DISCOVER AMENDMENT TO SERVICE AGREEMENT
Exhibit
10.22
DISCOVER AMENDMENT TO SERVICE AGREEMENT
This Discover Amendment to Service
Agreement (this “Amendment”) is made and
entered into as of this___ day of September, 2008 between First Data Merchant Services Corporation
(“FDMS”) and iPayment, Inc., formerly known as iPayment Holdings, Inc. (“Customer”).
RECITALS
A. Customer and FDMS have previously entered into the Service Agreement dated as of July 1,
2002, as previously amended (the “Service Agreement”).
B. DFS SERVICES LLC (f/k/a Discover Financial Services LLC) (“DFS or Discover”) and FDMS
are parties to an Acquirer Agreement dated July 12, 2006 (as subsequently amended, and including
the applicable Operating Regulations for Acquirers, the “FDMS Acquirer Agreement”), pursuant to
which FDMS may facilitate the processing and settling of Discover card Transactions (“Discover
Program”).
C. Customer desires for its Merchants to accept Discover cards and receive related processing
and settlement services for Discover card Transactions under the Service Agreement.
D. Customer and FDMS now desire to amend the Service Agreement as set forth herein.
AGREEMENT
FDMS and Customer hereby agree as follows:
1. The terms of this Amendment are effective as of the date set forth above.
2. Customer represents and warrants that it is approved by DFS to participate in the Discover
Program pursuant to an agreement between and executed by DFS and Customer (including the
Operating Regulations for Acquirers “Operating Regulations”) (“DFS Customer Agreement”).
3. FDMS will provide DFS with: (a) monthly reports of Customer’s activity in the Discover
Program; (b) additional information reasonably requested by DFS to allow DFS to enforce the DFS
Customer Agreement and related documents against Customer, including without limitation Discover
card transaction information; and (c) notice of the termination of FDMS’ processing services for
Customer pursuant to the Service Agreement.
4. As between Customer and FDMS: (a) FDMS shall have no liability to DFS with respect to
Customer’s performance or breach of its obligations under the DFS Customer Agreement; (b) Customer
shall have no liability to DFS with respect to FDMS’s performance or breach of its obligations
under the FDMS Acquirer Agreement; and (c) FDMS shall have no liability to Customer with respect to
the Discover Program so long as, with respect to the Discover Program, FDMS is performing its
obligations under the FDMS Acquirer Agreement in
accordance with the terms of such agreement, and FDMS has not breached its obligations under the
Service Agreement.
5. The parties acknowledge and agree that Customer will pay the fees set forth in Section II
of Exhibit B to the Service Agreement for each Discover Transaction.
6. Capitalized terms used but not otherwise defined in this Amendment will have the meanings
set forth in the Service Agreement. This Amendment constitutes the entire agreement between the
parties regarding the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings. In the event of a conflict between this Amendment and the Service
Agreement as it relates to the subject matter hereof, the terms of this Amendment shall control.
Otherwise, all terms and conditions of the Service Agreement shall likewise apply to this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth
above.
| FIRST DATA MERCHANT SERVICES CORPORATION | iPAYMENT, INC. | |||||||||
By:
|
By: | /s/ Xxxx Daily
|
||||||||
Name:
|
Name: | Xxxx Daily | ||||||||
Title:
|
Title: | CEO | ||||||||
