contingency planning criteria. FDR's Business Continuity Plan
includes a time frame schedule for recovering critical business functions. FDR
will not discriminate against Customer by reason of size.
14.4 STATE LAW. This Agreement shall be governed by the laws of the State
of Nebraska as to all matters including validity, construction, effect,
performance and remedies without giving effect to the principles of choice of
law thereof. With respect to any claim arising out of this Agreement, Customer
irrevocably waives any objection which it may have at any time to the venue of
any suit, action or proceeding arising out of or relating to this Agreement
brought in the courts of the State of Nebraska and the United States District
Court located in the city of Omaha, Nebraska and Customer further waives any
claim that such suit, action or proceeding is brought in an inconvenient forum
and further irrevocably waives the right to object, with respect to such suit,
action or proceeding brought in any such court, that such court does not have
jurisdiction over Customer. For purposes of any such suit, action or proceeding
Customer agrees that any process to be served in connection therewith shall, if
delivered, sent or mailed in accordance with Section 14.5, constitute good,
proper and sufficient service thereof.
14.5 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: First Data Resources Inc.
00000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: President
Telecopy Number: 000-000-0000
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With a copy to: First Data Resources Inc.
00000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telecopy Number: 000-000-0000
If to Customer: Advanta Bank Corp.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx Xxxx
President
With a copy to: Advanta Corp.
Welsh and XxXxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn: Senior Vice President
Operations
And with an additional Advanta Corp.
copy to: Welsh and XxXxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn: Senior Vice President
and General Counsel
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.
14.6 HEADINGS. The section headings in this Agreement are solely for
convenience and shall not be considered in its interpretation. The recitals set
forth on the first page of this Agreement are incorporated into the body of the
Agreement. The Exhibits referred to throughout this Agreement are attached to
this Agreement and are incorporated into this Agreement. Unless the context
clearly indicates, words used in the singular include the plural, words in the
plural include the singular and the word "including" means "including but not
limited to."
14.7 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. Any course of
performance shall not be deemed to amend or limit any provision of this
Agreement.
14.8 FORCE MAJEURE AND RESTRICTED PERFORMANCE. If performance by either
party of any service or obligation under this Agreement, including 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
34
judicial authority or representative of any such government, or any other act or
omission whatsoever, whether similar or dissimilar to those referred to in this
clause, which are beyond the reasonable control of such party, the parties shall
perform their obligations pursuant to the Business Continuity Plan described in
Section 14.3 and such party shall be excused from the performance to the extent
of the prevention, restriction, delay or interference; provided, however, that
if non-performance or substandard performance on the part of FDR would, under
the other provisions of this Agreement, give Customer the right to terminate
this Agreement, Customer shall continue to have that right. 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 hereby
agrees that if, as a result of VISA exercising its rights under the VISA
Agreements with no default on the part of FDR, FDR is prevented or restricted by
VISA from performing embossing services for Customer, then FDR shall be excused
from the performance of such embossing services to the extent of such prevention
or restriction by VISA. FDR will give Customer prompt notice of any assertion of
this right by VISA and of any complaint by VISA or MasterCard that could lead to
a disruption of services by FDR.
14.9 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 provision a valid provision which most closely approximates the
intent and economic effect of the invalid provision.
14.10 AUDIT. From time to time during the Term of this Agreement, FDR will
engage 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 with a copy of the
results of the audit if Customer requests a copy in writing.
14.11 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.
14.12 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.
14.13 INFORMAL DISPUTE RESOLUTION. Any controversy or claim between FDR,
on the one hand, and Customer on the other hand, arising from or in connection
with this Agreement or the relationship of the parties under this Agreement
whether based on contract, tort, common law, equity, statute, regulation, order
or otherwise, ("Dispute") shall be resolved as follows:
35
(a) Upon written request of either FDR, on the one hand, or Customer, on
the other hand, the parties will appoint a designated representative whose task
it will be to meet for the purpose of endeavoring to resolve such Dispute.
(b) The designated representatives shall meet as often as the parties
reasonably deem necessary to discuss the problem in an effort to resolve the
Dispute without the necessity of any formal proceeding.
(c) Formal proceedings for the resolution of a Dispute may not be
commenced until the earlier of:
(i) the designated representatives concluding in good faith that
amicable resolution through continued negotiation of the matter does not
appear likely; or
(ii) the expiration of the thirty (30) day period immediately
following the initial request to negotiate the Dispute;
(iii) the expiration of the sixty (60) day period immediately
following notice from Customer of a dispute with respect to the accuracy
of the volumes, transaction types or prices associated with all or any
portion of an amount (as indicated on the appropriate invoice) drawn from
Customer's account in accordance with the provisions of Section 4.5;
provided, however, that this Section 14.13 will not be construed to prevent a
party from instituting formal proceedings earlier to avoid the expiration of any
applicable limitations period, to preserve a superior position with respect to
other creditors or to seek temporary or preliminary injunctive relief pursuant
to Section 10.7.
14.14 ARBITRATION. (a) If the parties are unable to resolve any Dispute as
contemplated by Section 14.13, such Dispute shall be submitted to mandatory and
binding arbitration at the election of either FDR, on the one hand, or Customer,
on the other hand (the "Disputing Party"). Except as otherwise provided in this
Section 14.14, 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 Customer or
FDR, and (C) is experienced in representing clients in connection with
commercial agreements (the "Basic Qualifications"). Within thirty (30) 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 thirty (30) days thereafter,
the two arbitrators so named will select a third neutral arbitrator from a list
provided by the AAA
36
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 the dismissed claim(s) or issue(s). The Federal Rules of
Evidence shall apply to the arbitration hearing. The party bringing a particular
claim or asserting an affirmative defense will have the burden of proof with
respect thereto. The arbitration proceedings and all testimony, filings,
documents and information relating to or presented during the arbitration
proceedings shall be deemed to be information subject to the confidentiality
provisions of this Agreement. The Arbitration Panel will have no power or
authority, under the Commercial Arbitration Rules of the AAA or otherwise, to
relieve the parties from their agreement hereunder to arbitrate or otherwise to
amend or disregard any provision of this Agreement, including, without
limitation, the provisions of this Section 14.14.
(d) Should an arbitrator refuse or be unable to proceed with arbitration
proceedings as called for by this Section 14.14, the arbitrator shall be
replaced by the party who selected such arbitrator, or if such arbitrator was
selected by the two party-appointed arbitrators, by such two party-appointed
arbitrators selecting a new third arbitrator in accordance with Section
14.14(b). Each such replacement arbitrator shall satisfy the Basic
Qualifications. If an arbitrator is replaced pursuant to this Section 14.14(d)
after the arbitration hearing has commenced, then a rehearing shall take place
in accordance with the provisions of this Section 14.14 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 Section 14.14(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.
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(g) Any award rendered by the Arbitration Panel will be final,
conclusive and binding upon the parties and any judgment hereon may be entered
and enforced in any court of competent jurisdiction.
(h) Each party will bear a one-half share of all fees, costs and expenses
of the arbitrators, and, notwithstanding any law to the contrary, each party
will bear all the fees, costs and expenses of its own attorneys, experts and
witnesses; provided, however, that in connection with any judicial proceeding to
compel arbitration pursuant to this Agreement or to confirm, vacate or enforce
any award rendered by the Arbitration Panel, the prevailing party in such a
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.
14.15 JUDICIAL PROCEDURE. Nothing in Sections 14.13 or 14.14 shall be
construed to prevent any party from seeking from a court a temporary restraining
order or other temporary or preliminary relief pending final resolution of a
Dispute pursuant to Section 14.13 or 14.14.
14.16 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
Sections 14.13 and 14.14.
14.17 SERVICE SUPPORT; MEETINGS. FDR and Customer hereby agree to attend
and participate in quarterly service support meetings and monthly planning
meetings to review and discuss the then current services which FDR is providing
to Customer, the status of the FDR-Customer relationship, and any future
opportunities between FDR and Customer. The quarterly service support meetings
will include a review of Customer's then current service support levels. FDR
shall provide Customer with support as set forth more fully in the
"Advanta/First Data Service Plan" which has been agreed to by the parties, as
such document may be revised or supplemented from time to time by the mutual
agreement of the parties. As of the date of this Agreement, Customer's service
support will include the assistance of two (2) FDR support personnel dedicated
to understanding, defining and meeting Customer's needs, as well as the
assignment of a Client Business Executive and a Service Manager and the
additional personnel referenced in the Service Plan.
14.18 ENTIRE AGREEMENT. This Agreement, including Exhibits and the
executed Affiliate Agreements, if any, and that certain letter agreement between
the parties dated November 15, 2001 concerning First Data Integrated Analytics,
set forth all of the promises, agreements, conditions and understandings between
the parties respecting the subject matter hereof and supersede all negotiations,
conversations, discussions, correspondence, memorandums and agreements between
the parties concerning the subject matter. This Agreement may not be modified
except by a writing signed by authorized representatives of both parties to this
Agreement. 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.
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IN WITNESS WHEREOF, the parties to this Agreement have caused it to be
executed by their duly authorized officers as of the day and year first written
above. 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.
FIRST DATA RESOURCES INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ADVANTA BANK CORP.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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